When the decisions of administrative tribunals are being reviewed by Courts, the first and most basic question is whether the tribunal’s decision must be “correct” or merely “reasonable”? The answer to that requires a complex legal analysis which is lost on most people, many lawyers and even some courts. That may sound disrespectful of Courts but, in fact, even courts can get it wrong and the Supreme Court of Canada is about to consider whether the Alberta Court of Appeal got it wrong in a case the Court of Appeal has described as a “cri de coeur”.
On February 27, 2015, the Alberta Court of Appeal concurrently released two decisions which could fundamentally alter administrative law in Alberta with respect to the standard of deference to be shown by superior courts to the decisions of administrative tribunals and imposing a duty on such tribunals to render consistent decisions. These two cases impose substantially different standards of decision making than administrative tribunals were previously required to meet.
While both decisions were handed down in respect of decisions of assessment review boards, the analysis is applicable to any administrative tribunal.
Altus Group Limited v Calgary (City) 2015 ABCA 86 (“Altus“)
This case specifically considers the relationship of stare decisis (i.e., “what has been decided before will be decided again” or “precedent”) and the standard of reasonableness. At paragraph 16 the Court reviews the case law affirming that administrative tribunals are not bound by prior decisions; i.e., that they are not bound by ‘precedent’ so that the principle of stare decisis does not apply.
But, commencing at paragraph 17, the Court analyses why “prior decisions provide important context to the analysis…[of an issue]”. The point being that “Consistent rules and decisions are fundamental to the rule of law.” In short, while tribunals are not bound by prior decisions, inconsistent decisions do not result in the rule of law because everyone is to be treated equally under the law. Random decisions mean people are subject to statistical chance not consistent treatment.
Similarly, while in theory reasonable decisions can encompass inconsistent decisions (even diametrically opposed decisions?), the Court observed at paragraph 23 that:
The Court concluded (paragraph 31):Canadian Courts and commentators have noted the difficulty in accepting two conflicting interpretations by the same administrative tribunal as reasonable. In the context of a public statute, the rule of law and the boundaries of administrative discretion arguably cannot be served in the face of arbitrary, opposite interpretations of the law.
Edmonton East (Capilano) Shopping Centres Limited v. Edmonton (City) 2015 ABCA 85 (“Capilano“)In assessing the reasonableness of statutory interpretation by the administrative tribunal, the appellate court should have regard to previous precedent supporting a conflicting interpretation and consider whether both interpretations can reasonably stand together under principles of statutory interpretation and the rule of law.
This case is important to administrative tribunals because it considered the criteria indicating whether it was the Legislature’s intention that the board in question was required to interpret statutes “correctly” or only “reasonably.” The difference is that when administrative tribunals must interpret statutes “correctly,” there is only one correct interpretation. A statute or bylaw may be capable of a number or “reasonable” interpretations but only one “correct” interpretation.
Whether the tribunal’s decision must be “correct” or merely “reasonable” depends on the analysis of a number of criteria. The Court noted that the list of criteria is not intended to be exhaustive but included the following:
1.The presence of a statutory right of appeal may not invariably signal a correctness standard of review, but it is clearly enough to displace any presumption that reasonableness will apply. [para. 24]
2.Where both the property owner and the municipality can appeal decisions of the tribunal and if, where a matter is sent back to the tribunal, then the tribunal must decide the matter as directed, that is an indication that a correctness standard of interpretation applies. [para. 26]
3.Where one of the standards on an appeal is that the appeal must be of sufficient importance to merit an appeal, then it is apparent the Legislature intends that the matter be of significance to the legal system as a whole so that a correctness standard should apply. [para 27]
4.Statutory interpretation is not a core expertise of tribunals. Therefore, deference to statutory interpretations by tribunals does not apply so that a correctness standard applies. [para 28]
5.Matters of taxation – which criterion obviously does not apply to planning – are entitled to be determined correctly. [para 29]
6.Where there is an administrative regime involving multiple tribunals (panels), it is undesirable that a statute has one meaning in one part of the Province and another meaning in another part. There should be consistency in interpretation and result. [para 30]
The “polar star” of the analysis is to determine the intent of the Legislature when it adopted the relevant legislation; i.e., was it the Legislature’s intent that the tribunal must correctly interpret legislation or merely come to a reasonable interpretation.
While, for example, planning tribunals such as subdivision and development appeal boards and the Municipal Government Board do not meet all of the foregoing criteria, they clearly meet four and arguably meet five of the criteria. Consequently, in matters of statutory interpretation, it is probable that planning tribunals must meet the standard of “correctness.”
The Capilano decision has been appealed to the Supreme Court of Canada, and leave has been granted.