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Statutory Interpretation - Administrative Decision-Makers. Canada (Attorney General) v. Ibrahim
In Canada (Attorney General) v. Ibrahim (Fed CA, 2023) the Federal Court of Appeal considered a Crown JR of a decision by the Social Security Tribunal (Appeal Division) that upheld the respondent's eligibility for a CPP-disability pension.
In this quote the court considers the duty of an administrative tribunal member when deciding issues of statutory interpretation:[15] Administrative decision-makers are not required to engage in a formalistic statutory interpretation exercise or engage the same array of legal techniques that might be expected of a lawyer or judge. Nonetheless, the interpretation of the statutory provision must be consistent with the text, context and purpose of the provision (Vavilov at paras. 119-120; Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 at para. 69 [Mason]). . Mason v. Canada (Citizenship and Immigration)
In Mason v. Canada (Citizenship and Immigration) (SCC, 2023) the Supreme Court of Canada considers the principles of administrative statutory interpretation after Vavilov, with a caution to have regard to the "potentially harsh consequences" that may be caused "for a large class of individuals" ['responsive justification']:2. The Principles of Statutory Interpretation
[68] As already noted, a court evaluating the reasonableness of an administrative decision on a question of statutory interpretation “does not undertake a de novo analysis of the question or ‘ask itself what the correct decision would have been’” (para. 116). Instead, the court “must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached” (para. 116).
[69] Although an administrative decision maker need not “engage in a formalistic statutory interpretation exercise in every case” (para. 119), its decision must be consistent with the “modern principle” of statutory interpretation, which focusses on the text, context, and purpose of the statutory provision. The decision maker must demonstrate in its reasons that it was alive to those essential elements (para. 120). The omission of a minor aspect of the text, context, or purpose is unlikely to undermine the decision as a whole: omissions are not “stand-alone grounds for judicial intervention” (para. 122). In each case, “the key question is whether the omitted aspect of the analysis causes the reviewing court to lose confidence in the outcome reached by the decision maker” (para. 122). For example, an administrative interpretation may well be unreasonable if it fails to consider the potentially harsh consequences of its interpretation of a statutory provision for a large class of individuals, and whether, in light of those consequences, the legislature would have intended the provision to apply in that way (paras. 191-92). And even if a decision does not explicitly consider the meaning of a relevant provision, the court may be able to discern the interpretation adopted from the record and evaluate whether it is reasonable (para. 123).
[70] In interpreting a statute, an administrative decision maker may draw on its institutional expertise and experience and rely on considerations that a court would not have thought to employ, but which “enrich and elevate the interpretive exercise” (paras. 93 and 119; Canada Post, at para. 43). As Professor Audrey Macklin explains, courts should be “genuinely receptive to input beyond the usual techniques that courts use to discern text, context and purpose. These may include operational implications, alignment with broader statutory mandate, and so on” (“Seven Out of Nine Legal Experts Agree: Expertise No Longer Matters (in the Same Way) After Vavilov!” (2021), 100 S.C.L.R. (2d) 249, at p. 261). By being receptive to such factors, courts acknowledge that administrative decision makers have a role to play in elaborating the content of the schemes that they administer (Vavilov, at para. 108). Reasonableness review demands both that administrative decision makers demonstrate their expertise through their reasons and that judges pay “[r]espectful attention” to the ways in which their reasons reflect that expertise (para. 93; P. Daly, “Vavilov and the Culture of Justification in Contemporary Administrative Law” (2021), 100 S.C.L.R. (2d) 279, at pp. 285‑86).
[71] Finally, a court may conclude during a reasonableness review that “the interplay of text, context and purpose leaves room for a single reasonable interpretation of the statutory provision, or aspect of the statutory provision” (Vavilov, at para. 124, citing Dunsmuir, at paras. 72‑76, and Nova Tube Inc./Nova Steel Inc. v. Conares Metal Supply Ltd., 2019 FCA 52). In such a case, although a court should “generally pause before definitively pronouncing upon the interpretation” of a statutory provision, the court may conclude that remitting the question to the administrative decision maker may serve no useful purpose (Vavilov, at para. 124). It must be stressed that the possibility of a single reasonable interpretation is not a starting point of reasonableness review, as this would be contrary to a “reasons first” approach. Rather, it is a conclusion that a reviewing court may draw as a result of a proper reasonableness review, as part of the court’s consideration of the appropriate remedy.
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7. The Potential Impact of the Decision on the Affected Individual
[76] Vavilov also explained that “[w]here the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes” (para. 133). The principle of “responsive justification” means that if a decision has “particularly harsh consequences for the affected individual”, then “the decision maker must explain why its decision best reflects the legislature’s intention” (para. 133). An administrative decision may be unreasonable if it fails to grapple with particularly severe or harsh consequences for the affected individual (para. 134). An administrative decision maker’s reasons must “demonstrate that they have considered the consequences of a decision and that those consequences are justified in light of the facts and law” (para. 135).
