The Autonomy of Administration

Abstract

Justice Rosalie Abella is closely associated with deference to administrative decision-makers. I will argue that her deferential approach was multi-faceted, much more sophisticated than might typically be assumed. Justice Abella’s administrative law jurisprudence is as much about administrative autonomy as it is about judicial deference.

On one level, which I explore in Part I, Justice Abella’s jurisprudence is a jurisprudence of judicial restraint, preaching limited judicial oversight of the administrative process. This reflects the conventional way of thinking about deference in administrative law, as a doctrine requiring judicial restraint: it is a shield protecting administrative decision-makers from judicial interference. Accordingly, she supported a broad presumption of deference to administrative decision-makers and articulated a fairly non-interventionist conception of reasonableness review.

But on a deeper level, Justice Abella’s jurisprudence is more radical. As I explain in Part II, Justice Abella was not committed simply to a restrained approach to judicial review, but rather to promoting the autonomy of public administration: she furnished swords to administrative decision-makers, allowing them to carve out additional space in which to operate and articulate applied versions of legal norms.

Her commitment to administrative autonomy, rather than simply to judicial restraint, prompts reflection about the basis of Justice Abella’s administrative law philosophy, which must ultimately be grounded, I suggest in Part III, in her trust of the administrative process, aligning her with the so-called ‘functionalist’ school of thought associated with progressive thinkers. I then turn to the Supreme Court of Canada’s recent re-articulation of Canadian administrative law in the Vavilov case, a re-articulation with which Justice Abella expressed firm disagreement. I reflect on why the majority and Justice Abella diverged in Vavilov and suggest that the key features of Justice Abella’s jurisprudence – restraint and autonomy – are rooted in a mode of thinking about administrative law that has fallen out of favour.

Keywords: Rosalie Abella, deference, administrative law, judicial review, justification, Vavilov