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Jurisdictional review: an error of jurisdiction or jurisprudence? Sidebotham, Naomi Elizabeth 1994

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JURISDICTIONAL REVIEW: AN ERROR OF JURISDICTION OR JURISPRUDENCE? by NAOMI ELIZABETH SIDEBOTHAM LL.B. (Hons), The University of Adelaide, 1991 B.A., The University of Adelaide, 1991  A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENT FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (Faculty of Law)  We accept this thesis as conforming to the required standard  THE UNIVERSITY OF BRITISH COLUMBIA April 1994 © Naomi Elizabeth Sidebotham, 1994  In  presenting  degree  this  at the  freely available copying  of  department publication  thesis  in  partial  fulfilment  of  University  of  British  Columbia,  I agree  for  this or of  reference  thesis by  this  for  his  and study. scholarly  or  thesis  for  her  I further  purposes  representatives.  of  L.s4t*J  The University of British Vancouver, Canada  Date  DE-6 (2/88)  A?"  h--  Columbia  W f  It  financial gain shall not  (Signature)  requirements that  agree  may  permission.  Department  the  be is  that  the  Library  permission  granted  by  understood be  for  an  advanced  shall for  the that  allowed without  make  it  extensive  head  of  my  copying  or  my  written  ii ABSTRACT During the past decade we have witnessed a vast growth in the volume and variety of discretionary powers, designed to achieve an array of social, economic and other objectives, conferred by government onto numerous administrative authorities.  The  potential width of these powers and the consequent possibility that they will be misused by the administrative decision maker necessitates that there exist some mechanism for ensuring that they are not so employed. This in turn raises the question of how such regulation of administrative decision making is to be best effected. Administrative law scholarship has for the most part presumed the courts to be the best mechanism. It has been characterised by an apparently insoluble debate over whether the courts should adopt an activist stance when reviewing exercises of discretion or whether they should rather exert restraint and defer to the expertise of the decision maker. The focus of this debate, and of judicial decisions, is on defining the ambit of a decision maker's power, or jurisdiction, as conferred in the empowering statute. It is asserted in this thesis that it is because courts and academic writers are concentrating on discerning conclusively these jurisdictional limits that this debate continues unresolved. It is argued that an alternative perspective of administrative law and the role of the courts in the administrative process is consequently demanded.  The current framework of discussion is critiqued throughout the thesis, and the concept of jurisdiction is critically examined from both a theoretical and practical perspective. It is asserted that the theoretical assumptions from which it is derived are misconceived  iii and that the impact of adhering to such a concept on the administrative process is considerable.  Consequently it is concluded that as a basis of review jurisdiction should be discarded. Once this is achieved it is contended that it may be possible to construct better ways of dealing with administrative discretionary powers that focus not on the role of the courts in correcting perceived mistakes in the decision making process but rather on promoting good decision making.  That is ensuring that decisions which best implement the  stipulated objectives of a particular power are achieved, without the need for the largely negative intervention of outside agencies.  iv TABLE OF CONTENTS Abstract  ii  Table of Contents  iv  Acknowledgement  vi  Introduction  1  A. The Need for External Review B. The Utility of Judicial Review  1 3  Chapter One: Judicial Review: The Endless Debate  10  A. Restraint or Activism? B. Jurisdiction as the Basis of Judicial Review 1. Dicey's Theory of the Rule of Law and the Origins of Jurisdictional Review 2. Academic Adherence to Jurisdiction as the Basis of Judicial Review 3. Judicial Adherence to Jurisdiction as the Basis of Judicial Review C. Correctness as the Basis of Jurisdiction 1. Judicial Adherence to the Standard of Correctness D. Conclusion  10 21  32 37 38 46  Chapter Two: The Challenge to Dicey's Theory  47  A. Introduction: General Criticisms B. The Indeterminacy of Statutory Language C. Illustrations of the Indeterminacy of Statutory Language 1. The Charter 2. Canada (Attorney General) v. Mossop 3. Dayco (Canada) Ltd. v. CAW - Canada D. Conclusion  47 53 58 58 59 63 66  22 29  V  Chapter Three: Jurisdictional Review: Effects and Consequences  68  A. Introduction B. The Veneer of Jurisdictional Review 1. Judicial Value Choices 2. Canada (Attorney General) v. Mossop 3. Other Human Rights Cases C. The Obfuscation of the Real Issues in a Dispute 1. Canada (Attorney General) v. Mossop 2. Bell v. Ontario Human Rights Commission D. Conclusion  68 69 69 73 79 88 91 92 94  Conclusion  98  Bibliography  106  VI  ACKNOWLEDGEMENT I would like to thank Professors Joel Bakan and Philip Bryden for their supervision, assistance and encouragement in the preparation of this thesis. I am also indebted to the Law Foundation of British Columbia for awarding me the fellowship that made this project possible. I would also like to thank my many friends for the inspiration and encouragement that they have provided throughout the writing of this thesis. In particular I would like to thank and acknowledge the support of Katrina Kelly, James Kwon, Joan Calderhead and Christopher Nowlin.  1 INTRODUCTION A. The Need for External Review. There occurred in the late nineteenth century, in response to an overall expansion in the perceived role of the state as the provider of social and economic justice and welfare, an outburst of regulatory legislation dealing predominantly with public health, the alleviation of poverty and industrial working conditions. The modern state has since continued to extend its authority into many areas of social and economic concern, assuming control over education, medical services, the creation and distribution of licences and the provision of income for a significant proportion of society through the distribution of social welfare and unemployment benefits. Planning, land use, resources management and protection of the environment have more recently been subsumed within this ambit of control.1 The magnitude and complexities of the regulatory task with which the state is thereby confronted necessitates that, if it is to fulfil adequately these objectives and obligations, it delegate discretionary powers to subordinate authorities. The underlying rationale for conferring such powers is that in pursuing broad policy goals, such as protection of the environment or social welfare and order, decision making must be purposive in that it must achieve, to the optimum degree, the stipulated objectives of a particular grant of power. This is promoted by administrative discretion. Flexible and open textured, this power vests the decision maker with the authority to choose which course of action would be the most appropriate in any particular instance. 1  1.  Consideration of the individual circumstances of a given case,  C. Harlow & R. Rawlings, Law and Administration (London: Weidenfeld & Nicholson, 1984) chapter  2 essential to purposive decision making is thereby engendered and a decision which best implements the objectives of a power effected.  Given the potential width of such powers and the consequent possibility of their misuse, there is demanded, in any democratic society, a mechanism for ensuring that they are not so employed. In light of the extension of state authority into such areas as the creation and distribution of licences, social welfare benefits and the like, there is an undeniable need to protect the rights of the individual against bureaucratic injustice.2 Indeed, given the potential ramifications of withholding a welfare benefit, for example, or refusing to renew a licence, on which a person's livelihood may depend, it is not difficult to accept that the exercise of discretion should be subject to some form of external supervision designed to eliminate, or at least minimise, its exercise otherwise than in accordance with the purposes specified in the empowering statute and having regard to other overriding standards of legality, such as propriety, relevance and reasonableness, by which the limits of a grant of discretion may be defined.  External review monitors the relative law  making functions of the legislature and administration, ensuring that the latter does not exceed the powers conferred on it by the former, and so transgress the will of parliament. It thereby not only protects the rights of the individual but, in addition, performs a useful and necessary democratic service, for, should the will of the democratically elected representative and politically accountable parliament, as expressed in the empowering statute and the other standards of legality, be transgressed by the 2  C. Reich, "The New Property" (1984) 73 Yale L.J. 733. See also K. C. Davis, Discretionary Justice: A Preliminary Inquiry (Baton Rouge: Louisiana State University Press, 1969).  3 unrepresentative and unaccountable administrative branch of government, the democratic element of our constitutional framework would be irretrievably undermined.  B. The Utility of Judicial Review. Immune from political pressure and independent of the executive, it is arguably the courts that are best suited to fulfilling this task. In Roncarelli v. Duplessis, for example, the revocation of Mr. Roncarelli's existing liquor licence and the blanket refusal to grant him any future licences because of his association with the Jehovah's Witnesses was undeniably a means by which he could be punished for his religious convictions and activities.3 The discretion to grant, refuse or revoke a licence was exercised, under the dictation of the Prime Minister of Quebec, with the intent of achieving this purpose through the destruction of Mr. Roncarelli's business interests.  Recognisant of the  impropriety of this motive and the irrelevance of Mr. Roncarelli's involvement with the Witnesses to his ability to hold responsibly a liquor licence, the Supreme Court of Canada held that the discretion had been exercised improperly.  It could not be  employed to deprive an individual of a licence on which his livelihood depended for reasons irrelevant to the holding of that licence.  Further demonstrating the advantages of judicial review is the British case of Wheeler v. Leicester City Council.4 In this case the House of Lords held unreasonable the Leicester  3  [1959] S.C.R. 121.  4  [1985] 2 All E.R. 1106.  4 City Council's decision to revoke the Leicester Rugby Football Club's licence to use its recreation ground for training. The council had put to the club a series of questions to which it was made clear that the club was to give affirmative answers, including whether it was opposed to and would condemn a proposed rugby tour to South Africa on the ground of its implicit support of apartheid, and whether or not it would press its players to withdraw from the tour. In response the club issued a statement that it was opposed to apartheid but that the decision to participate in the tour ultimately resided with the players themselves.  It was on the basis of what was deemed to be an inadequate  response by the club that the council revoked the licence in pursuance of its power to promote "good relations between persons of different racial groups."5 The issue which gave rise to the impugned decision was thus one of political and emotional sensitivity on which many opposing views might legitimately and reasonably be held. The decision to deny the club the use of the recreation ground could thus certainly be seen as a legitimate means by which the council could make its position clear to its multi-racial electorate. Hence, the council's decision should not have been open to review by the courts at all, for it was not manifestly absurd or unreasonable, nor was it vulnerable to attack on any of the other grounds of review.6 On the other hand, the doctrinaire manner in which the council sought to enforce its views and values by depriving the club of the use of the recreation ground on the basis of the latter's refusal to express accord with the council over such a complex and contentious issue on which a range of opinions  5 6  Race Relations Act (U.K.) 1976, s.71.  That is there was no basis upon which it could be argued that the decision was made for an improper purpose, took into account irrelevant considerations or failed to consider relevant ones.  5 could quite seriously be held, had a distinctly coercive and intolerant quality not in keeping with the United Kingdom's democratic values. For this reason it was castigated by the House of Lords as 'unfair' or 'unjust'.  From this it can be concluded that there certainly is a good case for having a system of review which is able to overturn offensive and disturbing decisions such as those in Wheeler and Roncarelli, and consequently that judicial review does serve a useful function within society.7 The courts have variously prevented ministers from exercising their powers for improper purposes, local government authorities from acting in a manner considered unacceptable and identified the boundaries of potentially overlapping administrative authorities. 8  Yet despite these instances of "good" judicial decision  making, judicial review is not always so laudable.  Hence the controversy over the  appropriate ambit of review.9 The objectives sought to be achieved, namely ensuring the legality of governmental decision making and upholding the democratic processes, are not articulated by the courts, and although, on occasion, judicial review does indeed serve these functions this is not always discernible from the decisions. This is because the courts are guided by a doctrine of jurisdictional review that shifts their focus of attention away from these objectives. As illustrated above this does not of necessity result in decisions that are always bad. It does however mean that the courts are not  7  For a discussion of those scholars who do support judicial review see chapter one at 16 - 18 below.  8  Canada (Attorney - General) v. Public Service Alliance of Canada (1991) 80 D.L.R. (4th) 520 (S.C.C.)  9  For a full discussion of this controversy see chapter one at 10 - 21 below.  6 addressing directly or consciously what they are seeking to achieve and are therefore arriving at decisions which do not consistently serve these functions. As a result judicial review appears erratic and inconsistent, and devoid of any semblance of coherence.  My objective in this thesis is to re-examine the role of the courts in modern government. That is, discern the extent, if any, to which the courts should be permitted to intervene in an exercise of administrative discretionary power to ascertain its legality, and so determine how best to regulate the relationship between the citizen and state. Prima facie this may appear to be more of the same, for debating the appropriate ambit of judicial review has proven to be a common endeavour. 10 The framework of discussion differs from the norm, however, in that my concern is not to seek a resolution of the debate but to illustrate that current scholarship misses the point entirely.  It is my  contention that the debate over the scope of judicial review is circular and so endless because courts and academic writers are obsessed with ascertaining the limits of a decision maker's power, that is jurisdiction, and so are failing to focus on the right questions. That is, the debate has been structured largely by this concern with defining the ambit of an administrative agency's jurisdiction and it is because of this factor that there exists an apparently insoluble debate over the appropriate ambit of judicial review. If progress is to be achieved and the circularity of debate broken this concentration on jurisdictional limits must be discarded. A more productive scrutiny of the role of the courts in administrative decision making is demanded. To this end I critically examine  See the bibliography for a selection of writings on this topic.  7 the assumptions and theoretical underpinnings of judicial review and evaluate how judicial and academic perceptions of the appropriate role of the courts in monitoring exercises of administrative discretionary power have been shaped. My focus is not, as has hitherto been the case, on discerning the appropriate extent of the courts power of review. Nor is it my concern to present a blueprint for reforming judicial review of administrative decision making. Rather my intention is simply to critique the current framework of discussion and so to refocus the debate away from the concern with identifying a decision maker's jurisdiction.  An alternative and more productive  perspective of administrative law is thereby afforded from which it may ultimately be possible for suggestions for reform to emerge.  Of necessity the first chapter comprises an introductory overview of relevant academic and curial polemic over the optimum degree of judicial review. Essentially this amounts to a dispute over whether the courts should adopt an increasingly interventionist stance in administrative decision making, or whether the judicial role ought to be more circumscribed. My objective is not to resolve this dilemma but, quite the contrary, to demonstrate both its circularity and consequent insolubility, and that these are attributes deriving from the predominance within judicial review of discerning the limits of a decision maker's jurisdiction. Academic writings and judicial decisions are employed to exemplify the stranglehold enjoyed by the jurisdictional question doctrine. I then explore the centrality to jurisdictional review of the idea that language is determinate and so statutory interpretation a straightforward exercise that can produce only one correct  8 reading of the statute. The argument running throughout is that jurisdiction, as an organizing principle of review, must be laid to rest if the dilemma over the apposite role of the courts in modern government is to be resolved.  The second chapter relegates jurisdictional review to its proper place in the history of administrative law and so discredits it as the basis of modern judicial review. It critically examines the theoretical foundations of jurisdictional review as the underpinning for judicial review, as derived from the Diceyan conception of the rule of law. In particular, the conception that statutes, and so jurisdiction conferring provisions, are capable of a correct interpretation is discredited as a basis for an entire legal discipline, and so it is concluded that jurisdiction has outlived its utility and so is devoid of validity and legitimacy. Consequently there exists no logical basis for, and so no barrier to the elimination of, jurisdiction as the guiding norm of judicial review.  The third chapter demonstrates that this concern with the doctrine of jurisdictional review is not of only academic interest, but that it does impact considerably upon the administrative process. It illustrates that value choices are made by decision makers when deciding cases and that these value choices are often determinative of the manner in which a statutory provision will be interpreted.  Consequently, it is argued, this  eventuates in a legalisation and narrowing of the considerations under examination, as they are conformed to this framework of jurisdictional control. Ultimately therefore the real issues in a dispute are obscured and so often forgotten or overlooked. Finally in the  9 conclusion a possible means of eliminating these problems, one which requires future analysis, is presented.  10 CHAPTER ONE  JUDICIAL REVIEW: THE ENDLESS DEBATE. A. Restraint or Activism? The pendulum has undoubtedly swung towards increased judicial intervention ... The problem is to determine how far judicial intervention should go.1 Establishing the appropriate ambit of judicial review of administrative discretionary decision making has proven to be one of the most contentious and problematic areas of administrative law.2 Courts and academic writers alike have sought relentlessly, yet with little success, to resolve the seemingly intractable dilemma of the limits of judicial review and the appropriate institutional relationship between the courts and the administrative branch of government.3 legitimate position.  On the one hand judicial activism is posited as the only  As prescribed by the theories of limited government and  parliamentary sovereignty the courts must exert supervisory jurisdiction over the administrative process.4  They must be accorded sufficient scope to ensure that  1  G. Brennan, "The Purpose and Scope of Judicial Review" in Taggart, M. ed., Judicial Review of Administrative Action in the 1980's: Problems and Perspectives (Auckland: Oxford University Press, 1986) 18 at 21. 2  What constitutes the administration and administrative law is a separate topic in itself worthy of analysis and as such will not here be dealt with. For present purposes it is sufficient to mention that those bodies which can be considered to fall within the administrative process include the executive, local authorities, tribunals and inquiries. See P. Craig, Administrative Law 1st edn. (London: Sweet & Maxwell, 1983) part 1 for a discussion of these issues. 3  The literature dealing with this topic is immense. See the bibliography for a selection of cases and academic writings in this area. 4  These theories provide the conceptual foundations of judicial review. That of limited government simply requires that each of three the institutions of government, the legislature, the executive and the judiciary, comply with their constitutionally assigned institutional boundaries, while that of parliamentary  11 administrative bodies do not act beyond their legislative mandate and so misuse their powers at the expense of the individual. Any occasional illegitimate judicial incursion into matters formally reposed in the original decision maker is justified as a necessary and acceptable consequence of fulfilling this essential task. Against this it is contended that the constitutional and other limitations on judicial power, deriving from the doctrine of the separation of powers and the adversarial process, and the ramifications of judicial intervention in the administrative process dictate that the courts exercise restraint. 