Seven out of Nine Legal Experts Agree: Expertise No Longer Matters (in the Same Way) after Vavilov

Supreme Court Law Review, Forthcoming

13 Pages Posted: 28 Aug 2020

See all articles by Audrey Macklin

Audrey Macklin

University of Toronto - Faculty of Law

Date Written: June 20, 2020

Abstract

The author assays the rise, fall and repositioning of expertise as a basis for deference in judicial review from CUPE to Vavilov. Initially, the expertise of administrators was one justification for respecting administrative decision-makers’ readings of their enabling statutes. Then it ascended to the status of predominant justification. Eventually, the deemed expertise of administrative decision makers became an irrefutable presumption. However, the fact that some administrative actors whose decisions reached the Supreme Court of Canada were, by their own admission, incompetent in the art of statutory interpretation made this rationale increasingly implausible. Legal thinkers from across the political spectrum sought and received reform in Vavilov, which laid presumed expertise to rest as the justification for deference, but revived it at the stage of assessing whether a given interpretation was reasonable. The author argues that Vavilov endorses a form of “enlightened statutory interpretation,” in which reviewing courts are receptive and respectful toward an administrative decision-maker’s more pluralist, textured, and situated approach to ascribing meaning to legal text. According to the Vavilov, generalist courts defer on the sole basis that the legislator delegated a given task to an administrative actor. Yet, courts should no longer presume that specialized administrators know what they are doing, at least in relation to statutory interpretation. Reviewing courts are, however, encouraged to credit the wisdom of those who do. The importance of expertise resurfaces in the quality of the administrator’s reasons, which give a respectful court cause to show them deference. The author is optimistic that this approach may enrich the interpretive exercise but has reservations about the Court’s categorial exclusion of decisions subject to statutory appeal from such deference. She concludes that this exclusion risks shrinking the space for generative engagement between the judiciary and the administration, and the opportunity for richer interpretations of law along with it.

Keywords: Administrative Law, Canada, Public Law, Deference, Standard of Review, Expertise, Vavilov, Reasonableness

Suggested Citation

Macklin, Audrey, Seven out of Nine Legal Experts Agree: Expertise No Longer Matters (in the Same Way) after Vavilov (June 20, 2020). Supreme Court Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3655182 or http://dx.doi.org/10.2139/ssrn.3655182

Audrey Macklin (Contact Author)

University of Toronto - Faculty of Law ( email )

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