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[81] In reviewing the IAD’s reasons, I recall this Court’s instruction in Vavilov that a reviewing court should conduct reasonableness review mindful of the impact of the decision on the affected individual. The principle of “responsive justification” means that “[w]here the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes” (para. 133). Here, the interpretation of s. 34(1)(e) will affect whether two individuals — one of whom has not been convicted of a criminal offence — could be deported from Canada. As this Court has noted, individuals facing deportation may experience “any number of serious life-changing consequences”, including dislocation or permanent separation from their family (R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 72, per Wagner J. (as he then was), dissenting). The IAD’s reasons must reflect these stakes. . City of Toronto v WSIAT and Beebeejaun
In City of Toronto v WSIAT and Beebeejaun (Div Court, 2023) the Divisional Court commented on statutory interpretation in administrative law:[12] Tribunals are bound by principles of statutory interpretation, that “the words of a statute must be read ‘in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament:” Rizzo & Rizzo Shoes (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27. . Nash v. Aviva General Insurance Company
In Nash v. Aviva General Insurance Company (Div Court, 2022) the Divisional Court stated the statutory interpretation 'duty' owed by administrative tribunals:[28] The ‘modern approach’ to statutory interpretation is set out in Vavilov, at paragraphs 117-124, where the Court stated that a court or tribunal must interpret a statutory provision by reading the words of the statute in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament (see also: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, both quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87).
[29] As explained in Vavilov, administrative decision makers are not required to engage in a formalistic statutory interpretation exercise in every case. The specialized expertise and experience of administrative decision makers may sometimes lead them to rely, in interpreting a provision, on considerations that a court would not have thought to employ but that enrich and elevate the interpretive exercise. However, where the meaning of a statutory provision is disputed in administrative proceedings, the decision maker must demonstrate in its reasons that it was alive to these essential elements of statutory interpretation. It cannot adopt an interpretation it knows to be inferior — albeit plausible — merely because the interpretation in question appears to be available and is expedient. The decision maker’s responsibility is to discern meaning and legislative intent, not to “reverse-engineer” a desired outcome. . Canada (Citizenship and Immigration) v. Galindo Camayo
In Canada (Citizenship and Immigration) v. Galindo Camayo (Fed CA, 2022) the Federal Court of Appeal considers statutory interpretation in an administraive context:[52] Where, as here, the administrative decision maker has to deal with issues of statutory interpretation, certain additional considerations must be kept in mind by both the administrative decision maker and the reviewing court.
[53] First, the administrative decision maker must deal with any statutory interpretation issues by examining the text, context and purpose of the relevant provisions. Its analysis need not be the sort of formalistic statutory interpretation exercise that a court would perform: Vavilov SCC, above at paras. 92 and 119; Canada (Minister of Citizenship and Immigration) v. Mason, 2021 FCA 156 at para. 39. Due allowance must be made for the fact that Parliament has given the responsibility to interpret the statutory provisions to an administrative decision maker, not a court, and certainly not to the reviewing court.
[54] Second, in conducting reasonableness review, a reviewing court must be on guard not to engage in what is called "“disguised correctness”" review. It should not interpret the statutory provision itself and then use its own interpretation as a yardstick to measure the interpretation reached by the administrative decision maker: Delios, above at para. 28; Mason, above at para. 12. Reviewing courts can adopt specific techniques to avoid doing this: Mason, above at paras. 15-20, citing Hillier v. Canada (Attorney General), 2019 FCA 44 at paras. 13-17.
[55] Third, largely in pre-Vavilov jurisprudence, the Federal Court has offered interpretations of section 108 that shed light on when cessation under section 108 will be warranted. While in some cases, decisions of the Federal Court disagree with each other, it must again be remembered that under Vavilov, the Federal Court is not the body that interprets section 108. Rather, it is restricted to the role of a reviewing court.
[56] Nevertheless, the leading interpretations of section 108 offered by the Federal Court that are relevant to the case at hand should be considered and assessed by the RPD, with supporting reasoning. As a general matter, judicial interpretations of statutory provisions bind the RPD unless the RPD can distinguish them or explain why a departure from them is warranted.
[57] In the end result, in cases where the administrative decision maker has to consider the proper meaning of a statutory provision, the reviewing court must be satisfied that the administrative decision maker is "“alive [either implicitly or explicitly] to [the] essential elements”" of text, context and purpose and has touched on at least “"the most salient aspects of the text, context [and] purpose”": Vavilov SCC, above at paras. 120-122; Mason, above at para. 42. . Canada (Minister of Citizenship and Immigration) v. Vavilov
In Canada (Minister of Citizenship and Immigration) v. Vavilov (SCC, 2019) the Supreme Court of Canada revised fundamentally the Canadian law of standard of review in judicial reviews, and in the course of doing that expressed themselves on statutory interpretation in the context of administrative proceedings ["text, context or purpose"] as follows:(c) Principles of Statutory Interpretation
[115] Matters of statutory interpretation are not treated uniquely and, as with other questions of law, may be evaluated on a reasonableness standard. Although the general approach to reasonableness review described above applies in such cases, we recognize that it is necessary to provide additional guidance to reviewing courts on this point. This is because reviewing courts are accustomed to resolving questions of statutory interpretation in a context in which the issue is before them at first instance or on appeal, and where they are expected to perform their own independent analysis and come to their own conclusions.