5 It is in the interests of the community at large that they refrain from interfering with administrative decision making, or exercising themselves the impugned power. And so there is a polarisation between those theorists that advocate control of governmental power and protection of the individual and those that would rather promote efficient administration. The dilemma is that just as constitutional propriety demands that the courts exercise restraint so the need to contain unlawful executive action, a role constitutionally assigned to the courts, must be fulfilled.  Exponents of restricted review highlight the difficulties inherent in judicial activism of preserving the constitutional and practical limitations on judicial power.6 In particular, they emphasise the considerable potential for the courts to re-assess themselves the  sovereignty stipulates that parliament is supreme and that its will must at all times be complied with. It is for the courts to ensure that this legislative will is fulfilled, and that the limits of each institution's powers are not transgressed. 5 6  These limitations on judicial review are discussed at 12 - 14 below.  See for example A. Hutchinson, "The Rise and Ruse of Administrative Law and Scholarship" (1985) 48 M.L.R. 293; G. D. S. Taylor, "The Limits of Judicial Review" (1986 - 1987) 12 N.Z.U.L.R. 178.  12 merits of the challenged decision and substitute their own determination for that under review, thereby exercising themselves the power vested by parliament in the original decision maker. The concern is that ultimately this would eventuate in the imposition of individual judicial predilections on any question of policy inherent in the dispute before the court, thereby rendering judicial review a pseudo political process, one substantially indistinguishable from that of the executive. It is indeed trite law that it is the role of the courts when exercising review to examine only the legality of a decision. They must not usurp the function of the original decision maker and so substitute their own decision for that under review by entertaining an appeal on its merits or assessing its underlying policy considerations. This is a reflection of the democratic constitutional framework within which the courts must operate. The separation of powers doctrine, fundamental to this constitutional arrangement, stipulates that there be a clear division between the legislative, executive and adjudicative functions of government and that each be vested in a distinct and independent institution. One institution must never encroach upon the functions of another. Although the apparent rigidity of this doctrine has been rendered less stringent by the development of a system of 'checks and balances' which empowers each institution, through techniques such as judicial review, to ensure that these functional limitations are not exceeded, the judiciary is not thereby sanctioned to exceed its own constitutional mandate as expressed in this doctrine under the guise of monitoring the legality of decisions of the other two bodies and exercise themselves legislative or executive power.7 7  Should it do so the democratic element of our  D. Galligan, Discretionary Power, A Legal Study of Official Discretion (Oxford: Clarendon Press, 1986) at 228.  13 constitution that is sought to be protected by this doctrine would be threatened. For, while the legislature is democratically elected and so representative of and accountable to the people, and while the executive is directly accountable to parliament, the judiciary is neither democratically elected nor in any way politically accountable. To allow the courts to intervene in the merits of an impugned decision would be a dangerous encroachment upon the democratic process as the powers formally reposed in the elected representatives of the people come to be exercised by bodies which are neither democratically elected nor politically accountable.  Constitutional propriety and,  ultimately, the authority and legitimacy of judicial review itself would be irretrievably undermined.  On a more practical level the concern is that as the courts afford themselves with greater opportunity for increased intervention in areas dominated by considerations of policy, the imposition of judicial policy preferences is both countenanced and encouraged. This will inevitably place the courts at the centre of political controversy, as evidenced by such cases as Bromley London Borough Council v. Greater London Council and Secretary of State for Education and Science v. Tameside Metropolitan Borough Council,9 in both of which the decisions overturned by the House of Lords were arrived at following local elections in which the issues under examination featured prominently. Further, it will result in the inherent practical limitations on judicial power deriving from the adversarial  8  [1983] AC. 768.  9  [1977] A.C. 1014.  14 process being overlooked as the courts become increasingly concerned to deal with 'polycentric' issues for which they are neither institutionally nor in terms of expertise well equipped. 10  Judges are neither trained to make policy determinations, nor is the  adversarial process designed to facilitate judicial policy making. It is concerned only with the immediate dispute before the court as related in the evidence as presented by the parties, with no scope for consideration of the wider associated policy ramifications. Thus when they do become involved in the merits of an issue they will make assessments of policy matters about which they have not been sufficiently informed. Ultimately this will result in an undermining of the efficiency and integrity of the administrative process itself, as increased judicial scrutiny of the general policy considerations underlying particular decisions will engender uncertainty amongst administrators as the focus of concern shifts to avoiding specific challenges to an exercise of discretion.11  From this it is argued that the only logically sustainable position is one of restraint. 12 At the extreme Allan Hutchinson promotes not merely the restriction, but the abolition of judicial review.13 He does not perceive the courts as capable of simply fulfilling the  10  That is they have "many centres of stress and directions of force" all of which impact on each other. Only some of these are the focus of attention when the courts make a decision in a particular area. R. Baldwin & C. McCrudden, Regulation and Public Law (London: Weidenfeld & Nicholson, 1988) at 63. 11  Ibid, at 60.  12  G. D. S. Taylor in particular emphasises the point that discretionary decision making involves polycentric issues the enormity and complexity of which renders them unsuitable for judicial scrutiny. Courts are unable to deal with these considerations given their focus on the particular dispute before them rather than on the wider policy implications of their determination. Supra note 6 at 185. 13  Supra note 6.  15 policing function constitutionally assigned to them. 14 Nor does he view judicial review as a significant institution, either quantitatively, or in terms of the impact of judicial decisions on the administrative process.15 They are but a series of "isolated instances" that fail to provide any continuous or productive monitoring of discretionary decision making but rather hinder administrative efficiency by fostering delay and encouraging judicial interference in the administrative process.16 Constitutional doctrine, democratic legitimacy and administrative efficiency dictate the abolition of judicial review.  These arguments do have merit.  If regard is to be accorded to considerations of  democratic legitimacy and judicial expertise, the constitutional and practical limitations on judicial review do deserve respect. Yet if excess restraint is practised the danger is that the courts will be "pushed to the margin of public affairs and become ineffectual"17 and so maladministration and the abuse of discretionary powers would remain unchecked. While the limitations outlined above are accorded due respect by these writers the role of the courts in protecting the rights of the individual against the abuse of discretionary power is not. It is this weakness that is emphasised by those theorists advocating intervention.18 The containment of unlawful exercises of discretion is their 14  Ibid, at 320.  15  Ibid, at 293.  16  Ibid, at 317.  17  D. Galligan, "Judicial Review and the Textbook Writers" (1982) O.J.L.S. 257 at 257.  18  See for example K. C. Davis, "The Future of Judge Made Public Law in England: A Problem of Practical Jurisprudence" (1961) 61 Col.L.R. 201; J. A. G. Griffith, "Judicial Decision Making in Public Law" (1985) P.L. 564; H. W. R. Wade, Administrative Law 6th edn. (Oxford: Clarendon Press, 1988).  16 priority, and given the courts' constitutional mandate to curb excesses of power by the executive branch of government it is the courts that are the most appropriate forum for fulfilling this task. The party initiated and party controlled adversarial process further reinforces that it is the courts' responsibility to protect individual rights. They must be concerned exclusively with resolving the two party dispute over competing rights and interests immediately before them.  Legitimacy is accorded to this contention by the rule of law's stipulation that all power has legal limits within which it must be employed.19 And so, it has been expounded that if unlawful decision making is to be curtailed greater judicial scrutiny of governmental determinations is essential. Wade's argument is particularly illustrative of this traditional conception of review.20 Accepting that questions of policy constitute the merits of a decision and so are constitutionally inappropriate for judicial determination he acknowledges the doctrine that the courts must examine only the legality of a decision under review, and emphasises that they must continue to operate within this constitutional framework. Yet he nevertheless advocates an active judicial role, in the interests of protecting individual rights against the misuse of executive discretionary powers. This picture is not perceived, as it is by those urging restraint, as an illegitimate extension of judicial review, but rather as the courts fulfilling their constitutionally assigned role of ensuring that discretion is exercised in accordance with law. Davis and  The rule of law is discussed fully in chapter two below. Supra note 18.  17 Griffith are more open about what they seek to achieve through judicial review.21 Both favour a role in which the distinction between review and substitution is largely ignored. Both derive their views from an appreciation of the inextricable connection between discretionary decision making and considerations of policy, and the naivety of arguing that courts can review the legality of a decision without becoming embroiled in its merits. Although accepting that the courts should not substitute their judgement for that of the original decision maker, they nevertheless assert that if judges are to fulfil their role effectively they cannot simply apply precedent, but must look to the policy considerations of a particular case. The alternative is judicial determinations reached without regard to all the relevant information, so that their decisions "are inevitably less good than they could be."22 Judges must examine the "advantages and disadvantages of each possible solution" to the dispute before them and analyse the consequences of each alternative before arriving at their ultimate conclusion.23  The major strength of these arguments is that they do accord protection to the individual, a factor which is largely overlooked by the green light scholars.24 They are more realistic about what the courts are doing and so in accepting that they do make  21  Supra note 18.  22  Griffith, supra note 18 at 580.  23  Davis, supra note 18 at 211.  24  "Green light" is a term used by Harlow and Rawlings to refer to those scholars who, desiring to see the administration of government policy enhanced, argue that the courts must exercise considerable restraint in reviewing exercises of administrative discretion. C. Harlow & R. Rawlings, Law and Administration (London: Weidenfeld & Nicholson, 1984) chapter 1.  18 policy judgements seek to facilitate them in this task. Yet just as there are strengths to these red light arguments so there are substantial weaknesses.25 In particular, they overlook the limitations of the judiciary for dealing with these issues.  There are  significant limits to the courts' power. The question of expertise and the potential for substitution of judgement is largely ignored, or dismissed on the basis of the rule of law, implementing parliamentary will or that efficient administrative or judicial decision making renders such limitations inappropriate. Davis and Griffith in particular fail to address the potential that the sheer enormity of the task that they are proposing for the courts in becoming involved in policy, will in itself foster the delay and inefficiency that they are seeking to eliminate. They lose sight of the underlying principles which govern the judicial process. The limitations that require the courts to stay out of policy are in reality soundly based.  Pragmatic and institutional reasons both require that courts  interpret and declare law and not legislate or become involved in policy.26  Clearly there is a dilemma. Just as constitutional propriety dictates that the courts stay out of policy so it also demands that they protect the individual. Both propositions possess strengths and weaknesses and it is not possible to discern conclusively which is to be preferred.  All that can be determined is that this preoccupation with judicial  review is futile.  Judicial pronouncements and academic writings simply vacillate  " "Red light" is a term adopted by Harlow and Rawlings, ibid, chapter 1. to refer to those theorists who, suspicious of the growing power of the state, wish to see the courts exert the maximum degree of control possible over the exercise of governmental discretionary powers. Ibid, at 313.  19 backwards and forwards. Contentions that individuals deserve protection against the misuse of administrative powers can be countered with assertions that the interests of the community at large in the efficient operation of the administrative process are of equal importance. Similarly arguments emphasising the importance of the constitutional or practical limitations on judicial review are easily struck down by instances of the misuse of power. For this reason it is not feasible to dismiss entirely any one of the alternative arguments. Yet none of them satisfactorily accommodate the competing considerations underlying the difficulties of defining the appropriate ambit of review. Open intervention ignores the basis and legitimacy of the limitations of judicial review. Excessive restraint fails to accord sufficient respect to the courts' role of upholding individual justice and defining the limits of governmental power. Ultimately it must be concluded that the argument posited masks the inherently and unavoidably subjective political and social viewpoint of the commentator. How one views the role of the state can often be seen as shaping ones' preferred ambit of judicial power. Hutchinson and Taylor, for example, hail the state as beneficial to the community at large, and so baulk at judicial interference in the administrative process. Wade on the other hand is guided by an ideal of the rule of law and vision of a minimalist state that prescribes for the courts a substantial role in monitoring the administrative decision making process. And so there is perpetuated a circular debate. Judicial review is good because it ensures that a decision maker exercises his or her power lawfully. Judicial review is bad because judges substitute their decisions about policy for those of the original decision maker. The point of the above discussion is to illustrate that there is no answer, or at least no determinate  20 answer, that will satisfactorily accommodate the array of competing considerations.  One suggested 'solution' is that it is for the courts to strive to achieve an appropriate balance between excessive restraint and activism. There must be judicial review but with limits.27 The courts must be accorded sufficient scope to intervene to protect the rights and interests of the individual, but with the proviso that they must not substitute their own decisions for those under review. It is the legality - merits dichotomy and the constitutional and other limitations outlined above that will ensure that this qualification is not overlooked. As a solution to the above dilemma this is not satisfactory. The distinction between legality and merits especially "is always difficult to draw, and ... recent judicial practice has treated [it] with scant respect."28 This is because any ground of review involves the courts in an evaluative process which unavoidably brings them close to an examination of the merits of a decision. Given that discretionary powers are often conferred in language that is "elliptical, ambiguous and inherently opentextured"29 a determination as to relevancy, propriety of purpose or reasonableness will inevitably entail a value judgement as to the limits of discretion and the purposes for which it should be employed. It is difficult to see how a distinction that is incapable of being sustained absolutely is likely to be able to provide any meaningful restriction on judicial review. Relying on judicial self restraint will not prove sufficient.  See Brennan, supra note 1. Galligan, supra note 17 at 266. P. Craig, Administrative Law 2nd edn. (London: Sweet & Maxwell, 1989) 292.  21 To advocate compromise is simply to recognise that extreme restraint would render judicial review somewhat pointless, and leave the individual exposed to the potential misuse of power, yet that increased intervention is equally as unsatisfactory, for just as an administrator must not be given carte blanche over an individual the judiciary must not be permitted to impose its own views whenever in its opinion the preferable decision has not been reached. In short it is a acknowledgement of the futility of the debate, that it is not possible to determine conclusively, within the perceived framework outlined above, the appropriate role of the courts in modern government.  B. Jurisdiction as the Basis of Judicial Review. ... leaving aside for now the debate about defining the subject matter of administrative law, it cannot be denied that the notion of ultra vires or jurisdictional review constitutes the essential underpinning for judicial review of administrative action.30 The circularity and consequent futility of the above debate is engendered by the adherence to jurisdictional review as the core doctrine of judicial review. As evidenced by its pre-eminence in academic writings and curial pronouncements, jurisdictional review undoubtedly occupies a pivotal position within the jurisprudence of administrative law, justifying judicial review of administrative decision making in the following way.  A  decision maker is empowered to do X if Y exists. The implication is that he or she can only do X and only if the requisite conditions are present. It is for the courts to interpret and enforce compliance with these statutorily prescribed criteria that define the  30  H. W. MacLauchlan, "Judicial Review of Administrative Interpretations of Law: How Much Formalism Can We Reasonably Bear?" (1986) 36 U. T. L. J. 343 at 366.  22 jurisdictional limits of any decision maker's power. The courts must ensure that the decision making authority is properly constituted, that it embarks on the right tasks, satisfies stipulated conditions and, ultimately arrives at determinations that fall within the scope of the prescribed authority.31  Jurisdictional review thereby provides the  conceptual basis of ultra vires, the underlying premise of which, that the courts are limiting the administrative agency to its legislative mandate, accords legitimacy to judicial intervention in the administrative process.  1. Dicey's Theory of the Rule of Law and the Origins of Jurisdictional Review. Undoubtedly the dominance enjoyed by the jurisdictional question doctrine is reflective of the pervasiveness in administrative law jurisprudence of the Diceyan conception of the rule of law and vision of the minimalist state. It is unquestionably because of Dicey's influence that the apparently unshakable obsession with jurisdictional review prevails, for it was Dicey that elevated the rule of law to the central position that it now occupies within administrative law jurisprudence, as affording legitimacy to both the courts' power of review and the use of jurisdiction as the predominant means of reviewing the exercise of administrative discretionary powers. The perception, also attributable to Dicey, that the state is bad and administration the antithesis of law, for which the rule of law is a necessary "bridle for Leviathan"32 serves to reinforce the appeal of this doctrine. As observed by Bryden:  31 32  Galligan, supra note 17 at 261.  Quoted in H. W. Arthurs, "Rethinking Administrative Law: A Slightly Dicey Business" (1979) 17 Osgoode Hall L.J. 1 at 3.  23  Dicey's conception of the rule of law ... contained enough of a germ of truth to sustain its powerful popular appeal. There is, after all, something rather stirring about the idea that even Prime Minister Mulroney stands on no higher legal footing than any of the rest of us ... We didn't go so far as to put Dicey's name into our Constitution in 1982, but we did state in the preamble to the Charter that Canada was founded upon principles that recognise the rule of law, right after the part where we recognised the supremacy of God."33 Doubtless Dicey's vision has shaped administrative law. But the vision is no longer sustainable.34 This does not mean that Dicey or the rule of law should be dismissed completely. As an ideal guiding the development of our legal system it arguably is an "unqualified human good."35  Demanding governmental compliance with general,  objective rules designed to limit the scope for discrimination and to safeguard an individual's rights against the arbitrariness of those who govern, it furnishes a reference point or standard against which to assess and measure the underlying morality and legitimacy of rule making.36 Stipulating that all power has legal limits within which it must be exercised it further provides the basis for reviewing discretionary decision making and containing its misuse, by mandating the courts to ensure that all decisions comply with these limits. As such, the rule of law is an expression of the need to protect individuals from bureaucratic injustice, and to uphold democratic legitimacy by ensuring administrative compliance with the will of the democratically elected and representative 33  P. Bryden, "Canadian Administrative Law in Transition: 1963 - 1988" (1988) U.B.C.L.R. 147 at 159.  34  P. Craig, "Dicey: Unitary, Self - Correcting Democracy and Public Law" (1990) 106 L.Q.R. 105 at  105. 35  E. P. Thompson, Whigs and Hunters - The Origins of the Black Act (New York: Pantheon, 1975) at  266. 