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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Administrative Law - Stare Decisis Considered

It is a long-standing doctrine that administrative law is not bound by 'stare decisis' [the 'administrative exemption' (my term)], while courts are. The simple version of stare decisis holds that legal precedents from higher courts should be followed until they are altered by that higher court. This simple version can be described a 'vertical stare decisis' and it makes sense for any system that values ordered coherence (there is a 'horizontal' stare decisis but that's not relevant for this issue).

The 'administrative exemption' essentially abolishes stare decisis in the administrative context by allowing different panels of the same tribunal to legitimately vary their legal interpretations. This doesn't happen often, as coherence has a natural value which is in-built to the human mind, but Canadian law persists in asserting that it's better that administrative law is not so 'restricted'. But the 'administrative exemption' is at pains to justify itself, to the point that (I think) it "doth protest too much" [Vavilov, para 112, 129]:
[112] Any precedents on the issue before the administrative decision maker or on a similar issue will act as a constraint on what the decision maker can reasonably decide. An administrative body’s decision may be unreasonable on the basis that the body failed to explain or justify a departure from a binding precedent in which the same provision had been interpreted. Where, for example, there is a relevant case in which a court considered a statutory provision, it would be unreasonable for an administrative decision maker to interpret or apply the provision without regard to that precedent. The decision maker would have to be able to explain why a different interpretation is preferable by, for example, explaining why the court’s interpretation does not work in the administrative context: M. Biddulph, “Rethinking the Ramifications of Reasonableness Review: Stare Decisis and Reasonableness Review on Questions of Law” (2018), 56 Alta. L.R. 119, at p. 146. There may be circumstances in which it is quite simply unreasonable for an administrative decision maker to fail to apply or interpret a statutory provision in accordance with a binding precedent. For instance, where an immigration tribunal is required to determine whether an applicant’s act would constitute a criminal offence under Canadian law (see, e.g., Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 35 to 37), it would clearly not be reasonable for the tribunal to adopt an interpretation of a criminal law provision that is inconsistent with how Canadian criminal courts have interpreted it.


[129] Administrative decision makers are not bound by their previous decisions in the same sense that courts are bound by stare decisis. As this Court noted in Domtar, “a lack of unanimity is the price to pay for the decision‑making freedom and independence” given to administrative decision makers, and the mere fact that some conflict exists among an administrative body’s decisions does not threaten the rule of law: p. 800. Nevertheless, administrative decision makers and reviewing courts alike must be concerned with the general consistency of administrative decisions. Those affected by administrative decisions are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision maker — expectations that do not evaporate simply because the parties are not before a judge.
In my mind, the amount of qualifiers that any administrative decision-maker must have regard to before they can 'safely' disregard stare decisis is so large, and the factors so naturally sensible, that we may as well not have an administrative exemption at all. It's a meaningless formal distinction, rather than a distinction of substance.

A recent Federal Court of Appeal decision, Canada (Attorney General) v. Hull (Fed CA, 2022) made this statement which suggests that it does not, as I do not, see any administrative 'stare decisis' problem:
[33] Thus, I find that the Appeal Division’s decision is unreasonable because it did not follow a binding precedent in which the same provision has been interpreted (Vavilov at para. 112).
New and challenging facts situations will alway arise in both tribunals and courts, and the social values that inform legal doctrine will change over time as well - we must unavoidably live with them. A far more straight-forward way to deal with this reality, especially if we are to respect the expertise of the various tribunals, is to allow them to openly address these new situations as the courts do - free to rely upon their skill and expertise to establish new gradual 'exceptions' to prior doctrines.

An recent example of the discomfort that even the courts have with stare decisis is found in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association (SCC, 2022). While that court had earlier anticipated several enumerated exceptions to the 'reasonableness' standard of review for JRs (where 'correctness' would apply) [in Vavilov, paras 17,53,69], the Entertainment Software case posed a new exception - that of situations of 'concurrent' jurisdiction by different legal bodies. The issue was what to do where one of the review routes called for a JR ('reasonableness'), and the other an appeal ('correctness') - ie. which standard of review to apply. Rather than just considering the problem mater-of-factly, and saying: 'hey, found another exception', the court engages in pointless (and almost competitive) formalistic posturing to justify itself [Entertainment Software, at para 42]:
[42] Nor do these reasons depart from Vavilov. Contrary to my colleague’s assertion, this Court never “chose not to make first instance concurrent jurisdiction an exception”: para. 125 (emphasis in original). When this Court wanted to reject the possibility of a certain correctness category, it did so expressly: see Vavilov, at paras. 71-72. Concurrent first instance jurisdiction was not discussed in Vavilov. Accordingly, I seek to give effect to Vavilov by considering whether treating concurrent first instance jurisdiction as a new correctness category furthers the framework and principles in Vavilov. With respect, I say that it is my colleague who departs from precedent by effectively reading the possibility of further correctness categories out of Vavilov.
My conclusion is that it doesn't really make much difference whether a court or a tribunal is 'bound by stare decisis'. If a decision-maker's overall reasons are compelling and coherent, we - and the higher court reviewers - should respect their 'new' interpretations and we will all be the richer for it. This is the essence of the common law system.


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