[116] Reasonableness review functions differently. Where reasonableness is the applicable standard on a question of statutory interpretation, the reviewing court does not undertake a de novo analysis of the question or “ask itself what the correct decision would have been”: Ryan, at para. 50. Instead, just as it does when applying the reasonableness standard in reviewing questions of fact, discretion or policy, the court must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached.
[117] A court interpreting a statutory provision does so by applying the “modern principle” of statutory interpretation, that is, that the words of a statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 (CanLII), [2002] 2 S.C.R. 559, at para. 26, both quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. Parliament and the provincial legislatures have also provided guidance by way of statutory rules that explicitly govern the interpretation of statutes and regulations: see, e.g., Interpretation Act, R.S.C. 1985, c. I-21.
[118] This Court has adopted the “modern principle” as the proper approach to statutory interpretation, because legislative intent can be understood only by reading the language chosen by the legislature in light of the purpose of the provision and the entire relevant context: Sullivan, at pp. 7-8. Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose, regardless of whether the entity tasked with interpreting the law is a court or an administrative decision maker. An approach to reasonableness review that respects legislative intent must therefore assume that those who interpret the law — whether courts or administrative decision makers — will do so in a manner consistent with this principle of interpretation.
[119] Administrative decision makers are not required to engage in a formalistic statutory interpretation exercise in every case. As discussed above, formal reasons for a decision will not always be necessary and may, where required, take different forms. And even where the interpretive exercise conducted by the administrative decision maker is set out in written reasons, it may look quite different from that of a court. The specialized expertise and experience of administrative decision makers may sometimes lead them to rely, in interpreting a provision, on considerations that a court would not have thought to employ but that actually enrich and elevate the interpretive exercise.
[120] But whatever form the interpretive exercise takes, the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision. In this sense, the usual principles of statutory interpretation apply equally when an administrative decision maker interprets a provision. Where, for example, the words used are “precise and unequivocal”, their ordinary meaning will usually play a more significant role in the interpretive exercise: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54 (CanLII), [2005] 2 S.C.R. 601, at para. 10. Where the meaning of a statutory provision is disputed in administrative proceedings, the decision maker must demonstrate in its reasons that it was alive to these essential elements.
[121] The administrative decision maker’s task is to interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue. It cannot adopt an interpretation it knows to be inferior — albeit plausible — merely because the interpretation in question appears to be available and is expedient. The decision maker’s responsibility is to discern meaning and legislative intent, not to “reverse-engineer” a desired outcome.
[122] It can happen that an administrative decision maker, in interpreting a statutory provision, fails entirely to consider a pertinent aspect of its text, context or purpose. Where such an omission is a minor aspect of the interpretive context, it is not likely to undermine the decision as a whole. It is well established that decision makers are not required “to explicitly address all possible shades of meaning” of a given provision: Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65 (CanLII), [2012] 3 S.C.R. 405, at para. 3. Just like judges, administrative decision makers may find it unnecessary to dwell on each and every signal of statutory intent in their reasons. In many cases, it may be necessary to touch upon only the most salient aspects of the text, context or purpose. If, however, it is clear that the administrative decision maker may well, had it considered a key element of a statutory provision’s text, context or purpose, have arrived at a different result, its failure to consider that element would be indefensible, and unreasonable in the circumstances. Like other aspects of reasonableness review, omissions are not stand-alone grounds for judicial intervention: the key question is whether the omitted aspect of the analysis causes the reviewing court to lose confidence in the outcome reached by the decision maker.
[123] There may be other cases in which the administrative decision maker has not explicitly considered the meaning of a relevant provision in its reasons, but the reviewing court is able to discern the interpretation adopted by the decision maker from the record and determine whether that interpretation is reasonable.
[124] Finally, even though the task of a court conducting a reasonableness review is not to perform a de novo analysis or to determine the “correct” interpretation of a disputed provision, it may sometimes become clear in the course of reviewing a decision that the interplay of text, context and purpose leaves room for a single reasonable interpretation of the statutory provision, or aspect of the statutory provision, that is at issue: Dunsmuir, at paras. 72-76. One case in which this conclusion was reached was Nova Tube Inc./Nova Steel Inc. v. Conares Metal Supply Ltd., 2019 FCA 52 (CanLII)., in which Laskin J.A., after analyzing the reasoning of the administrative decision maker (at paras. 26-61 (CanLII)), held that the decision maker’s interpretation had been unreasonable, and, furthermore, that the factors he had considered in his analysis weighed so overwhelmingly in favour of the opposite interpretation that that was the only reasonable interpretation of the provision: para. 61. As discussed below, it would serve no useful purpose in such a case to remit the interpretative question to the original decision maker. Even so, a court should generally pause before definitively pronouncing upon the interpretation of a provision entrusted to an administrative decision maker.
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