36  J.M. Blum, "C. L. S. and the Rule of Law" (1990) 38 Buff. L.R. 59 at 112; T. R. S. Allan, "Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism" (1985) 44 C.L.J. 111 at 113 - 114.  24 parliament.  The principles of Dicey's rule of law are simple, straightforward and well known. Its essence is that 'regular law' as administered by the 'regular courts' is supreme and that no individual can be subject to the arbitrary exercise of power.  In particular, he  stipulated three discrete propositions. First, that "no one can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land."38 Second, that every person "whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals."39 That is, administrative officials are equally as amenable to this regular law as are private individuals. They cannot be exempt from the supervision of the ordinary law. Finally, the principles protecting individual rights are "the result of judicial decisions determining the rights of private persons in particular cases before the courts."40  They emanate from common law decisions, not  constitutional entrenchment. Thus courts can determine the legality of executive decision making in accordance with the principles of the ordinary, private law. The obvious emphasis here is on the supremacy of the ordinary law and the ordinary courts, as opposed to specialist administrative or constitutional law courts. Its superiority was  37  See 26 - 27 below for a discussion of Dicey's conception of a self correcting majoritarian democracy.  38  A. V. Dicey, The Law of the Constitution (London: Macmillan, 1885) quoted in Arthurs, supra note 32 at 6. 39  Ibid.  40  Ibid.  25 unequalled.  Understandably arbitrary powers, which by definition deny the existence of legal or other limitations on their exercise, were declared by Dicey to be repugnant to this conception of the rule of law. However, equating arbitrary powers with wide discretionary authority by virtue of the latter's apparent unlimitedness, he argued further that the existence of discretionary powers was equally incompatible with the rule of law. Thus he condemned the French system of separate administrative law courts which governed administrative bodies distinctly from private individuals, contending that there is nothing in England that can compare. This all of course spelt virtual death for administrative law in England where the rule of law reigned in opposition to administration. Indeed, Dicey denied expressly the existence of administration as "utterly unknown to the law of England." and "fundamentally inconsistent with our traditions and customs."41 The administrative state simply did not exist. What Davis has termed this "extravagant version" of the rule of law is clearly inaccurate. 42 Discretionary powers were then and are now an integral part of the modern state. Nevertheless, "[t]he intensity of the belief that the ordinary courts are supreme and the ordinary law all-pervasive ... has become embedded in the very vocabulary of administrative law, and is a central feature of the traditional and conceptual basis of judicial review."43  41  Ibid, at 26.  42  K. C. Davis, Discretionary Justice: A Preliminary Inquiry (Baton Rouge: Louisiana State University Press, 1969) at 28. 43  Arthurs, supra note 32 at 7.  26 This justification for judicial review was reinforced by the twin principles of parliamentary sovereignty and legislative intent. According to the former "Parliament has under the English constitution, the right to make or unmake any law whatsoever; and further ... no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament."44 Parliament was omnicompetent, subject only to the limitations imposed by representative democracy. That is, given the power of the electors to enforce their will, representative government ensured that the will of parliament, the legal sovereign, correlated at all times with the wishes of the politically sovereign electorate. If at any time the will of parliament digressed from that of the electorate the latter could simply effect the removal of the former from power.45 It is inherent in this principle of sovereignty that no grant of power can be exercised otherwise than in accordance with the will of the sovereign parliament as expressed in the enabling legislation. Parliament made the laws. The executive simply implemented them. It was the task of the judicial branch of government to ensure that the executive complied with the limits laid out in the statute so that the implied legislative intent was not transgressed. Concomitant with these theories was that of parliamentary monopoly which, requiring executive compliance with the wishes of parliament and stipulating that the latter controlled the former, demanded a body to monitor the boundaries imposed on the executive by parliament. Again, it was the courts that were nominated as best suited to fulfilling this objective. And so, the modern conceptual justification for judicial  Dicey, supra note 38 quoted in Craig, supra note 34 at 106. Ibid, at 107-108. This is a system of self correcting majoritarian democracy.  27 review was conceived. The rule of law legitimated the exercise of judicial review by mandating the courts to ensure that, in the interests of preserving democratic legitimacy and upholding the legislative intent, any person or body relying on power delegated by the legislature complied with the conditions stipulated in the empowering legislation. This included ministers, agencies and administrative tribunals, all of whom required legislative authority for their actions.46  More important for present purposes than the support and legitimacy that the rule of law affords judicial review per se is the influence that it exerted in shaping the courts' perception of how they should fulfil this role, for the emergence of jurisdictional review owes much to Dicey's formulation of this rule. Indeed in the Public Service Alliance case, for example, Sopinka J. openly stated that it is the courts' function, as the guardians of the rule of law, to interpret jurisdiction conferring provisions and substitute their interpretation of them for that of the body under review.47  This pull towards  jurisdictional control results from the first two elements of Dicey's rule of law, that is, that regular law is supreme and that officials are equally as subject to this ordinary law as are private individuals.48 The former provides "the intellectual foundation of the  46  Wilson J. in National Corn Growers Association v. Canada (Import Tribunal) [1990] 2 S.C.R. 1324 at 1332 - 1335 (hereinafter Corngrowers). 47  Canada (Attorney General) v. P. S. A. C. (1991) 48 Admin. L. R. 161 (S. C. C.) discussed in J. M. Evans, "Jurisdictional Review in the Supreme Court: Realism, Romance and Recidivism" (1991) 48 Admin. L.R. 255 at 257. D. Dyzenhaus, "Dicey's Shadow" (1993) 43 U.T.L.J. 127 at 130.  28 concept of jurisdiction."49 jurisdiction.  It stipulates that tribunals must act intra vires, or within  The jurisdiction within which they must operate is that defined by the  ordinary courts, for, as prescribed in this principle of the rule, it is the regular law as explicated by the regular courts that is supreme. 50 The second element of the rule of law leads to the perception that "the common law knows no droit administratif (or separate rules of government liability developed and applied by separate tribunals)."51 Again, this translates into the prevalence of the ordinary law and ordinary courts over inferior administrative tribunals.  It is for the ordinary courts to ensure that  administrative agencies act within the confines of their jurisdiction. In other words, the legislature grants a power to a decision maker which must be exercised in accordance with the legislatively prescribed limits. It is for the courts, in compliance with the rule of law and the basic principles of parliamentary sovereignty and implied legislative intent, to police the boundaries of a decision maker's power and secure compliance with them, for it is implicit in the intent of the legislature that parliament does not want the decision maker to act beyond its jurisdictional limits. All the courts are doing is guarding against the extension, by the decision maker, of the area over which he or she has jurisdiction.  This cycle of jurisdictional control must be broken, for as long as jurisdictional review is adhered to as the central doctrine of judicial review the debate over the appropriate  49  A. H. Young, & R. A. Macdonald, "Canadian Administrative Law on the Threshold of the 1990's" (1991) 16 Queen's LJ. 31 at 32. 50  Ibid. Arthurs, supra note 32 at 7.  51  Young and Macdonald, supra note 49 at 32.  29 ambit of judicial review will continue unresolved. Jurisdictional review does not allow the courts to focus on the underlying objectives of judicial review. Rather it results in them shifting their attention away from these objectives to the formalistic question of whether the decision maker really had the authority under the act to arrive at such a determination. The ambiguity inherent herein in turn engenders either under or over intervention, and hence the debate over the scope of judicial review. If progress in the area of administrative law is to be achieved academic writers and judges must re-assert their independence and extricate themselves from the stranglehold that Dicey and his formulation of the rule of law exert over administrative law scholarship and address directly the objectives sought to be achieved through judicial review.  2. Academic Adherence to Jurisdiction as the Basis of Judicial Review. Despite this need to move away from the doctrine of jurisdictional review, academic writers continue to evince an apparent contentment with this jurisdictional framework. The scholars discussed earlier fail completely to perceive of the possibility of devising an alternative framework of analysis. Rather, far from questioning these fundamental tenets upon which administrative law is developed, they strive endlessly to discern the optimum manner in which a court can define an administrative agency's jurisdiction and whether a decision that exceeds this boundary has been effected. Wade in particular emulates a typical perception of jurisdictional review: At a time when the courts are mobilising all their resources for controlling government power, it is unlikely that they will abandon rules that have served them well for centuries. Their addiction to the technicalities of jurisdictional control is not  30  a mere aberration. It is the consequence of their constitutional position vis-a-vis a sovereign legislature: only by showing that they are obeying its commands can they justify their intervention. By one means or another [jurisdiction] has to be stretched over the case. While Wade desires to assure that the courts will prevent administrative bodies from exceeding their jurisdictional limits, Hutchinson and Taylor both wish to ensure that the courts, in monitoring the legality of agency decision making, do not unduly restrict the jurisdiction of the agency to exercise the power remitted to it.53 Davis and Griffith evince less clarity.54 Both are aware of the disadvantages of judicial review yet both wish to see decision makers reaching only those decisions that they have the jurisdiction to make. Bryden goes so far as to suggest that "nobody seems to care a great deal ... about the creation of a clear and logically consistent theoretical framework to jurisdictional review [because] we have ... a system that, by and large, really works."55  Even those who admit that jurisdictional control is not a satisfactory approach continue to work within this framework. MacLauchlan although presenting a compelling and persuasive argument that jurisdiction is circular, "unduly formalistic" and "engenders a form of discourse which has little relevance to what is happening in contemporary  Quoted in H. Janisch, "Towards a More General Theory of Judicial Review in Administrative Law" (1989) 53 Sask. L.R. 327 at 333. Emphasis added. 53  Supra note 6.  54  Supra note 18. Bryden, supra note 33 at 163.  31 administration,"56 continues his discussion within the very framework that he seeks to criticise. It is apparently Janisch alone who expresses an awareness of the necessity to shed the inhibiting concept.57 He has stated in reference to decisions of the Supreme Court of Canada, for example, that [m]y view is that the whole notion of jurisdiction is inherently flawed and that it leads inevitably to under or over intervention. Rather than complain about the quality of decisions made by the courts, I believe that we should explore the possibility of constructing an alternative basis for judicial review which is not dependent on jurisdiction.58 Arguing that "we need to develop an open, functional approach to judicial review,"59 he openly denies the capacity of jurisdictional review to satisfy the objectives sought to be achieved through judicial review. Only Janisch recognises that jurisdiction is an elastic and ambiguous concept, a "deceptive ... legal pitfall,"60 that is devoid of objectivity,61 a ""comforting conceptualism" and "semantic device" used to justify judicial intervention ... [a] convenient umbrella under which the courts have chosen to justify their continual assertions of a reviewing power."62 It is merely a veneer that, regardless of judicial motives or consciousness, masks value choices and so obscures the real issues in a  56  Supra note 30 at 344.  57  See particularly Janisch, supra note 52 at 333.  5S  Ibid. at 331.  59  Ibid, at 332.  60  Frankfurter J. quoted in ibid, at 334.  61  MacLauchlan, supra note 30 at 371.  62  Laskin quoted in Janisch, supra note 52 at 334.  32  dispute.63 Progress in the area of administrative law is consequently "persistently being undermined by a 'two steps forward - one back' routine resulting from an unwillingness to make a clean break from doctrinal antecedents."64 As the guiding norm of judicial review, jurisdiction has outlived its utility, yet there are no easy answers as to what should be built in its place. However, if progress is to be achieved and the circularity broken so must the stranglehold exerted by this misguided loyalty to jurisdictional review. For too long in the jurisprudence and scholarship of Canadian administrative law we have debated how to draw the 'jurisdictional' circle. This debate has been marked by a sense of unreality or futility, yet we have largely failed to escape its formalistic underpinnings. The alternative is neither obscure nor complex: there must be a turn towards a more functional analysis.65  3. Judicial Adherence to Jurisdiction as the Basis of Judicial Review. The Supreme Court of Canada has likewise ardently reasserted in the recent Mossop66 decision that judicial review is concerned centrally with discerning the ambit of a decision maker's power, that is, jurisdiction. In this case the court was charged with determining whether the Canadian Human Rights Tribunal had misinterpreted the term "family status" in section 3(1) of the Canadian Human Rights Act so as to include homosexual partners.67 The case was originally brought before the Tribunal by Mr. Brian Mossop  63  These two themes are explored more fully in chapter 3 below.  64  MacLauchlan, supra note 30 at 345.  65  Ibid, at 344.  66  Canada (Attorney General) v. Mossop, (1993) 1 S.C.R. 554 (hereinafter Mossop).  67  Canadian Human Rights Act, R.S.C. 1985, c. H-6, s. 3(1).  33 who, on June 3, 1985, took a day's leave of absence from work to attend the funeral of his lover's father. He did not foresee any difficulty herein, for pursuant to Article 19.02 of the collective agreement governing his terms of employment all employees were entitled to four days bereavement leave upon the death of a member of his or her "immediate family." Mr. Mossop's application for one days such leave was however denied, for the collective agreement went on to define "immediate family" as including a "common law spouse," however restricted the latter, under Article 2.01(s), to a person of the opposite sex. Mr. Mossop's relationship with Mr. Popert categorically fell foul of the terms of the agreement.  Dissatisfied with such treatment Mr. Mossop complained to the Canadian Human Rights Tribunal that section 10(b) of the Canadian Human Rights Act, which proclaims that it is a discriminatory practice for an employer to enter into an agreement relating to employment "that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination", had been contravened. The prohibited ground of discrimination claimed was "family status." The Canadian Human Rights Tribunal was thereby confronted with determining first whether the two men could be considered a family within the meaning of "family status", and second whether there had occurred any discrimination on the basis of their familial situation. Asserting that a purposive approach to statutory interpretation, which confers "a reasonable meaning which best accords with the Act," is demanded by human rights codes, the Tribunal held that "family status" did include homosexual partners and that  34 section 10(b) of the Act had been violated.  The Supreme Court of Canada was unanimous in identifying the issue before it as one of discerning which body had the ultimate power to interpret "family status" conclusively within the Canadian Human Rights Act. The majority determined that this was purely a question of statutory interpretation and, as such, was not a question that fell within the Tribunal's competence to determine conclusively. This is because all issues of statutory interpretation are deemed to be questions of law that require specialised judicial knowledge to resolve. Thus it was the court and not the Tribunal that was empowered to reach the final determination as to the meaning of "family status". It was for the court to determine if the Tribunal had misinterpreted "family status" and so committed an error of law.  Judicial review for error of law is dealt with in section 28 (l)(b) of the Federal Court Act.68  It was this provision that was determinative in this case. That is, it is an error  of law case, not one of jurisdictional error. 69 Nevertheless it is clearly arguable that the debate surrounding the scope of review for error of law simply replicates that concerning  Pursuant to the Federal Court Act, R.S.C. 1985, c. F-7, s. 28 (1) ... the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision ... made by or in the course of proceedings before a federal board, commission or other tribunal, on the ground that the board, commission or tribunal (b) erred in law in making its decision or order, whether or not the error appears on the face of the record. It is the Federal Court Act, ibid. s. 28 (l)(a) that provides for jurisdictional review.  35 jurisdictional review.70 In both the focus of concern is not on the quality of decision making per se, but rather on breaking down the decision into component parts that are the responsibility of either the tribunal or the courts respectively. Whether jurisdictional review or error of law the concern is the same, namely what is the scope of the tribunal's power as conferred in the enabling statute. That is, both approaches are concerned with defining the ambit of a decision maker's unreviewable power, or jurisdiction. It is in this sense that the term 'jurisdiction' is adopted throughout the subsequent analysis. It is not intended to refer to jurisdictional review in the strict sense employed in section 28 (l)(a) of the Federal Court Act, but simply to the ambit of a particular decision maker's powers as defined by the empowering statute and defined by the courts.  The majority held that the Tribunal had misinterpreted "family status." As a question of law it was undoubtedly a question which fell within the jurisdiction of the court not the Tribunal, to make the final and conclusive determination. The court had to ensure that it had not been interpreted so as to confer on the Tribunal a power not intended by the legislature. It was determined by Lamer C.J. that it was not the intention of the legislature to allow for same sex couples to be incorporated within the term "family status." By concluding otherwise the Tribunal interpreted the Act so as to confer on itself sufficient scope to embark on an inquiry not intended by the legislature, namely whether Mr. Mossop had suffered discrimination because of sexual orientation. Sexual  Indeed it could perhaps be argued that even had the Mossop case been decided under s. 28 (l)(a) the result would not have been any different. Ultimately the same issue, namely whether the power to interpret "family status" lay within the jurisdiction of the tribunal or the court, would have arisen.  36 orientation was not an enumerated ground of prohibited discrimination, and so it was not within the Tribunal's jurisdiction to make a determination on this basis.71  L'Heureux - Dube J. in dissent, although determining this case under section 28 (l)(b) of the Federal Court Act, nevertheless argues that this does not necessarily compel the court to correct all errors of law, and that the court can use its discretion to correct only jurisdictional errors. That is she appears to be seeking to confine the scope of this provision of the act. Consequently, she sees the task before the court as one of inquiring simply "[d]id the legislator intend the question to be within the jurisdiction conferred on the tribunal?"72 If ... one concludes that courts should answer the question, then the question is one which does not lie within the jurisdiction of the board ... If one concludes that the question should be answered by the board, then the question is one within the board's jurisdiction...73 In contrast to the majority's insistence that questions of statutory interpretation, as questions of law, are not intended to lie within the exclusive jurisdiction of the Tribunal, she held that interpreting the act was within the competence of the tribunal. The point of importance for present purposes is that both the majority and the dissent in this case were concerned to ascertain the Tribunal's jurisdictional limits, that is the limits of the Tribunal's power as conferred in the enabling statute.  And so as recognised by  L'Heureux - Dube J. whether the case is one of error of law or jurisdictional error, "the  71  Supra note 66 at 580.  72  Ibid, at 601.  73  Ibid, at 605.  37 approach articulated by this court requires a focus on jurisdiction."74 Jurisdiction, in the sense of the ambit of power within which the tribunal is competent to determine, is firmly and undeniably entrenched as the guiding norm of judicial review.  