Nov 30, 2014

Doing Reasonableness Review: Workplace Health, Safety and Compensation Commission v. Allen, 2014 NLCA 42

Workplace Health, Safety and Compensation Commission v. Allen, 2014 NLCA 42 (CanLII)

There is a fascinating review of Canadian administrative law on reasonableness in Workplace Health, Safety and Compensation Commission v. Allen, 2014 NLCA 42. A received benefits for a workplace injury. These benefits were capped at 80% of actual earnings. A then retired and was to receive benefits “equal” to the pension he would have received. The Commission sought to cap the pension at 80% as well. A took a different view but lost in the administrative process. He won, however, on judicial review; the first-instance judge and Court of Appeal both concluded that there was only one reasonable outcome, that benefits could not be capped.

Building on the Supreme Court of Canada decision in Newfoundland Nurses, the Commission argued that administrative decisions should be presumed correct. Barry J.A. rejected the suggestion that there was any presumption of correctness of administrative decisions. If anything, there is a presumption of validity that places an onus on an individual to identify some shortcoming in the decision or decision-making process:


[41] I believe resolution of a case such as the present, dependent upon ascribing a proper interpretation to a statutory provision, will occur rarely, if ever, because of reliance upon a so-called presumption of correctness. I agree that a party challenging a tribunal’s interpretation of a statutory provision will not succeed on a request for judicial intervention, without pointing to some basis, either in fact or law, for concluding the tribunal’s interpretation is unreasonable. This follows from a modern principle adopted by Rizzo, where a tribunal adopting a meaning differing from the grammatical and ordinary sense of the statutory words must point to something in the context of the Act, be it the scheme or object of the Act or the intention of Parliament possibly revealed by the language of other statutory provisions, for example, to justify the differing meaning, or where a tribunal adopting the grammatical and ordinary sense of the words must show it has eliminated other possible reasonable meanings by proper contextual analysis. So in this sense it is correct to say that Mr. Allen has an onus in the present case to point to some reason, whether stemming from the facts or the words of the statute to question the reasonableness of the tribunal’s interpretation. The applications judge concluded correctly that Mr. Allen had met this onus by establishing that the tribunal had ignored or given an unnatural meaning to the express wording of subsection 75(1).


[42] I also accept it might be correct to say that a presumption of correctness arose in the sense that, had there been two reasonable interpretations of the statutory language presented, then, because of the requirement for deference, the reasonable interpretation chosen by the tribunal would prevail, as discussed in McLean. But, as discussed above, the applications judge correctly concluded all other reasonable interpretations had to be excluded in the circumstances of this case. The requirement for deference to a tribunal does not mean that a court must ignore defective reasoning by the tribunal in arriving at its decision. As noted by the majority in Dunsmuir, at para. 48, quoting Professor Dyzenhaus, “the concept of ‘deference as respect’ requires of the courts ‘not submission but a respectful attention to the reasons offered or which could be offered in support of a decision’”. The applications judge exhibited that respectful attention in his analysis. In the present case the defective reasoning was to adopt the less-than-100% principle of compensation as justifying departure from the grammatical and ordinary meaning of the words of subsection 75(1). The trial judge correctly concluded neither statute nor case law had established this less-than-100% principle as an essential element in all cases of benefits paid. A so-called presumption of correctness does not affect this result. Simply put, the Commission has not provided sufficient justification for the interpretation it adopted. Its interpretation was not “cogent” because it did not supply a convincing explanation why its choice of meanings was reasonable.


Barry J.A. also quoted generously from my essay, Unreasonable Interpretations of Law (see paras. 67-69), contained in this volume. Although Rowe J.A. refused to endorse these paragraphs, he did endorse the discussion just cited, which paraphrases the essence of my argument.

However, he rejected my argument that statutory ambiguity should not be a pre-condition to deference. He preferred instead the view expressed by Robertson J.A. in his essay on the history of deference in Canada, “Judicial Deference to Administrative Tribunals, A Guide to 60 years of Supreme Court Jurisprudence” (the main contribution to the volume already mentioned; see para. 43):


[68] The reference in Dunsmuir to “a range of possible, acceptable outcomes” invites the question “acceptable to whom?” The answer must be to the court engaged in judicial review. For this reason I do not agree with Professor Daly’s argument that the administrative decision-maker’s determination of purpose and meaning should prevail and that there should not be judicial intervention on the basis of technical principles of statutory interpretation and perceived clarity of statutory provisions.


[69] Professor Daly argues, at page 267, that “[t]he starting point is to recognize that the gateway to deference is not the existence of ambiguity or vagueness; it is the initial delegation of interpretative authority”. But determining the extent of the authority delegated requires interpreting inherently ambiguous statutory language. That task lies with the courts, which apply the principles of statutory interpretation to identify the extent of the authority. And to identify is to circumscribe.


[70] In the present case the applications judge correctly concluded the authority of the Commission to set the amount of benefits paid is curtailed or circumscribed by the language of subsection 75(1). When properly construed, employing the appropriate contextual analysis, this language required the Commission to award a pension benefit equal to the pension lost. The Commission’s decision to employ the MAE figures in calculating the PRB was unreasonable because it either ignored the language of the Iron Workers’ Local 784 pension plan, which based the pension lost by Mr. Allen on “2% of the best three years of remuneration” and not on the MAE, or gave this language an unnatural meaning for which the Commission provided an inadequate explanation.


This, it is fair to say, represents the dominant view in Canadian administrative law. Where the statute is clear, as determined by reference to the principles of statutory interpretation, there is no room left over for deference.

In his concurrence, Rowe J.A. suggested that sometimes, clarity would be evident from the plain meaning of the statute:


[75] Justice Barry goes on to state in para. 47, “The modern approach is to accept that all language may prove ambiguous”, relying on, inter alia, McLean and Archean Resources. But not everything is complicated. Some things are plain on their face. Specious arguments can be dressed up as relevant “nuances”. And while context can be important, it is no less important to avoid “over contextualization”, such that the meaning given to words becomes unpredictable.


I trust that Canadian judges are not given to striking down interpretive decisions they do not agree with on the basis that the meaning is “plain”. They should at least engage in an intellectually rigorous application of the principles of statutory interpretation. I do not think Rowe J.A. would disagree.

Ideally, in my view, an unreasonableness analysis should start with the administrative decision, rather than the statutory text, and demonstrate why it is unreasonable; it should not begin and end with the statutory text with only a cursory reference to the decision under review. There is, happily, some sense in Barry J.A.’s reasons that this is the appropriate approach. Happily, too, A will get 100% of his pension benefits.