C. Correctness as the Basis of Jurisdiction. At the core of this doctrine of jurisdictional review is a conception ascribed to by Dicey that language is determinate. From this it follows that the legislative will, as expressed in a statutory text, is definite and clearly ascertainable, for if language is determinate, so too must be the law as expressed in the statutory framework. Apparent ambiguities over the interpretation of a statutory mandate must therefore be capable of only one correct explication, that which is embodied in the determinate statutory language. All that is required of the judiciary therefore is the articulation of the 'correct' meaning of an unambiguous statutory text and so the pre-ordained will of the sovereign parliament as embodied therein.75 By definition there must be a uniquely correct and uncontroversial answer to all questions of statutory interpretation. Denying the vagaries of language, these theories of correctness and determinacy amalgamate to afford the foundational premise for the doctrine of jurisdictional review in the following way: Since the mandate of the administrator is defined by the statute and there is only one correct interpretation of the statutory mandate, and since such matters are to be finally pronounced upon by the superior courts, then any action of an administrative decision-maker premised upon an erroneous interpretation of law will be unconstitutional or, put another way, without  Ibid, at 603. MacLauchlan, supra note 30 at 351.  38 jurisdiction.76 Demanding the objective application of the clear, pre-existing and determinate law, easily discernible to anyone with reasonable legal skill, to the dispute before the court, the determination of where the jurisdictional boundaries of a grant of discretion lie is perceived as a straightforward process of statutory interpretation.  It is a purely  mechanical exercise guaranteed to produce the 'correct' reading of the statute.  1. Judicial Adherence to the Standard of Correctness. It may be that these assumptions of correctness and determinacy now enjoy only limited support. This does not, however, detract from the reality that they played a considerable role in the development of the doctrine of jurisdictional control and as such have contributed significantly to the doctrine as it exists today. Certainly it is apparent in the judgements of the Supreme Court of Canada that ensuring the correct interpretation of a statute's jurisdiction conferring provisions is the courts' essential task. It is accepted that once an administrative agency is acting within its jurisdiction it has the right to be wrong, for it is the body appointed by parliament that alone is empowered to conclude on the merits of a particular case. No agency however has the right to incorrectly determine questions going to its jurisdiction. It cannot vest itself with jurisdiction to which it is not entitled by erroneously concluding that the act remits such authority to it. Jurisdiction conferring provisions must be interpreted correctly, and, as with all questions of law, there is only one correct interpretation possible. It is for the courts alone, as the  Ibid, at 367.  39 guardians of this law, to ensure that it is this interpretation that is arrived at.  It had appeared that with Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation?1 the court was moving towards a weakening of the rigidity of this standard. It was there held that the Public Service Labour Relations Board did have jurisdiction to interpret s.102 (3) of the Public Service Labour Relations Act.  The particular facts are irrelevant.  The significance of the decision is that in  determining the extent of the board's jurisdiction the court appeared to hold that questions relating to the jurisdiction of an agency do not have to be answered correctly. In the course of his judgement Dickson J, writing for the court, expressed concern and dissatisfaction with the stringency of the jurisdictional question doctrine. In his opinion "[t]he question of what is and is not jurisdictional is often very difficult to determine. The courts in my view should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so."78 Taking this one step further the court acknowledged that "[t]here is no one interpretation that can be said to be right,"79 and so recognised the impossibility of resolving questions of statutory interpretation correctly.80 To insist otherwise is to overlook the undeniable ambiguities and vagaries of language. This, as Dickson J. points out, is more than adequately  [1979] 2 S. C. R. 227 (hereinafter C.U.P.E.). Ibid, at 233. Ibid, at 237. Dyzenhaus, supra note 48 at 127.  40 demonstrated by the fact that the judgements of the New Brunswick Court of Appeal in this case "are in irreconcilable conflict." None of the judges were there agreed over the 'correct' interpretation of the disputed provision. The Supreme Court rather appreciated that where a legislative provision was not capable of unambiguous interpretation it should be left to the expertise of the decision making body to reach an informed decision as to its meaning. The question to be addressed by the court when exercising review is thus not has the body correctly determined the scope of its authority, but [d]id the Board ... so misinterpret the provisions of the Act as to embark on an inquiry or answer a question not remitted to it? Put another way, was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review.81 The decision is certainly not a rejection of jurisdiction as the guiding norm of judicial review and it left open the possibility that a body could be held to have exceeded its powers by arriving at an incorrect interpretation of the statutory mandate. The case does however weaken the rigidity of the standard hitherto applied. It marked the beginning of a challenge to the idea of jurisdictional control on the basis of correctness.  It could well be contended that this decision is irrelevant, for whether a standard of 'correctness' or 'reasonableness' is employed the court persists in its quest to identify the exact limits of an administrative agency's jurisdiction, and therefore assumes these exist. Reasonableness is certainly not as openly focused on defining jurisdictional limits as is correctness, its apparent concern focusing on the seriousness, not merely the existence,  C. U.P.E. supra note 77 at 237. Emphasis added.  41 of an error. However, in castigating an error as so serious as to be unreasonable the courts are deeming that the administrative body has made a decision it had no jurisdiction to make. This is because parliament cannot be assumed to have intended to confer on an agency the jurisdiction to make a decision that is so absurd or manifestly unreasonable that it amounts to a determination that does not fall within the decision maker's mandate. In Wheeler v. Leicester City Council,9,2 for example, although the council did have jurisdiction to reach decisions concerning the management of its recreation ground, it could not use this power to compel others to exercise their rights of free choice in a manner which correlated with the council's wishes. In so doing the council had acted unreasonably and thereby employed its discretion to decide an issue not incorporated within its empowering statute.  That is, it had acted beyond its  jurisdiction. Likewise, in U.E.S. v. Bibeault Beetz J. spoke in the language of an agency losing jurisdiction if it acted in a patently unreasonable manner.83 Both standards of review are concerned to identify the jurisdictional limits of a grant of discretion. As such, the "dilemma of supervising limited mandates of administrative decision makers within a restricted model of judicial review has not been fundamentally altered. The problem of drawing the circle, albeit in a more fluid fashion, remains."84 This is a factor which those who analyse the case fail entirely to appreciate. Dyzenhaus, for example, appears to misunderstand completely the nature of jurisdiction asserting that C. U.P.E. "was  [1985] 2 All E.R. 1106. [1988] 2 S.C.R. 1048 (hereinafter Bibeault). MacLauchlan, supra note 30 at 372.  42 thought ... to have got rid of the idea that the courts had any large role to play, via an idea of jurisdictional control"85 and later "it seems to me that one of the central questions for Canadian administrative law over the next few years will be whether the focus on reasonableness required by C. U.P.E. will be restored or whether the idea of jurisdictional control will continue to surface."86 He misses the point, as do Young and Macdonald who likewise perceive of a dichotomy between jurisdictional review and reasonableness. 87 Both standards of review are embroiled within the intractabilities of jurisdictional control. Reasonableness may indeed give scope for the consideration of factors that would be largely ignored under the correctness standard, such as the degree of deference that should be accorded to an administrative tribunal, and reduce the rigour with which the courts may scrutinise a decision, but it is nevertheless simply another way of ensuring that administrative decision makers act within their jurisdiction.  The  difference between the two approaches lies not in a shift away from jurisdiction per se, but in the rigour with which it is pursued, and in the shift of the focus of review from error oriented to issue oriented review.88 Some scope now existed for the courts to defer to the expertise of the administration.  85  Supra note 48 at 127.  86  Ibid, at 129.  87  Supra note 49 at 36.  88  See P. Bryden, "Administrative Law - Review for Jurisdictional Error - Labour Board Decision Held to be Patently Unreasonable: United Association of Journeymen and Apprentices ofthe Pipefitting Industry v.W.W. Lester (1978) Ltd." (1992) 71 Can. Bar Rev. 580 for a discussion of issue oriented and error oriented review.  43 Ultimately however this was not a consideration of sufficient strength to hold sway. The only point of clarity that can be discerned from the jumble of subsequent decisions is that the Supreme Court of Canada had absolutely no idea what it was doing. It appeared to both support and dismiss C. U.P.E. yet never examined fully its implications. In a series of cases Beetz J. initiated a definite swing back to the broader pre - C. U.P.E. view of jurisdiction that calls for review on correctness grounds. In Syndicat des employes de production du Quebec et de I'Acadie v. Canada Labour Relations Board*9 writing the unanimous judgment of the court, which included Dickson J, he held "that courts are entitled to apply a standard of correctness in respect of certain fundamental jurisdictional issues."90 That is, those that describe, list or limit the tribunal's powers or are "intended to circumscribe the authority" of the tribunal. He sought to limit the impact of C. U.P.E. by 'explaining' that the patently unreasonable test stipulated by Dickson J was to apply only to the interpretation of provisions that were clearly within the board's jurisdiction. If the disputed provision is one which goes to jurisdiction the unreasonableness standard is inapplicable. Once it is so classified the reviewing court must rule on the correctness of that decision.91 If the agency does not "have the power to make such a decision ... it must be set aside however reasonable or desirable it may be or appear to be."92  [1984] 2 S.C.R. 412 (hereinafter L'Acadie.) Dyzenhaus, supra note 48 at 128. L'Acadie, supra note 89 at 441 - 442. Ibid, at 440.  44 Again in Bibeault,93 another unanimous decision, he held that a tribunal would normally only lose jurisdiction if it acts in a patently unreasonable manner, but that, if the question at issue concerns a legislative provision limiting the tribunal's powers, a mere error will cause it to lose jurisdiction and subject the tribunal to judicial review on a correctness basis.94 Avowedly, he acknowledged the difficulty of ascertaining an agency's jurisdiction, asserting that "I doubt whether it is possible to state a simple and precise rule for identifying a question of jurisdiction, given the fluidity of the concept of jurisdiction and the many ways in which jurisdiction is conferred on administrative tribunals,"95 and so apparently rejects as arbitrary the jurisdictional question doctrine. This does not mean however that he disagreed entirely with the jurisdictional approach. He adhered to the perception that questions which go to jurisdiction must be answered correctly, promulgating a two tiered approach, aimed at eliminating the arbitrariness of the jurisdictional question doctrine, for determining the applicability of the correctness standard. First, the court must inquire if the agency was acting within its jurisdiction, and second, if so, "whether the legislation intended the provision in dispute to be within the tribunal's unreviewable power to decide, as long as the tribunal did not attribute to it a patently unreasonable meaning."96  If the provision in question is one going to  jurisdiction it must be answered correctly. If it is a question within jurisdiction it must  93  Supra note 83.  94  Quoted in Janisch, supra note 52 at 331.  95  Bibeault, supra note 83 at 1087.  96  Young and Macdonald, supra note 49 at 37. This approach was supported in C^AJ.M.W. v. Paccar of Canada Ltd. [1989] 2 S.C.R. 983. See in particular the judgement of La Forest J.  45 not be answered unreasonably.  This all seemed to cause quite some confusion in National Corn Growers Association v. Canada (Import Tribunal)91 in which both the majority and the dissent purported to apply the reasonableness test of C. U.P.E. but did so in quite divergently. The majority concluded that the Tribunal was acting within jurisdiction, and thus that the first of the two step approach articulated by Beetz J. was satisfied, so that the only question of relevance was whether it was acting unreasonably.98 Thus they appeared to accept LAcadie and Bibeault, yet argued that they were applying C.U.P.E. In actuality they simply avoided the issue by failing to examine either these cases or whether the Tribunal was in fact acting within jurisdiction.  Gonthier J. rather undertook an in depth  examination of all stages of the decision under review to determine whether the Board had acted reasonably at every level. Wilson J on the other hand appeared to reject both LAcadie and Bibeault and, reasserting the importance of judicial deference upheld the C.U.P.E. decision." She applied the same standard of reasonableness employed by Gonthier J, but did not engage in the in depth analysis of all levels of the decision undertaken by the majority. She focused solely on the Board's interpretation of the statute, concluding not only that deference was due, but that in no case should the court conduct an in depth analysis of the entire decision making process. It must never look  Supra note 46. 98  Young and Macdonald, supra note 49 at 41.  "Ibid.  46 any further than the Board's interpretation of the empowering statute.  D. Conclusion. It has been shown in this chapter that the current debate over the appropriate ambit of judicial review is circular and so insoluble, for rather than focusing on the objectives underlying judicial review, courts and academic writers alike have become obsessed with identifying the jurisdictional boundaries of a decision maker's discretion. It has been illustrated, through an analysis of the relevant scholarship and case law, that jurisdiction is firmly entrenched as the underlying basis of judicial review, and that at the centre of current understandings of jurisdictional review is the assumption that language is determinate and so the jurisdictional boundaries, as expressed in a statute, capable of only one correct determination.  In the next chapter these assumptions of determinacy and correctness and the Diceyan conception of the rule of law, as affording the foundation upon which to construct the doctrine of jurisdictional review, are critically examined and relegated to their proper place in the history of administrative law. Consequently, it is argued that jurisdiction can be abandoned as the essential underpinning of judicial review, the circularity within which administrative law jurisprudence is trapped broken, and a more productive analysis of the relationship between the courts and the administration and how best to regulate administrative discretion undertaken.  47 CHAPTER TWO  THE CHALLENGE TO DICEY'S THEORY. A. Introduction: General Criticisms. As illustrated in the previous chapter, the endurance of Dicey's conception of the rule of law owes much to its apparent simplicity and appeal to an underlying sense of good and morality.1 It defends the rights of the individual against the abuse of power and so gives form and legitimacy to judicial review. This is, however, an assessment to which, on any objective evaluation of its merits, it is not entitled. Dicey's theory, and the assumptions upon which much of his work is premised, namely that language is determinate and so questions of law capable of correct determinations have been subject to extensive criticism. Indeed, these criticisms are equally as well known as the principles themselves. For example, Dicey's insistence that parliament controlled the executive and, consequently, that ministerial responsibility and political accountability were effective means of containing the misuse of power and upholding the democratic constitutional framework, is founded on a questionable conception of the doctrines of ministerial responsibility and representative democracy and their capacity to fulfil the protective function assigned to them by Dicey. As early as 1911, in Dyson v. Attorney General, concern was expressed that ministerial responsibility was "a mere shadow of a name" rendering the courts "the only defence of the liberty of the subject against departmental  1  See discussion of the benefits of the rule of law at 23 above.  48 aggression."2 Certainly these 'safeguards' did not provide sufficient protection against the alleged misuse of discretionary power in Padfield v. Minister ofAgriculture, Fisheries and Food where the Minister's decision was at least partly based on the potential political embarrassment that he may have suffered if he had granted the applicant's request.3 Nor did they prevent the Prime Minister of Quebec in Roncarelli v. Duplessis from employing his powers to deprive Mr. Roncarelli of his current liquor licence, and right to future licences, because of his disapproval of Mr. Roncarelli's involvement with the Jehovah's Witnesses.4 The reality is that on occasion ministerial responsibility and parliamentary accountability will not prevent ministers and others from seeking to use their discretion, as in these cases, for improper purposes, notwithstanding Dicey's convictions to the contrary.  Likewise, Dicey's denial of the existence of 'administrative law,' and his failure to take account of the regulatory state during the period in which he was writing are serious weaknesses in his theory. As appreciated by many of his contemporaries there did exist, in the late nineteenth and early twentieth centuries, a plethora of administrative tribunals designed to execute the increasingly complex and rapidly expanding volume of regulatory legislation dealing with a broad range of social issues such as the provision of public health services, the alleviation of poverty and the supervision of industrial working  2  [1911] 1 KB. 410 at 424 per Farwell L.J.  3  [1968] AC. 997.  4  [1959] S.C.R. 121.  49 conditions.5 If the state was to fulfil effectively these obligations it was essential that it delegate discretionary powers to subordinate authorities and confer on them the jurisdiction to adjudicate over disputes between individuals and officials.  It was the  responsibility of these agencies to implement the policies and objectives of a state that was increasingly perceived as the provider of social and economic justice and welfare.6 The late nineteenth century was not the laissez faire era depicted by Dicey.7  He  misconceived the scope and evolving role of the state and so failed to perceive of the existence and increase in the number of administrative tribunals vested with discretionary power designed to implement these objectives.8  This had prescriptive as well as descriptive consequences.  Not only did Dicey  misdescribe the scope of the state, but he was openly hostile towards its expansion. Guided by whig anti - collectivist policies and an ideal of the rule of law rooted in the importance of the individual, he promoted a minimalist vision of the state. 9 Its growth, far from benefitting the individual, in his view, brought with it an increase in official  5  One should perhaps note however that by 1914 in his revised introduction Dicey was expressing some appreciation of the emergence of a regulatory state, although he persisted in his view that this process undermined the rule of law. M. Loughlin Public Law and Political Theory, (Oxford: Clarendon Press, 1992) at 155. 6  H. W. Arthurs, "Rethinking Administrative Law: A Slightly Dicey Business" (1979) 17 Osgoode Hall L.J. 1 at 13. 7  P. Craig, "Dicey: Unitary, Self-Correcting Democracy and Public Law" (1990) 106 L.Q.R. 105 at 129.  8  Ibid. 117.  9  T. R. S. Allan, "Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism" (1985) 44 C.L.J. 111 at 134.  50 power and so a threat to individual rights and liberties. As a nineteenth century liberal his prime concern lay with the protection of individual rights and individual autonomy. It was not on the provision by the state of social welfare programmes and the like.  Arguably, however, the expansion in delegated powers to the executive was not in itself inconsistent with Diceyan theory. For him, it simply necessitated that their exercise be supervised by the ordinary courts. Dicey's response to the growth of the state, in other words, was not merely to condemn it, but also to emphasise the necessity of controlling it through general legal constraints. This is somewhat at odds with his understanding of representative democracy as self correcting, the premise upon which much of his work is based. For, as the state continued to expand, the theory to which Dicey ascribed - that the wishes of the parliament would always correlate with those of the electorate became increasingly strained.10 Although the power of parliament was still controlled by the voters, it was being further delegated by the former to agencies that lay outside this two tier 'self correcting' power structure. Consequently, while the wishes of the electorate may indeed have continued to correlate with those of parliament, there was the considerable possibility that they would diverge from those of the increasingly powerful but non-representative administrative institutions to which parliament delegated discretionary power. Dicey's views on democracy, on which he based much of his constitutional and administrative law theory, was therefore being undermined.11  For discussion of this theory see p. 26 above. Craig, supra note 7 at 130 - 131.  51 It is not the purpose of this chapter to reiterate these stock arguments against Dicey's theory. They are well worn. Yet despite such censure the central tenets of Dicey's theory nevertheless remain pervasive. This is because, although valid, these criticisms do not attack the fundamental basis of his theory, namely the supremacy of the ordinary courts and the ordinary law.12 Consequently, this belief in the superiority of law now extends beyond Dicey, having become embedded as a premise of constitutional and administrative law, and sustaining judicial review. Indeed, Ivor Jennings wrote in 1915 that Dicey's "authority today is greater than that of any other public lawyer."13 He enjoyed the support of Lord Hewart and those who feared the 'new despotism' emerging during the inter war years and cautioned against the dangers of "organised administrative lawlessness" inherent in the new statutory powers of governmental departments. The concern, once again, was over the threat that such statutes posed to the supremacy of the ordinary law and the ordinary courts. Similarly, Hayek persisted in the Diceyan conception of the rule of law as defying the threat to individual liberty posed by the growth of the state, and the challenge to the superiority of the ordinary law resulting from the delegation of discretionary powers. Dworkin, on the other hand, emphasises the impartiality of the rule of law as evidenced in adjudication. That is, the judiciary fulfil their task through principled deliberations, not recourse to personal predilections. They apply an established law impersonally and objectively and so protect the rights of  12  P. Craig, Administrative Law 1st edn. (London: Sweet & Maxwell, 1983) at 29; Arthurs, supra note  13  Quoted in Loughlin, supra note 5 at 161.  6.  52 the individual and uphold the rule of law.14  It has even been asserted that  "[cjommitment to constitutional democracy, and freedom from arbitrary government, entails commitment to limited discretions, unambiguous rules of criminal law, the principles of natural justice, and the protection of traditional liberties - all those demands made by the rule of law,"15 The rule of law is supported as an essential element to any constitutional democracy, as a vehicle for the protection of the individual against the misuse of power by the state.  The ghost of Dicey continues to haunt the world of legal thought and, as will be demonstrated below, that of administrative law. His insistence on the superiority of the ordinary law is derived from conceptions that language is determinate and that legal instruments can generate correct answers, assumptions that continue to pervade law and legal theory.16 This is something that is addressed neither by the criticisms outlined above nor Dicey's supporters. Yet it is these ideas that have played a central role in the emergence of the doctrine of jurisdictional review. It rests on the presumption that legislative language is determinate, with apparent ambiguities over the interpretation of a statutory mandate, including jurisdictional boundaries, capable of only one correct  14  For a further discussion of this idea see A Hutchinson and P. Monahan, "Democracy and the Rule of Law" in A. Hutchinson, & P. Monahan, eds. The Rule of Law Ideal or Ideology (Toronto: Carswell 1987) 97. For a discussion of the theories of Hayek and Dworkin see J. Shklar, "Political Theory and the Rule of Law" in ibid. 1. 15  Allan, supra note 9 at 138.  16  Discussed at 37 - 45 above.  53 explication.17 It is this element of Dicey's theory that will be criticised below.  B. The Indeterminacy of Statutory Language. Sieging the premise that statutes are capable of only one correct construction, C.L.S. scholars have convincingly denounced the determinacy of statutory language. They argue that statutory interpretation and judicial review are "hopelessly indeterminate," 18 and incapable of yielding 'correct' answers to many questions of law, especially those involving vague and contested concepts.19 Arguments to the contrary are denounced as naive. How, for example, is it to be determined if a person has acted in "good faith" or if a contract should be deemed "unconscionable"? There will always be scope for interpretation. The construction of words used in sentences and statutory phrases is not self evident. Many factors such as the interpreter's personal perspective on a particular dispute, or the context in which it has arisen, will influence the meaning ascribed to a statutory term, thus rendering it impossible to establish a definite reading of a particular phrase. Subjective input will always be required to supply the omissions of the legislature and determine their ultimate meaning.  The problem will always be, in the area of administrative law, that discretionary powers  17  For a full explanation of this idea see p. 37 above.  18  H. W. MacLauchlan, "Judicial Review of Administrative Interpretations of Law: How Much Formalism can we Reasonably Bear?" (1986) 36 U.T.LJ. 343 at 349. 19  C. Yablon, "The Indeterminacy of the Law: Critical Legal Studies and the Problem of Legal Explanation" (1985) 6 Cardozo L.R. 917.  54 are conferred in language that is "elliptical, ambiguous and inherently open-textured,"20 so that it will often not be possible to discern conclusively the meaning of the statute or, more particularly, the jurisdictional boundaries prescribed therein. As the regulatory state continues to grow and the delegation of discretionary powers expand in volume and variety, this is a problem that will become more acute, and so the idea that there is a correct way to interpret a statute will become increasingly difficult to maintain. Discretionary powers will be more or less flexible and open textured depending upon the way they are formulated and the purpose which they are seeking to achieve. For example, the classification of goods in accordance with the customs act confers on a decision maker less flexibility than the power of a censor board to approve, prohibit or regulate the exhibition of any film. Whereas the latter gives the decision maker an unspecified criteria of determination, the former requires simply a decision of whether the goods in question are those specified in the act.21 Likewise the phrase "family status" in the Canadian Human Rights Act is open to greater interpretative room than the statutory imposition of a specific speed limit. Statutory provisions will always be more or less determinate depending upon the vagueness or specificity of the provision in issue. Yet even those that are more specific will be open to interpretation, for any grant of discretion is conferred in conjunction with surrounding standards and constraints in accordance with which it must be interpreted, so that some discretion will always exist, though will vary as to its degree. Thus in the example of the customs act as compared  20  P. Craig, Administrative Law 2nd edn. (London: Sweet & Maxwell, 1989) at 292.  21  MacLauchlan, supra note 18 at 353.  55 to the power of a censor board, while the board with power to simply regulate the exhibition of films may have a wider discretion than the customs officer, the apparently routine application of the customs act by the customs officer still leaves scope for interpretation of what is meant by the particular provisions of the statute and as to whether a good can actually be classified as such.22 Similarly, in an example cited by Dworkin, a sergeant directed to select the five most experienced officers from his or her patrol apparently possesses a weaker discretion than one who is charged simply with nominating five officers. For whereas the former is empowered merely to apply a given standard, that is, the "most experienced", the latter is enjoined to create one. However, as with the previous example, the standard to be adopted may not be clearly defined so that its application may necessitate the formulation of further more specific sub standards. Hence, the sergeant instructed to choose the most experienced officers although prima facie vested with a weak discretion may in actuality possess a strong discretion, being required to determine exactly what is meant by "most experienced."23 In the face of such variety it is not possible to stipulate rules for interpreting statutes. They are not capable of a unique 'true' interpretation. In every instance there will arise a decision about interpretation that has to be made and the official, or, in a case of judicial review, the courts, will have to make a choice as to which interpretation is to be preferred. Sometimes the choice will be closely conditioned by statutory language and 22 23  Ibid, at 354.  Discussed in D. Galligan, Discretionary Power, A Legal Study of Official Discretion (Oxford: Clarendon Press, 1986) at 14 - 17.  56 by the overall context of the statute; sometimes there will be virtually no constraint imposed by the text. But one would be hard pressed to point to a text in Canadian administration which is so clear on its face, so straightforward, that only one 'correct' interpretation, that being the one intended by the legislature, will be available ... texts are open to a range of reasonable interpretations.24 Ultimately a choice will have to be made, though at varying levels of generality.  This is evidenced, in part, by the actual practices of appellate courts. If law was completely determinate we would not expect to see the degree of curial vacillation evidenced in the cases discussed in the previous chapter.25 Judges would not dissent; or, perhaps more accurately, their competence might be questioned on the ground that any reasonably competent judge should be able to discern without difficulty the correct meaning of the law and apply it to the objectively true facts. The emergence of the reasonableness standard in administrative law can itself be taken as recognition by the courts that statutory interpretation is not a determinate exercise.26 Far from requiring a correct explication of the statutory text, the standard of reasonableness rather confers on the original interpreter the scope to impose the interpretation that he or she perceives to be the most appropriate in a particular instance. It is thus a standard aimed at allowing the decision maker the freedom to implement the 'best' reading of the statute, as opposed to the 'correct' one. It acknowledges that statutory phrases are  24  MacLauchlan, supra note 18 at 354.  25  See pp. 38 - 45 above.  26  MacLauchlan, supra note 18 at 372. Unfortunately however the courts have failed to appreciate that this is indeed what it is and so persist in their quest for the 'correct' law. See chapter one above.  57 better understood as capable of bearing reasonable interpretations, not correct ones. Unfortunately, however, this is a factor that is not explicitly appreciated by the courts themselves. Consequently the reasonableness standard enjoys only limited application. As regards jurisdiction conferring provisions the quest for the correct interpretation persists.27 Yet the reality is that language is often not determinate and therefore not capable of bearing correct interpretations.  These assertions of the inherently contextual and subjective nature of interpretation do not imply that the range of choice open to a decision maker is infinite, or that words can be interpreted to mean whatever one wants them to mean.28 There probably are answers that can be identified as incorrect. The reality remains however that there is often no uniquely correct answer. There is a range within which a decision maker must make a decision. Nor does this deny the possibility of predicting legal outcomes. They simply recognise the element of choice. As stated by Yablon legal materials can be used to justify virtually any position a client wishes to maintain. The experienced advocate knows that the doctrinal regime is sufficiently complex that there will always be some set of authoritative materials which, through skilful manipulation of the level of specificity and characterization of the facts, he can declare to be "controlling" at the case at bar. Similarly, he can be confident that no matter what authorities his opponent puts forward as equally dispositive, he will be able to find a basis for distinguishing them.29  27  See chapter one above.  28  D. G. Carlson, "Liberal Philosophy's Troubled Relation to the Rule of Law" (1993) 43 U.T.LJ. 257 at 282. 29  Ibid, at 917.  58 Most cases can be argued both ways, with legal doctrines being used to justify multiple results.  C. Illustrations of the Indeterminacy of Statutory Language. 1. The Charter.30 The Charter provides a perfect example of the indeterminacy of language and the consequent potential for radically divergent interpretations of statutory provisions. What does "equality", "freedom of expression", "freedom of association" and the like really mean?31 On a general level these concepts appear deserving of support. Upon closer analysis, however, it becomes evident that they do not possess an easily discernible meaning, but rather are capable of a multiplicity of interpretations, all of which are of equal plausibility. Because of the ambiguities inherent in the rights and freedoms under the Charter a uniquely correct and uncontroversial determination of their meaning is not possible. To insist otherwise serves only to create the further dilemma of why one interpretation of the statutory provision should be deemed 'more correct' than another and, consequently, of how to approach the indeterminacy of the preferred definition itself.32 In the Alberta Reference case,33 for example, the Supreme Court of Canada  30  Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982 c. 11. 31  J. Bakan, "Constitutional Arguments: Interpretation and Legitimacy in Canadian Constitutional Thought" (1989) 27 Osgoode Hall L.J. 123 at 125. 32 33  Ibid, at 164.  Reference re Public Service Employee Relations Act, Labour Relations Act and Police Officers Collective Bargaining Act (1987) 38 D.L.R. (4th) 161 S.C.C.  59 could not even agree over the fundamental issue of whether freedom of association was intended to include the right to strike. While the majority confined this freedom to the right to collect with no rights being conferred on the collective itself, the dissent held that freedom of association must be intended to protect the rights of the collective in the pursuance of its goals.34 The divergence between these two approaches has been explained as a difference of opinion over the purpose of the section.35 It was clearly not because one sector of the Court found the correct meaning of the provision while the other did not. 36 That such conclusions were arrived at is in itself evidence of the inherent indeterminacy of language and impossibility of discerning a correct interpretation of a statutory phrase.  2. Canada (Attorney General) v. Mossop.37 The Supreme Court of Canada in this case was unable to reach accord over the interpretation which should be ascribed to "family status" in the Canadian Human Rights Act.38  While the majority held that the meaning of family must be confined to the  traditional conception of a heterosexual family, the dissent defined it to incorporate same sex families. In arriving at such divergent conclusions neither the majority nor the dissent 34  Ibid, per Dickson C.J.C., Le Dain and Mclntyre JJ.  35  This difference has been identified as a collectivist approach of Dickson CJ.C. and an individualist approach adopted by the majority. See Bakan, supra note 31 at 156. 36  Ibid, at 155.  37  (1993) 1 S.C.R. 554 (hereinafter Mossop). See chapter one above for a discussion of the facts of this  case. 38  Canadian Human Rights Act, R.S.C. 1985, c. H-6.  60 focused exclusively on the statutory language. Rather, Lamer C.J. sought to ascertain the intention of Parliament in enacting this provision, and so examined it in the context of the statute as a whole, having regard to the ordinary meaning, the legislative history and the purpose of the provision. In assessing whether the Tribunal was 'correct' in its reading of the statutory provision, Lamer C.J. undertook an extensive enquiry into Parliament's intent in listing "family status" but not sexual orientation as a prohibited ground of discrimination in the Canadian Human Rights Act. He concluded that when Parliament added the phrase "family status" to the English version of the CHRA in 1983, it refused at the same time to prohibit discrimination on the basis of sexual orientation in that Act. In my opinion, this fact is determinative. I find it hard to see how Parliament can be deemed to have intended to cover the situation now before the court in the CHRA when we know that it specifically excluded sexual orientation from the list of prohibited grounds of discrimination contained in the Act. In the case at bar Mr. Mossop's sexual orientation is so closely connected with the grounds which led to the refusal of the benefit that this denial could not be condemned as discrimination on the basis of "family status" without introducing into the CHRA the prohibition which Parliament specifically decided not to include in the Act, namely the prohibition of discrimination on the basis of sexual orientation.39 Neither the ordinary meaning nor the context and purpose of the statute indicated a legislative intent to include same sex couples within the definition of "family status."  In relation to Parliament's intention as to who should determine the meaning of the phrase, the majority had regard particularly to the absence of a privative clause in the empowering statute and the level of expertise of the Human Rights Tribunal. The former was perceived by them as evidence of Parliament's intent that the courts should  Ibid, at 580.  61 intervene in the event of the tribunal making a mistake.40 As to the latter LaForest J. writing for the majority stated that the superior expertise of a human rights tribunal is limited to fact finding. "It does not extend to general questions of law such as the one at issue in this case. These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform. The courts cannot abdicate this duty to the tribunal."41  In contrast, L'Heureux - Dube J. dismisses entirely the majority's argument that to allow "family status" to include same sex partners would contravene Parliament's intent. Rather, she emphasises that because [t]he enumerated grounds of discrimination are not defined within the Act ... it was the intention of the legislature that, in the event of any ambiguity, the Commission and its tribunals would have the task of determining the meaning and scope of these concepts. This is at the core of the Board's jurisdiction.42 In L'Heureux - Dube's opinion, if Parliament had so desired it could have defined "family status." However, as indicated in the minutes of proceedings, Parliament intended that this task should reside with the Tribunal. 43 "[TJhe decision to leave the term undefined  40  The presence or absence of a privative clause is of considerable significance in indicating the intention of the legislature as to the degree of judicial intervention that it desires in a particular administrative decision. There was no such clause in the Mossop case. Consequently the court was of the opinion that it was the intention of the legislature that it should intervene in an appropriate instance, and that deference should not be accorded to the tribunal in matters other than findings of fact. 41  Supra note 37 at 585.  42  Ibid, at 610. Ibid, at 620 - 621.  62 is [thus] evidence of clear legislative intent that the meaning of "family status," like the meaning of other undefined concepts in the Act, be left for the Commission and its tribunals to define."44  In arriving at this conclusion L'Heureux - Dube J, like the  majority, did not focus exclusively on the statutory language, but rather emphasised the necessity of interpreting the provisions of the Canadian Human Rights Act "in the context of contemporary values" and having regard to the need for curial deference towards expert administrative agencies.45 To this end the Court will, according to L'Heureux Dube J, "examine not only the wording of the enactment conferring jurisdiction on the tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal."46 Only then is it possible to achieve the 'best' reading of the provision in question.47  It certainly did not result from a straightforward reading of the words  employed in the statute.  Consequently the judges arrived at diametrically opposed  conclusions, both of which are equally plausible, and neither of which can conclusively be branded as 'correct.'  That so many factors were examined by the court in its quest for the correct interpretation of the statute is itself evidence of the inability of words to generate a 44  Ibid, at 620.  45  Ibid, at 621.  46  See discussion at ibid. 596 - 600 and 621 - 622.  47  McLachlin and Iacobucci JJ. agree with L'Heureux - Dube J. on the meaning of "family status." They do however disagree on the issue of deference. Rather they agree with the findings of LaForest J. as to when deference should and should not be accorded.  63 determinate meaning. Clearly, the concept of family may be open to a multiplicity of interpretations. As stated by L'Heureux - Dube J, "[t]he traditional conception of family is not the only conception."48 "The multiplicity of definitions and approaches to the family illustrates clearly that there is no consensus as to the boundaries of family, and that "family status" may not have a sole meaning, but rather may have varied meanings depending on the context or purpose for which the definition is desired."49 It is simply not possible to find a correct definition of family and consequently determine whose was the correct judgement in this case. There is no reason why the majority's opinion is any more correct than that of the dissent. All that can ever be determined is one's interpretation of a statutory provision, based upon particular preferences, modes of reasoning, and so on.  Words alone cannot generate a correct interpretation.  Consequently, when drawing jurisdictional boundaries one answer is often equally as plausible as its alternative.  3. Dayco (Canada) Ltd. v. CAW - Canada50 In Dayco (Canada) Ltd. v. CAW - Canada there is again evidenced disagreement over the correct interpretation of a statute. In this instance, however, the divergence occurs not only within the Supreme Court of Canada, as in Mossop, but between the Supreme Court, the Ontario Court of Appeal and the Ontario Divisional Court. The case was  Supra note 37 at 624. Ibid, at 626. [1993] 2 S.C.R. 230 (hereinafter Dayco).  64 concerned with the jurisdiction of a labour arbitrator to hear a dispute between the appellant company and its retired employees, over the termination of group insurance benefits provided for by the collective agreement governing the terms of employment, despite the expiry of this agreement. The company argued that the arbitrator had no jurisdiction to arbitrate the dispute as the collective agreement had already been terminated at the time the complaint was lodged.  The arbitrator nevertheless  determined that he did have jurisdiction to hear the complaint, pursuant to section 44 of the Ontario Labour Relations Act.51  In accordance with this act he held that the  "matter was arbitrable," as the collective agreement had vested the retirees with benefits that extended beyond the terms of the agreement. His jurisdiction was therefore not dependant upon the existence of the collective agreement. The issue for the court to determine was thus the status of the benefits upon the termination of the collective agreement, and consequently the jurisdiction of the arbitrator pursuant to section 44 of the act.  It was held, in the first instance, by the Ontario Divisional Court that in  determining his jurisdiction the arbitrator had to interpret whether the matter was arbitrable within section 44 of the act correctly. The court held that he had failed to discharge this standard. The collective agreement did not vest the retirees with these benefits and as they had been terminated six months after the expiry of the agreement  51  Labour Relations Act, R.S.O. 1980, c. 228, s.44 governs the arbitration procedure to be employed in the event of a dispute over a collective agreement. The relevant provisions of sub - section (2) are as follows: Where a difference arises between the parties relating to the interpretation, application or administration of this agreement, including any question as to whether a matter is arbitrable ... either of the parties may ... submit the difference or allegation. ... The arbitration board shall hear and determine the difference or allegation and shall issue a decision and the decision is final and binding upon the parties...." (Emphasis added).  65 the arbitrator had no jurisdiction to determine the case. On appeal the Ontario Court of Appeal overturned the decision of the Divisional Court, and determined that the applicable standard of review of the arbitrator's decision was that of reasonableness. It held that the decision was not patently unreasonable. Finally, the Supreme Court of Canada again applied the correctness standard but, differing from the Divisional Court, held the arbitrator's finding to be correct. The benefits did extend beyond the terms of the collective agreement, and so the arbitrator's jurisdiction was not dependant upon the existence of the agreement. He had correctly interpreted section 44 of the Act in deeming the matter to be arbitrable.52  In the course of his judgement La Forest J, writing for the majority, stated that as the arbitrator was deciding upon jurisdiction he was required to arrive at a correct determination.53 Yet the divergent judgements in this case once again demonstrate that correctness is a standard that is unattainable. If it were possible to determine the correct interpretation of the statute there would not have been the degree of disagreement evidenced at each level of decision. The language employed in the statute was open to many varying, but all equally plausible, interpretations. Even La Forest J, although insistent that there is a right answer to issues of statutory interpretation, asserts that "the wording of the precise grant of power in section 44 is not determinative of the scope of the arbitrator's jurisdiction ... We must look further afield, considering first the context 52  See H. W. MacLauchlan, "Reconciling Curial Deference with a Functional Approach in Substantive and Procedural Judicial Review" (1993) 7 C. J. A L. P. 1 at 7 - 8 for discussion of this case. Supra note 50 at 248.  66 of these words in section 44, and the broader structure of the statute."54  He, for  example, considered at length the degree of deference that should be accorded to a labour arbitrator and the role of the privative clause in the section.55  Mossop and Dayco both illustrate indisputably the indeterminacy of language and the impossibility of interpreting statutes correctly. Clearly statutory provisions are capable of entirely opposite constructions.  In these examples, and that of the Charter,  interpretation of the provision in issue is a contextual exercise that involves the courts in an analysis, not only of the words employed in the statute, but of such other factors as the expertise of the decision maker and the degree of deference to which he or she is entitled, the presence or absence of a privative clause and the court's reading of that clause, and the interpretation of the statutory framework as a whole, including the purpose sought to be achieved through the enactment. In the cases dealing with freedom of association under the Charter it was also seen how the judges' political and social viewpoints may have been influential in their final determinations.  D. Conclusion. In this chapter it has been argued that the Diceyan conception of the rule of law, in particular its fundamental tenets that language is determinate and that consequently the jurisdiction conferring provisions of a statute are capable of only one 'correct'  54  Ibid, at 260.  55  See for example 263 - 269.  67 interpretation, must be dismissed as affording the foundation of the doctrine of jurisdictional review. That statutory interpretation does bear some relationship to the search for legislative intent is not here denied. As exemplified in the cases analysed in this chapter, however, language is not determinate and so the search for the intended boundaries of a decision maker's jurisdiction through language is not always possible. Consequently, statutory provisions cannot generate only one correct interpretation. To the extent that the doctrine of jurisdictional review is dependent upon these assumptions of determinacy and correctness, it is thus deprived of its underlying justification. Consequently as a doctrine of review it is unsustainable, and so can be abandoned as the essential underpinning of judicial review.  In the next chapter the consequences of maintaining a doctrine of review that is devoid of any logical basis will be examined. In particular it will be demonstrated that because of this lack of any theoretical justification jurisdiction is merely a veneer that masks judicial value choices and obfuscates the real issues in a case. Given the consequent inability of this doctrine to satisfy the objectives of judicial review it is concluded that it must be abandoned as a doctrine of review.  68 CHAPTER THREE  JURISDICTIONAL REVIEW: EFFECTS AND CONSEQUENCES. A. Introduction. This concern over the legitimacy and validity of the doctrine of jurisdictional review is not merely academic. The impact of this doctrine on the effectiveness and integrity of the administrative system, and those individuals subject to its decision making processes, is considerable. In the last chapter it was demonstrated that, as a ground on which to monitor administrative decision making, jurisdictional review lacks any underlying logical justification. It is not a sufficiently legitimate or logical premise upon which to found an entire discipline of review. Although sustaining the illusion of the superiority of the ordinary law, containing bureaucratic injustice, it merely affords the courts with an avenue of intervention that is sufficiently malleable to accommodate an outcome, in any given case, that is reflective of their particular value choices. It is not argued here that these value choices are made consciously by the judiciary and that the doctrine of jurisdictional review is employed deliberately to mask them and so legitimate the ultimate decision. It is simply asserted that it is inevitable, in any decision making process, that the value choices of the decision maker will be influential and so reflected in the ultimate determination. Jurisdiction is simply the veneer that masks the value choices and so the political direction of a decision. The real issues in a dispute before the court are consequently narrowed as they are legalised and manipulated so as to conform to this framework of jurisdictional review. Inevitably, they are obfuscated by this process of  69 legal reasoning and so often forgotten or ignored.  It is these two themes that are examined in this chapter. It is demonstrated, through an analysis of those decisions in which the Supreme Court of Canada has reviewed the findings of various administrative agencies, in particular, Canadian Human Rights Commissions and Tribunals, how jurisdictional review operates as a veneer, and how the real issues in a case thereby become obfuscated. The argument running throughout is that jurisdictional review must, if administrative decision making is to be more effectively monitored and bureaucratic injustice curtailed, be eliminated as a ground of review.  B. The Veneer of Jurisdictional Review. 1. Judicial Value Choices. It is inherent in any decision making process that it is the value judgements of the decision maker, whether administrative or judicial, that are influential and so reflected in the determinations at which he or she ultimately arrives. As expounded in the previous chapter every level of decision making embroils the decision maker within a process of interpretation that entails the making of choices.1 These choices are in turn reflective of the value preferences of the decision maker. In jurisdictional review cases the scope for the making of such choices renders inevitable the imposition of the political, social, economic and other predilections of the judges on the immediate dispute before the court, so that it is their attitudes and their perspectives that ultimately wield  1  See chapter two above.  70 the greatest persuasive force in judicial decision making.2 Whether the standard of correctness or reasonableness predominates or whether intervention or deference to administrative agencies is favoured, is simply judicial choice. "[W]ords do not interpret themselves and ... the analysis of language is not a value free exercise."3  The values promoted by judicial decision making are reflective of the particular position that the judiciary occupy within society.  As an homogenous institution that is  predominantly white, middle or upper class and male, the judiciary "operate[s] at or near the centres of social, economic and political power in society, and within an institutional framework committed to preserving and perpetuating the social and economic order as it exists."4  The values and perspectives that judges bring to decision making  consequently derive from their "experience, socialization, political perspectives, selfperceptions, hopes, fears, and a variety of other factors,"5 and the premises instilled in them by these background experiences are unquestioningly relied upon in the interpretation of a statutory text.6 Clearly these experiences are not random.  The  attitudes and viewpoints the judiciary promulgates are representative of the education  2  J. Bakan, "Constitutional Arguments: Interpretation and Legitimacy in Canadian Constitutional Thought" (1993) 27 Osgoode Hall L.J. 123 at 174. 3  A. Hutchinson, "The Rise and Ruse of Administrative Law and Scholarship" (1985) 48 M.L.R. 293 at 305.  4  Bakan, supra note 2 at 173.  s  D. Kariys, "Introduction" in Kairys D. ed. The Politics of Law A Progressive Critique (New York: Pantheon Books, 1990) 1 at 6. 6  J. Bakan, "Constitutional Interpretation and Social Change: You Can't Always Get What You Want (Nor What You Need)" (1991) 70 Can. Bar Rev. 307 at 319.  71 and beliefs to which it as an homogenous class has been exposed. These perspectives dictate that the result arrived at will, whether consciously or unconsciously, mask a particular political direction.  Although this may engender some degree of consistency in judicial decision making, the problem remains that judges are not representative of society. "As members of an elite class engaged in a fundamentally conservative enterprise, their perspective will be radically different than that of other, and particularly non-elite classes in society."7 They neither understand many of the social and other issues with which they are confronted, nor are capable of empathising with the array of interests inherent in the disputes immediately before them. Their personal attributes and the institution of which they are an integral part constrains them to "interpret social phenomena and legal materials from the standpoint of the dominant groups in society with whom their professional discipline has historically been allied."8 The opinions adhered to by judges on the wide range of social, economic, political and other factors that comprise administrative decisions, and the purposes promoted by a grant of power, for example, whether freedom of association under the Charter should safeguard the right to strike or be confined merely to the protection of the right of individuals to form a collective, will inevitably influence the judgements they reach. The impact of such partiality on judicial and administrative decision making and the integrity of the administrative process as a whole is  7  Bakan, supra note 2 at 173.  8  Ibid, at 174.  72  considerable.  This is not to assert that judges consciously make these particular choices. Nor does it imply that jurisdictional review is employed deliberately to mask these value preferences. Nevertheless, the ultimate effect of a doctrine that lacks any underlying rationale is that judicial attitudes and perspectives will be permitted to prevail. In light of this it is futile to argue in favour of a neutral judiciary impartially and reasonably interpreting and applying a pre-existing and uncontroversial law. Any predictability evident in judicial decisions does not emanate from the determinacy of law or legal reasoning or methodology, but is rather attributable to the political or social value judgements prevalent at the time a particular decision is rendered.9 The justification of judicial decisions "in terms of "facts" that have been objectively determined and "law" that has been objectively and rationally "found" and "applied""10 merely serves to perpetuate the myths of judicial objectivity and doctrinal determinacy. In the cases analysed below it is illustrated how the judiciary can often be seen to be imposing their preferred value judgements in a specific situation, and how this ultimately effects the outcome of a particular case.  9  Kairys, supra note 5 at 4.  10  Ibid.  73 2. Canada (Attorney General) v. Mossop.11 It is arguable that the decision in this case, as in any decision making process, is simply reflective of the values to which the judiciary, as representatives of a distinct segment of society, subscribe. As expounded in chapter two language is not determinate. The definition of "family" is certainly far from self evident, and it is absurd to suggest that it has one uniquely correct meaning. The constituency of a family is debated extensively in a vast literature on this topic,12 so that the decision to confine "family status" to heterosexual families cannot be deemed inevitable or rationally necessary. "It does not flow inextricably from the words of the statute, but demands a judicial interlocutor."13 The decision to confer on same sex couples and heterosexual couples different status under the Act is a choice. It is not a given. At every level of the decision making process value choices were made and the concept of jurisdiction served, even if unintentionally, to disguise this.  It is arguable that it was not intended that "family status" should exclude from the protection of the Act homosexual partners living together as a family, for this was not an issue of sexual orientation, it was one of family, and regardless of personal opinions on homosexuality, Mr. Mossop's situation surely falls within the spirit and purposes of the Act, expressed in section 2 as  11  (1993) 1 S.C.R. 554 (hereinafter Mossop).  12  Ibid, at 623 - 624.  13  Hutchinson, supra note 3 at 308.  74  ... to extend the laws in Canada to give effect... to the principle that every individual should have an equal opportunity to make for himself or herself the life that he or she is able or wishes to have ... without being hindered in or prevented from doing so by discriminatory practices ...14 This was indeed the choice and ultimately the conclusion of the Tribunal. Asserting that a purposive approach to statutory interpretation, which confers "a reasonable meaning which best accords with the Act," is demanded by human rights codes, it held that "family status" did include homosexual partners.  This was not so in the Federal Court of Appeal or the Supreme Court of Canada. Far from adopting a purposive interpretation, both courts employed a formalistic approach, questioning whether it was the Tribunal that had the final jurisdiction to define "family status" or whether this was something that lay exclusively within the realm of the court. Both courts arrived at the conclusion that it was for the courts to interpret conclusively "family status" and that this provision did not incorporate homosexual relationships. This choice is reflective of a clear political preference in favour of maintaining the traditional conception of the family as opposed to extending it to same sex couples. As such it is arguable that the decision "tacitly sanctions a [particular] scheme of social arrangements" endorsed by the judiciary.15  It is unquestionable that the choices made by the majority influenced the manner in which "family status" was interpreted. That is, disagreeing with the value choices of the 14  Canadian Human Rights Act, R.S.C. 1985, c. H-6, s.2.  15  Hutchinson, supra note 3 at 312.  75 Tribunal, the court chose not to adopt the purposive reasoning there employed, but rather advocated a formalistic and legalistic approach that called simply for a reading of the statutory language. Consequently, both majority judgements are notable for their lack of analysis and apparent inability to appreciate fully the nature and complexities of the dispute before them. In particular, Lamer C.J.'s insistence that this is simply a question of statutory interpretation on which the court must ultimately judge is unconvincing. Little or no consideration is given to why issues of statutory interpretation must be deemed questions of law, and so within the exclusive realm of the court. This is accepted without doubt. Likewise, the potential interpretations of "family status" are not analysed nor is the reasoning adopted by the Tribunal seriously examined. It has already been explained that language is indeterminate and so statutory provisions capable of many diverse readings, and as adumbrated above and as indicated by the immense literature, examined by L'Heureux - Dube J. alone, analysing the constituency of a family, the provision here in question is no exception.  Yet this is a factor apparently  unappreciated by the majority. Having arrived at their choice as to its preferred meaning they profess to be engaging in a simplistic exercise of reading the words of the statute. The issue is simply castigated as being beyond the exclusive jurisdiction of the Tribunal. By interpreting "family status" as inclusive of homosexual partners the Tribunal unequivocally 'got it wrong.'  Lamer C.J.'s explanation of why his interpretation of the statute is the 'correct' one is not however necessarily any more, or less, convincing than that of the Tribunal. Just because  76 his verdict happens to be the final one does not render it the best or the correct one. It is simply an alternative one. Indeed it is arguable that he chose to emphasise that sexual orientation was not a listed ground of discrimination, allowing him to characterise the situation before him as one of sexual orientation, and so not within the purview of the Act. He could equally as legitimately have elected to characterise it as a question of "family status" and not one of sexual orientation. This, however, would have required a more expansive appreciation of the concept of family and a less formalistic line of argument, that could have, for example, considered that mHaigv. Canada, decided prior to the Supreme Court decision in Mossop, sexual orientation was added to the list of prohibited grounds of discrimination in section 3 of the Canadian Human Rights Act.16 From here Lamer C. J. could have argued that in light of the subsequent amendment to section 3 there exists no valid reason to insist upon the exclusion of sexual orientation from the protection of the Canadian Human Rights Act and, therefore, no need to categorise this particular case as either one ground or the other. Given the inclusion of both in the Act there remains little reason to maintain such a stringent distinction between family status and sexual orientation. Concluding that the situation at issue did come within "family status" would not therefore have necessarily produced a result of which Parliament would have disapproved. Instead Lamer C.J. chose to characterise this as a case that fell within a ground which he perceived as categorically excluded from the Act. By so doing he was able to afford himself with an avenue by which to avoid having  16  (1992) 9 O.R. (3d) 495. It should be noted however that although decided prior to the final determination in Mossop it was decided after the Mossop case was commenced.  77 to deal directly with the issue of homosexuality and the impact of same sex relationships on the perceived norm of the family as heterosexual. His entire reasoning process is indicative of the political preference which he chose to endorse.  This approach was legitimated by the veneer of jurisdictional review. And so, insisting that all it was doing was answering a straightforward question of law, the majority was able to conceal its value choices. Both Lamer C.J. and LaForest J. were excessively preoccupied with questions of jurisdiction and their judgements are imbued with the Diceyan conception of the supremacy of the ordinary law and the ordinary courts. That the Tribunal may have been better equipped to deal with the issue was simply not entertained, for the Supreme Court was undoubtedly superior. In short the judgements are clearly illustrative of the capacity of the doctrine of jurisdictional review to enable the judiciary, under the guise of statutory interpretation, to impose their own personal preferences and ideologies, albeit unconsciously, on the dispute before the court.  L'Heureux - Dube J. in dissent evinces a somewhat wider perception of the issue before the court than do the majority, although, as demonstrated below, she too is moving from an ideological position. Analysing from the outset the appropriate ambit of judicial review and the proper institutional relationship between the courts and the administration, she displays an appreciation that the divergencies amongst administrative bodies renders a universal approach to judicial review naive. Examining the rationale for according deference to an administrative agency she further highlights an issue  78 overlooked by the majority, namely, that the courts themselves may be less well equipped than the bodies under review for dealing with the kind of questions before them. Acceptance of and respect for the specialised expertise of certain administrative bodies necessitates judicial deference in a case such as the one before the court in Mossop, for it is the agency or tribunal that is often more closely connected with the subject matter in question and the context in which it has arisen, and accordingly able to develop a sensitivity to the kind of issues under examination which the courts, as generalist bodies, are unable to manifest.17  Despite its apparent virtue, it can nevertheless be concluded that L'Heureux - Dube J's judgement, too, reflects particular value choices, and that once again the guise of jurisdictional review affords a veneer of legitimation. Regardless of the merit of her eventual outcome, that her decision exhibits a political stance cannot be denied. Although her approach is arguably apparently preferable to that of the majority it is not entirely satisfactory, for she would continue to view the courts as the final arbiters of a decision maker's power. Although avowedly acknowledging the difficulties inherent in the concept of jurisdiction, rather than seeking to free herself from them, she strives to combine it with the idea of deference. In this particular instance her choices correlated with those of the Tribunal. Illustrative of the susceptibility of any given case to the imposition of the personal predilections of the judiciary is the divergence of opinion between the majority and dissenting judgements in this case. L'Heureux - Dube J.'s  17  See L'Heureux - Dube J.'s discussion of deference supra note 11 at 595 - 600.  79 approach is no less open to the imposition of personal value judgements than that of the majority. If she had disagreed with the result of the Tribunal she could have chosen to adopt the approach of the majority.  At most her judgement indicates a general  agreement with the value choices and conclusions of the Tribunal.  The Mossop case is manifestly illustrative of the scope inherent in the jurisdictional questions doctrine for the accommodation in any case of judicial value choices, and that, far from being of merely an academic concern, this does have significant impact on the administrative process. The judgements reveal varying degrees of political, social and other ideologies, which influence considerably the ultimate result. By virtue of the flexibility of the concept of jurisdiction these factors will continue to infiltrate judicial decision making. All the judges in this case were able to impose, albeit unconsciously, their value choices about the desirability of considering homosexual partners a family. Not all relevant factors were examined by the court, and, rather than adopting a functional approach, it sought relentlessly to define the narrow legalistic limits of jurisdiction, apparently unaware of the practical impact of such theorising on the context, as a whole, in which it reached its decision.  3. Other Human Rights Cases. It is not only in Mossop that this imposition of judicial value choice is evident. Mossop is merely a culmination of a series of cases in which the Supreme Court of Canada has reviewed decisions of Canadian Human Rights Commissions and Tribunals and, under  80 the guise of jurisdictional review, engaged in the kind of judicial polemic evidenced in Mossop.  The Supreme Court of Canada in Bell v. Ontario Human Rights Commission18 was required to interpret the meaning of "self contained dwelling unit" within section 3(b) of the Ontario Human Rights Code which prohibits the refusal to lease a "self contained dwelling unit" to any person "because of the race, creed, colour, nationality, ancestry or place of origin of such person..."19 The complainant, a Jamaican man, alleged that he had been denied such a dwelling unit by the applicant because of his race and colour, an allegation that was upheld by the Ontario Human Rights Commission. The basis of the applicant's appeal to the Supreme Court was that the Commission's jurisdiction was dependent upon the existence of a "self contained dwelling unit." Only if there existed such a unit did the Commission possess the jurisdiction to determine if there had occurred discrimination on any of the grounds enumerated in section 3 of the Act. H e argued that the Commission lacked the jurisdiction to hear this complaint, for the premises in question did not constitute a "self contained dwelling unit" and so were not subject to the legislative strictures against discrimination. The Supreme Court agreed,  [1971] S.C.R. 756. Ontario Human Rights Code, S.O. 1961 - 1962, c.93, s.3 states: No person, directly or indirectly, alone or with another, by himself or by the interposition of another, shall, (b) discriminate against any person or class of persons with respect to any term or condition of occupancy of any ... self contained dwelling unit, because of race, creed, colour, nationality, ancestry or place of origin of such person or class of persons.  81 overturning the Commission's finding.  In arriving at this conclusion the court does not engage in the kind of analysis of concepts of jurisdiction and the expertise of the Commission that is evident in the Mossop case. It was simply accepted unquestioningly from the outset that this was a straightforward exercise of designating part of the statutory provisions as jurisdictional and determining with which body the final jurisdiction to interpret them lay. As in Mossop this task of statutory interpretation was presented as a question of law respecting the scope of the operation of the Act, and on the answer to that question depends the authority of the board to inquire into the complaint of discrimination at all. The Act does not purport to place that within the exclusive jurisdiction of the board, and a wrong decision on it would not enable the board to proceed further.20 There is exhibited in this case, as in Mossop, an excessive pre-occupation with the jurisdictional boundaries of the Commission's powers. Consequently, Martland J, far from employing the approach of the Commission, aimed at achieving to the optimum degree the stipulated objectives of the Act, adopts the narrow and rigid legalistic approach that underlay the decision in Mossop. He, too, was insistent upon ensuring compliance with the legislative intent, which he translated as the imposition of a strict and literal interpretation of the enabling statute, at the expense of the real issues in the case. Thus he concludes that just as the Tribunal in Mossop did not have the jurisdiction to determine conclusively the meaning of "family status," the Commission in this case did not have the final jurisdiction to interpret "self contained dwelling unit." A correct  Supra note 18 at 775.  82 reading of the statute was required and, in his opinion, "the premises leased by the appellant ... may well be "dwelling units," but they were not "self contained" dwelling units."21  In designating this as a jurisdiction conferring provision that can be conclusively interpreted only by a court, and castigating the Commission's interpretation of it as incorrect, Martland J. was making a choice. As in Mossop, it is arguable that it was Martland J.'s unconscious value preferences on the issue before him that influenced his ultimate decision. No convincing explanation of why statutory interpretation must be deemed a question of law is submitted, nor is any serious consideration accorded to why this particular statutory provision is jurisdictional and why the Commission's conclusion was wrong and Martland J's correct. Avowedly the phrase "self contained dwelling unit" may be less indeterminate than "family status," and as such leave less scope for the imposition of judicial choice, and certainly in interpreting the provision Martland J. did have regard to the legislative intent underlying its enactment.22 In ascertaining this intent, however, he examined only the wording of previous constructions of this section, concluding that "in the light of the past history of the legislation, it would appear to me that [section 3] includes now either a self-contained house or self-contained premises similar to an apartment in an apartment house."23 No consideration was accorded to  21  Ibid, at 768.  22  Ibid, at 767 - 768.  23  Ibid.  83 the possibility that the amendments to the section were intended to extend the scope of the provision so as to enable the furtherance of the purpose of the Act, namely the elimination of discrimination. Martland J. could have chosen to interpret the provision less stringently and having greater consideration for the purposes of the Act and the kind of behaviour that it was designed to prevent, and still have implemented the will of Parliament. For this was surely the type of situation that the Act was concerned to curtail. As with all statutory provisions it is absurd to suggest that it has only one correct interpretation. "Self contained dwelling unit" is susceptible to numerous interpretations. There is no indication in the statute as to which is the one to be accorded. The decision to restrict it to exclude the kind of premises in question here was not predicated by the words of the statute alone. It was a choice made by Martland J. after having considered all the factors that he deemed relevant. The court rather than electing to give full weight to this it favoured a rigid and literal approach to statutory interpretation.  It has been argued that since the decision in Bell the Supreme Court of Canada has accorded human rights agencies greater scope for determining the breadth with which their statutory frameworks should be interpreted.24 As arguably evidenced in such cases as Action Travail des Femmes v. Canadian National Railway,25 Robichaud v. The Queen26 and Syndicat des employes de production du Quebec et de I'Acadie v. Canadian 24  A. H. Young, & R. A. Macdonald, "Canadian Administrative Law on the Threshold of the 1990's" (1991) 16 Queen's L.J. 31 at 42. 25 26  [1987] 1 S.C.R. 1114 (hereinafter Action Travail). [1987] 2 S.C.R. 84 (hereinafter Robichaud).  84 Human Rights Commission and CBC,21 the court has indeed furnished legislative provisions with broad, purposive interpretations. However, merely declining to overturn tribunal decisions should not be mistaken for a judicial awareness of its imposition of value judgements and a consequent decision to confer on administrative agencies wider scope to interpret their empowering statute.28 Rather, it can be argued that this is simply reflective of the choices of the court correlating with those of the administrative agency.  In Action Travail, for example, the Supreme Court of Canada upheld a finding of the Human Rights Tribunal that Canadian National Railway's recruitment, hiring and promotion policies discouraged women from working in blue collar jobs, and that there be implemented a remedial employment programme demanding the mandatory employment of a pre-established percentage of women. C.N. argued that this order fell beyond the jurisdiction of the Tribunal as expressed in section 41(2)(a) of the Canadian Human Rights Act which stipulated that the Tribunal's powers were "limited to prescribing measures for the prevention of the recurrence of discriminatory practices in the future, and not to remedy the consequences of past discrimination."29 The Supreme Court held that the order was within the Tribunal's jurisdiction. Dickson J, writing for the court, examined the purposes of the Act and finding that the "remedy was designed  [1989] 2 S.CR. 879 (hereinafter L'Acadie). Young and Macdonald, supra note 24 at 69. Canadian Human Rights Act, S.C. 1976 - 1977, s. 41(2)(a).  85 to break a continuing cycle of systemic discrimination," concluded that the order "fell within the general rubric of prevention in that the measures were necessary to ensure that future workers would not face the same insidious barriers as their forebears."30 It was categorically within the jurisdiction of the Tribunal to mandate such a remedial programme.  That the Supreme Court chose not overturn the Tribunal's decision is once again simply evidence of the correlation between the value choices of the Tribunal and the Supreme Court of Canada.  Certainly there is nothing in the judgement to suggest that the  interpretation of the Tribunal was supported because of its expertise in dealing with these kinds of issues.31 The case was perceived by the court purely in jurisdictional terms, namely, whether it was within the Tribunal's jurisdiction to order such a programme of reform. The curial approbation enjoyed by the Tribunal is demonstrative of nothing more than a judicial agreement with and approval of the particular finding of the Tribunal in this case. It was not too difficult or too threatening for the court to agree with the Tribunal. And, as always the concept of jurisdiction provided the veneer that legitimated its decision. It was not because of judicial deference. As with the cases examined above there is no analysis of the purposes of the Act or the evidence before the Tribunal and no discussion of the expertise of the board for dealing conclusively with these issues. Dickson J. does state in his judgement that  30  A. Young, "Keeping the Courts at Bay: The Canadian Human Rights Commission and its Counterparts in Britain and Northern Ireland: Some Comparative Lessons" (1993) 43 U.T.LJ. 65 at 69 - 70. Ibid, at 70.  86 [h]uman rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognise that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimise those rights and to enfeeble their proper impact. Although it may seem commonplace, it may be wise to remind ourselves of the statutory guidance given by the federal Interpretation Act which asserts that statutes are deemed to be remedial and thus to be given such fair, large and liberal interpretation as will best ensure that their objects are attained. 32 The message delivered in this statement is that the court would have reached the same result.33  Two other cases which demonstrate further that judicial deference does not underlie the upholding of a Tribunal decision are Robichaud34 and L'Acadie?5  In the former the  Canadian Human Rights Tribunal found that Mrs. Robichaud was the victim of sexual harassment. On appeal to the Supreme Court of Canada the Tribunal's determination was upheld. "On this basis then, one might see this case as some evidence of judicial deference to human rights commissions. On closer examination, however, one finds that judicial restraint or deference seems to have played no role in the decision."36 LaForest J. writing for the majority discussed issues of statutory interpretation, agreeing with  Ibid, at 70 - 71. Ibid, at 71. Supra note 26. Supra note 27. Young, supra note 30 at 74.  87 Dickson J.'s statement that "the Act must be interpreted as to advance the broad policy considerations underlying it .... the rights enunciated in the Act must be given full recognition and effect consistent with the dictates of the Interpretation Act that statutes must be given such fair, large and liberal interpretation as will best ensure the attainment of their objects."37 There is, however, nothing in this statement, or the remainder of his judgement that denotes deference to the Tribunal's role of interpreter. It is rather indicative of a perception that it is the courts that have the final and unreviewable jurisdiction to interpret the provisions of the Act.38 Again, no concern is afforded to the expertise of the body in question for dealing with these issues. The court here simply agreed with and approved of the choices and ultimate conclusion of the Tribunal and so legitimated its decision under the guises of jurisdiction and curial deference to agency decision making.  In L'Acadie a complaint was laid with the Canadian Human Rights Commission under the equal pay for equal work provision of the Canadian Human Rights Act,39 "that C.B.C. employees in the 'fabrication et manipulation des decors' section, who were predominantly male, were paid more for work of equal value than employees in the 'fabrication et manipulation des costumes' section, who were predominantly female."40  Ibid, at 75. Ibid. Supra note 29 c.33, s.ll. Young, supra note 30 at 78.  88 The Commission dismissed the complaint as unsubstantiated, following an investigation that showed that any discrepancy was based not on sex discrimination but on job misclassification. The issue with which the Supreme Court of Canada was confronted was whether the Commission's interpretation of section 11 of the Act was 'correct.' Sopinka J, writing for the majority, held that the Commission had correctly applied section 11 of the Act. This apparent display of deference exemplifies merely a judicial agreement with the result of the Tribunal. And, once again the language of jurisdiction and of correctness predominates. Sopinka J, for example, postulates that "I am satisfied that the Commission correctly applied s.ll to the facts of this case."41 Similarly, the Chief Justice added "[i]n my view, this appeal can be entirely disposed of on jurisdictional and procedural grounds, and accordingly, I do not find it necessary or appropriate to deal with the correctness of the Canadian Human Rights Commission's interpretation of s.ll of the Canadian Human Rights Act, S.C. 1976 - 77, c. 33."42 As with the other cases discussed, it is arguable that it was the court's value choices that, again unconsciously, dictated this result.  C. The Obfuscation of the Real Issues in a Dispute. The perceived necessity to adapt any particular dispute to the framework of jurisdictional review ultimately results in the real issues before the court becoming obscured, as they are adapted to conform to this jurisdictional framework. Contextual factors become  Ibid, at 80. 42  Ibid.  89 obscured and concrete analysis of these issues disqualified as all questions are narrowed and so legalised to conform to the formalised legal discourse. Consequently, whenever tribunal or agency decisions are challenged before the courts the differences between the various agencies and tribunals are overlooked, and so they are abstracted out of the particular social and political contexts in which they operate and the dispute examined as if there is one universal legal approach to reviewing all administrative decisions.  The Charter43 provides a perfect example of how questions are legalised and consequently narrowed so that the real issues before the court in any particular case are often overlooked. It has been argued, in relation to charter adjudication, that judicial perceptions of the rights and freedoms embodied in the Charter are shaped by the ideology of formal equality, that is, the premise that all rights and freedoms are conferred equally and universally structures the manner in which the provisions of the Charter are interpreted by the courts.44  Consequently, when disputes arise over  whether a particular right or freedom has been violated the assumption that underlies their resolution is that everyone, regardless of inequalities of social and economic wealth or power, is possessed equally of that right or freedom. Yet, freedom of expression, for example, although a laudable concept, is not a freedom that is conferred either equally or universally, for some groups are possessed of far greater power than others. Yet in the legalised discourse this is overlooked as the entire issue is narrowed to a question  43  Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982 e l l . Bakan, supra note 6.  90 purely of competing legal rights. "[AJctual relations of power among groups are usually ignored. Questions about which groups are vulnerable to state repression, and thereby need judicial protection of their freedom of expression, and which groups are not, are simply ignored: everyone is entitled to freedom of expression."45 And so, the underlying rationale of freedom of expression, namely "concern about state repression of disempowered and dissident groups,"46 is apparently forgotten, as large companies "are protected from state regulation aimed at curbing their disproportionate and often harmful influence."47 Such legalisation of discourse renders apparently coherent the ultimate result. Yet, the real issue, that because of their power and status, some groups have greater freedom of expression than others, becomes obfuscated. This seems to go unnoticed as the discourse is couched in legal terms and so given an aura of legitimacy.  Charter adjudication is no different from any other form of legal decision making. Demonstrating how a particular ideology can structure the perception and legalisation of a specific issue, this discussion exemplifies how the real issues in a dispute can be ignored. This is no less evident in cases of judicial review of administrative decision making. The doctrine of jurisdictional review structures the perception of the issues before the court in a manner similar to that of the ideology of formal equality. It is the Diceyan legacy of the assumptions of the superiority of the ordinary courts, the  45  Ibid, at 312.  46  Ibid, at 313.  47  Ibid.  91 objectivity of the judiciary and the correctness and determinacy of legal results that have culminated in the discourse of jurisdictional review, and the consequent structuring of the manner in which the courts perceive and resolve administrative law disputes. As will be demonstrated in the cases analysed below, real issues are lost sight of as courts become embroiled within the vagaries and obscurities of justifying their approach in terms of jurisdictional review.  1. Canada (Attorney General) v. Mossop.4*  Once again it is Mossop that exemplifies the extent to which the doctrine of jurisdictional review of administrative decision making can obscure the central question before the court. In the course of finding that "family status" did not incorporate same sex couples, the majority here asserted that although there may exist, from a sociological perspective, grounds supporting Mr. Mossop's relationship with Mr. Popert as familial, this was not relevant to the legal understanding of family relationship. Rather than examining the dispute within its entire context, and the extent to which this sociological perspective could be accommodated within the statute, the court continued to work within a purely legalised framework so that the real issue in the case, that of the award of spousal benefits, did not enjoy the examination of the court.49  48 49  Supra note 11.  It is not necessarily argued here that it is for the courts to adopt a wider role and assume responsibility for dealing with these kinds of issues, given that they are largely issues of social or political concern and so best dealt with by the elected representatives of the people. It is however argued that because the courts are apparently often unaware of these issues they are not deciding the cases before them having regard to all the relevant issues.  92 Indicative of the lack of consideration accorded to the underlying issue in this case is the disrespect afforded, by the majority, to the expertise of the Tribunal to interpret "family status." The majority may have been correct in determining that this was not the kind of body that has the pre-requisite expertise for determining conclusively questions of law. However, it was not a foregone conclusion that the interpretation of "family status" was such a question. The court could have classified it as a question of fact on which the Tribunal was competent to determine. Certainly, as explained earlier, there were no reasons furnished as to why this must be deemed a question of law to be determined only by a court. Had it been conceived of in this manner the real issue in contention, that of discrimination in relation to the conferral of spousal benefits, could have been examined by the tribunal.50 Because of the framework of jurisdictional review and the consequent legalisation of the definition of "family status," the court was unable to dispose of the issue in this way. It was rather dealt with as an abstract legal question separate from the context in which it arose and the context of the statute as a whole.  2. Bell v. Ontario Human Rights Commission.51 As expounded above the Supreme Court of Canada appeared content in this case to castigate the issue before it as one of a straightforward exercise in statutory interpretation. Section 3 of the Canadian Human Rights Act simply did not apply to the premises in question as they did not qualify as a "self contained dwelling unit," and so the  As explained earlier this would not necessarily have contravened the intention of Parliament. Supra note 18.  93 Human Rights Commission lacked the jurisdiction to inquire if there had occurred any discrimination. This was not an issue that required any consideration.  Clearly the predominant issue in the case, that of racial discrimination was not however addressed. Because of the doctrine of jurisdictional review this issue was overlooked, as the dispute before the court was narrowed and legalised into the prevailing framework of jurisdictional review. In this process the dispute and the purposes of the statute were taken out of their context and the dispute analysed in a vacuum. So obscured had the issues in this case become because of this process that while Martland J. appeared unconcerned with the Act's purpose of eradicating racial discrimination he was still able to state that should the full course of inquiry as provided for in the Act be undertaken, namely the appointment by the Minister of a board of inquiry and its subsequent recommendations to the Commission and from there to the Minister,52 "[t]he risk of delay to the appellant is obvious."53 This would seem to suggest that the rights of the applicant are treated with greater respect than those of the complainant.  This is  definitely at the expense of the purposes of the Act and the real issue, that of whether the complainant suffered racial discrimination. If the court had not been constrained by the framework of jurisdictional review maybe the issue intended to be addressed by the legislation could have been dealt with directly. Rather the court focused on the narrow distinction of whether the premises in question in this case really constituted a "self  Ibid, at 769. "Ibid.  94 contained dwelling unit." It has been asserted that Martland J's conclusion that the legislative history of the provision is clearly indicative of an intention to include only apartment like premises within the protection of the Act "collides with the socioeconomic framework of the legislation,"54 for the people who really need the Code's protection are lower income blacks or other immigrant groups. They naturally prefer the kind of low-cost accommodation offered by Bell, a flat in a converted private home. Yet the Court is saying that the protection of the Code does not extend to such accommodation and is basically confined to apartments. Most of these are in large luxury apartment buildings where there is rarely discrimination, but whose rents are beyond the means of most minority members.55 It is arguable that this judgement meant that the very group of people sought to be protected by the Act and the type of situation it sought to encompass were excluded from its operation. The phrase "self contained dwelling unit" is not necessarily clear on its face, and the court could have interpreted it so as to promote the purposes of the Act. This would not necessarily have resulted in a finding of discrimination against the appellant. But it would have allowed the issue the Act was designed to prevent, racial discrimination, to be examined.  D. Conclusion. It has been demonstrated in this chapter that the concern over the legitimacy and validity of the doctrine of jurisdictional review is not purely academic. The impact of this S4  Quoted in J. M. Evans, H. N. Janisch, D. J. Mullan & R. C. Risk, Administrative Law: Cases, Text and Materials 3rd. edn. (Toronto: Edmond Montgomery, 1989) at 545. Quoted in ibid, at 546.  95 doctrine effects the administrative process in its entirety. The cases analysed are all indicative not only of the continuing predominance of the jurisdictional questions doctrine, but, more significantly, the consequent opportunities for the imposition of judicial value judgements on the dispute immediately before the court.  Apparent  exercises in curial deference are in reality expressions of agreement or disagreement with the impugned decision, and, as exemplified in the above cases, it may simply be that human rights commissions are more likely to enjoy judicial approbation, not out of a sense of deference, but rather because they arrive at determinations that, by and large, the courts agree with.56 An aura of legitimacy is cast upon this exercise through the veneer of jurisdictional review. This is no less so because of the apparent merit of the courts approach in a particular case. What is indisputably evident from all of the above cases, but most notably in Mossop, is a judicial manipulation of the facts and law by use of the concept of jurisdictional control to arrive at the court's preferred conclusion. The effects of this on the parties concerned are obvious.  It has been further argued in this chapter that because of this scope for the imposition of judicial value preferences the real issues in a case become obfuscated. This is because they are legalised and narrowed so as to fit within the rigid and formalistic framework of jurisdictional review.  The real questions, such as spousal benefits or racial  discrimination, are thus forgotten or ignored. As such it can be argued that "doctrine is merely a useful method of putting a false patina of objectivity on the enactment of  Young, supra note 30 at 67.  96 judicial prejudices and sympathies."57 Nevertheless, it is not asserted here that either of these ramifications of jurisdictional review are the conscious result of judicial decision making. Judges do not necessarily impose deliberately their preferred value choice, and indeed may not be aware at all times that they have even made such a choice. Nor is the doctrine of jurisdictional review deliberately employed by them to disguise their particular choice in a given case. What is argued, however, is that this doctrine does allow for these preferences, even if unconsciously, to be imposed, under the guise of statutory interpretation.  Administrative law jurisprudence must extend beyond the confines of this obsession with jurisdiction.  There exists an undeniable need for a rethinking of the appropriate  relationship, and allocation of decision making functions, between the courts and specialist administrative agencies, for, at present, regardless of whether the courts have exercised 'deference' or chosen to intervene, their choice is largely reflective of the value preferences and ideologies to which they, as representatives of a particular sector of society, have been exposed. A non jurisdictional approach to the review, whether judicial or non judicial, is required, that will minimise the extent to which these ideologies will be reflected in the ultimate decision. This is not something that can be castigated as merely academic polemic, with no practical impact on the individual parties concerned. As seen above developing such an approach is essential to the operation of the administrative process as a whole, and to the eliminations of the imposition of personal 57  C. Yablon, "The Indeterminacy of the Law: Critical Legal Studies and the Problem of Legal Explanation" (1985) 6 Cardozo L.R. 917 at 932.  97 preferences, whether at the administrative or judicial level, at the expense of the individual.  In the following concluding comments it is suggested that the process by which administrative decisions are made needs to be re-evaluated, and the promotion of 'good' bureaucratic decision making achieved. It will be explained that the current system of judicial review of administrative decision making is an entirely negative discipline, in that the courts only become involved once 'something goes wrong.' Attention should be focused on promoting the positive, that is ensuring that 'things go right.'  98 CONCLUSION.  It has been asserted throughout this thesis that jurisdictional review is not an appropriate basis upon which to monitor exercises of administrative discretion and that accordingly it should be discarded as a doctrine of review. It was argued at the outset that because of the width and inherent flexibility of discretionary powers and the consequent potential for their misuse, there is demanded an external review mechanism for supervising agency decision making, aimed at curtailing bureaucratic injustice. This is essential if the rights and interests of those individuals subject to the administrative process are to be protected, and the democratic element of our constitutional framework upheld.1 The problem, however, as expounded in the introduction and examined throughout the thesis is that judicial review is not the most appropriate forum for effecting these objectives. This is the consequence of the courts' obsessive concern for defining the jurisdictional boundaries of a decision maker's grant of power.  In the first chapter the current debate over the appropriate ambit of judicial review of agency decision making was examined, and its circularity and consequent insolubility disclosed. The disagreement amongst courts and scholars over whether the courts should continue to adopt an interventionist stance or whether their role ought to be more circumscribed and the arguments preferred in favour of either position were considered. The conclusion reached was that while couched in these terms this debate is not capable  1  See Introduction above.  99 of conclusive resolution, for the arguments presented in support of either position are equally plausible and that the cause of this insolubility is the predominance within administrative law jurisprudence of the doctrine of jurisdictional review.  As exemplified by academic writings and judicial pronouncements this doctrine of jurisdictional review is indeed central to judicial review and structures the debate over the appropriate ambit of the latter. In turn, at the core of the doctrine of jurisdictional reviews lies Dicey's theory of the rule of law and the conception that language is determinate and so statutory interpretation a straightforward task that can generate only one correct answer. In the second chapter the Diceyan theory of the rule of law and these assumptions of determinacy and correctness were examined critically and ultimately discredited. In particular it was illustrated that much of Diceyan theory is premised on a misconception of the administrative state and the democratic constitutional framework that existed at the time in which Dicey conceived his theory. Likewise, the assumptions, upon which much of his work is based, that language is determinate and so statutes capable of a correct interpretation, is also misconceived. Consequently, it is concluded in this chapter that there exists no legitimate or logical basis upon which to maintain jurisdiction as the central doctrine of judicial review.  In the third chapter it was explained that this concern over the validity and legitimacy of the doctrine of jurisdictional review is not of only academic interest, but that it does have considerable practical impact on the administrative system. It was illustrated that  100 judges make value choices when reaching their decisions and that these value choices, which are reflective of their particular position within society and so are unrepresentative, impact considerably upon the manner in which the courts interpret particular statutory provisions. Jurisdictional review, because of its lack of coherence and underlying basis, serves as a veneer, allowing these value choices to be masked under the guise of statutory interpretation. It was also demonstrated that this doctrine of review culminates in the issues under examination becoming narrowed as they are legalised so as to conform to this framework of jurisdictional control and that accordingly the real issues in a dispute are obscured and so either forgotten or overlooked.  The argument underlying the entire thesis therefore is that jurisdictional review is not a useful basis upon which to monitor administrative discretionary decision making and that this does have important practical ramifications.  Consequently administrative law  jurisprudence must break away from this inhibiting doctrine and develop an alternative means of containing bureaucratic injustice. A mechanism of review is required that does not focus on such a legalistic and rigid approach and so obscure the issues in dispute. It may be through judicial or non judicial means, but it must be non jurisdictional. In these concluding remarks a few observations and suggestions on how this may be effected will be presented.  It is evident from the arguments presented throughout this thesis that a totally new and different approach to this issue is required. Namely, that the focus of attention should  101 be redirected away from negative aspects of the administrative process towards the promotion of the positive. That is rational decision making. Currently, judicial review, indeed any form of review, is concerned exclusively with the negative aspects of decision making. That is, these bodies only become involved in administrative decision making when 'something goes wrong' and so needs 'correcting.' Perhaps it would be more productive to concentrate on promoting good decisions so that the need to rectify bad ones is eliminated.2 As observed by Bouchard, "the common law can appear to be a very negative discipline, centred as it is on remedies, and on dealing with relationships that have gone sour. In continental jurisdictions, law is assumed to have a role to play in helping to achieve healthier relationships between legal actors."3  This concern with the correction of 'mistakes' and judicial review is symptomatic of the perception of administrative law as synonymous with judicial review. If this misnomer is to be addressed, a wider conception of 'administrative law' is required that takes into account the administrative system as a whole and the objectives it seeks to achieve. The administrative system is a complicated process that is polycentric. It does not just deal with one instance in isolation from the policy of the act in question or the wider ramifications of a particular decision. A decision maker must have regard to numerous such considerations in the making of a determination if the purpose of the statutory  2  M. Bouchard, "Administrative Law in the Real World: A View from Canada" in Taggart, M. ed., Judicial Review of Administrative Action in the 1980's: Problems and Perspectives (Auckland: Oxford University Press, 1986) at 180. *Ibid. 181.  102 regime is to be effected. Administrative law is not judicial review, and it is not confined to the judicial correction of administrative errors. Judicial review is only one aspect of administrative law, so that to focus exclusively on the role of the courts is to perpetuate the negative conceptions of this discipline. This does impact considerably on the administrative process for decision makers become pre-occupied with avoiding challenges to specific exercises of power which in turn discourages, for example, long range planning or the pursuit of new initiatives in the implementation of the policies and purposes underlying a particular statute.4 One example of the detrimental impact of judicial decision making that demonstrates the long term effects is that of the Canadian National Parole Board, discussed by Bouchard.5 It had been the practice of this board that not all members of its decision making panel heard the applicant. Those who did attend the hearing would make recommendations on how to decide the case and report to the entire panel, which would then render the final determination. This procedure was challenged by Mr. O'Brien who contended that only those who had heard the case could make the final determination. The court, although acknowledging the board's discretion, agreed with the applicant, holding that if a hearing was to be accorded, a factor that was in the discretion of the board, then it should be conducted by the full panel. As Bouchard concludes, [fjaced with the same financial constraints as all other government agencies, the Board changed its practice. Wherever possible under the law, parole decisions are now made solely on the basis of an examination of the file and without any member hearing the applicant. In the process 4  R. Baldwin, & C. McCrudden, Regulation and Public Law (London: Weidenfeld & Nicholson 1988).  5  Bouchard, supra note 2 at 184.  103 of trying to get a Cadillac for himself, Mr. O'Brien deprived a large number of people of a Volkswagen.6  Administrative law and administrative decision making relate to the exercise of discretion.7 The rationale underlying the conferral of discretion is to allow the decision maker to pursue broad based policy objectives in the public interest in the most effective way possible, and to promote the exercise of the stipulated objectives of a particular grant of power. It is arguable that judicial review is likewise concerned to assist in the promotion of these objectives.8  Unfortunately it became overly concerned with  breakdowns in this process. Rather than concerning itself with bad administration any mechanism of review, whether internal or external to the administration, should concentrate on promoting good administration.9 Prevention is better than cure. One such argument has been presented by Galligan.10 It is his suggestion that what should be promoted is a more effective discretionary decision making process so that the need for intervention is reduced and as a result the possibility of the inappropriate extension of review minimised. Galligan has suggested that because, as explained above, all powers are granted for a purpose a decision maker must, if he or she is to exercise that power legitimately, rationally justify the ultimate decision in terms of achieving this purpose to  6  Ibid.  7  Ibid, at 188.  8  See Introduction above.  9  Bouchard, supra note 2 at 191.  10  D. Galligan, "Judicial Review and the Textbook Writers" (1982) OJ.L.S. 257.  104 the highest degree. In order for the decision to have a rational basis a decision maker must "be able to give reasons which both explain and seek to justify" the exercise of the power.11 It is Galligan's contention that there can be no sound basis for not disclosing these reasons. Therefore, he advocates the disclosure of both the specific reasons for a particular decision as well as the general standards and principles in accordance with which that decision was reached. The disclosure of specific reasons will serve two purposes. First, it will enhance any external system of review, given that the reviewing body will be able to scrutinise more effectively, and arguably more objectively, the manner in which the decision under review was made, having regard to the reasons provided. Secondly by thereby rendering the decision maker more accountable for his or her actions it will encourage him or her "to reflect more carefully on his task, to be more diligent in identifying and specifying objects and purposes, and to take greater care in applying them to the circumstances."12 Thus there will be some assurance that decisions are made in a reasonable and intelligible manner which best achieves the purpose of the statute, and if satisfactory reasons are not provided then it will be susceptible to judicial review. The significance of the disclosure of general standards is simply that it will mean that "if established reasons are departed from, then another reason must be given. This reason must in turn be related to some other sense of purpose and policy.13 If it is not the decision will be held to be arbitrary. Galligan  11  Ibid, at 271.  12  Ibid, at 267.  13  Ibid at 272.  105 concludes that the ultimate effect of disclosure in both respects will be to promote rational decision making thereby minimising arbitrariness and bureaucratic injustice.  This suggestion does not necessarily deal with many of the problems that have been identified in this thesis. While not a complete solution in itself, it does however seek to reduce the occasions on which a decision maker will arrive at a 'bad' determination, and, more importantly, it may provide a more productive starting point to the question of the regulation of administrative discretionary powers. Certainly there are no easy answers as to what can or should be done in this area, and the question remains, despite the above discussion, of what should be done when something does go wrong. The question of how to prevent bad decision making and of how to correct it are both issues that require much further research and analysis. Perhaps the best place to start is in asking better and more productive questions. From here there may perhaps emerge a more appropriate starting point for dealing with this area of law. One such starting point may be the promotion of rational decision making.  That is ensuring the making of  bureaucratic decisions that are based on sound reasoning and promote to the optimum degree the purposes of the enabling statute. Much work however remains to be done in examining these alternative avenues.  106 BIBLIOGRAPHY BOOKS Baldwin, R. & McCrudden, C. Regulation and Public Law (London: Weidenfeld & Nicholson, 1988). Craig, P. Administrative Law 1st ed. (London: Sweet & Maxwell, 1983). -—, Administrative Law 2nd ed. (London: Sweet & Maxwell, 1989). Davis, K. C. Discretionary Justice: A Preliminary Inquiry (Baton Rouge: Louisiana State University Press, 1969). Dicey, A. V. The Law of the Constitution (London: Macmillan, 1885). Evans, J. M., Janisch, H. N., Mullan, D. J., & Risk, R. C. 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