Legislative supremacy in Canada
Judicial deference in Canada vs. judicial supremacy in the US
The Ontario Land Tribunal
Joseph Heath is a political philosopher at the University of Toronto. In a post from May 2024 on institutional differences between the US and Canada, Heath describes how New York City and San Francisco fail to build enough housing because of local opposition, and in contrast, how Ontario has set up an administrative tribunal with the power to override land-use decisions by elected city councillors.
Ontario has radically reduced the number of veto points in the construction approval process by creating an administrative tribunal with the power to make binding land use decisions. This tribunal has the power to override city council bodies, and is protected from judicial review through a privative clause.
In its current incarnation, this tribunal is known as the Ontario Land Tribunal. (Those of a wonkier inclination might be interested in checking out the enabling legislation here, paying particular attention to the privative clauses – which limit judicial review of tribunal decisions – in sections 13 and 24.) It would be difficult to overstate how entirely foreign this institution is to American political tradition, on multiple levels. The whole thing has “unconstitutional” written all over it.
The privative clauses:
13 (4) Unless the Tribunal’s failure to comply with the rules, or its exercise of discretion under the rules in a particular manner, causes a substantial wrong that affects the final disposition of a proceeding, neither the failure nor the exercise of discretion is a ground for setting aside a decision of the Tribunal on an application for judicial review or an appeal.
24 (1) Unless another Act specifies otherwise, an order or decision of the Tribunal may be appealed to the Divisional Court, with leave of that court on motion in accordance with subsection (3), but only on a question of law.
Heath describes an example from a few years ago in Toronto, where someone wanted to replace a six-plex on a double-sized lot with a 24-unit building. The initial decision from the council-appointed Committee of Adjustment was to reject it.
Undeterred by this setback, the owner (or developer) appealed this decision to the tribunal. A month or two later a decision came back from the tribunal, overruling the Committee of Adjustment and approving the project. (As local residents, we all got copies of this ruling in the mail.) I recall having been surprised at how terse their explanation was. It basically said “This building is situated within walking distance of a subway station. City plan licenses increased density near transit. Project is approved.”
Legislative supremacy
In a more recent post, Observations on the U.S. constitutional crisis, from February 2025, Heath notes that when there’s a conflict between two of the three branches of government - executive, legislative, and judicial - each of the Western democracies has come up with its own answer to the question of who wins. In Canada, there’s a tradition of legislative supremacy: Parliament wins.
Canada is governed by a norm of parliamentary supremacy, which means that regardless of what sort of question or conflict arises, ultimately any issue can be settled by a vote of parliament. This feature of our system was inherited from Britain, where legislative supremacy is a constitutional convention. (This convention was preserved in our country, in the transition to a written constitution, through the introduction of the notwithstanding clause into the Constitution Act of 1982.)
In the US, the norm is judicial supremacy, due to the risk of paralysis caused by a standoff between the directly elected President and the directly elected legislature. The problem is, to quote Heath: “Judicial supremacy has a number of pathological effects on government, including a near-complete disregard for questions of cost and efficiency.”
Privative clauses
I hadn’t heard of privative clauses before, so I looked them up. David Dyzenhaus, in Disobeying Parliament? Privative Clauses and the Rule of Law (a 2006 book chapter), describes the Canadian judicial interpretation of privative clauses as deference.
In the Supreme Court, Dickson J. was clear that judges had to take the privative clause seriously and hence should not use previously popular devices in an attempt to read it out of the statute. He emphasized that it was not only the formal expression of legislative intent in the privative clause that mattered but also the good reason for that formal expression: An administrative agency is expert within its area of law.
From Dickson’s decision:
Section 101 constitutes a clear statutory direction on the part of the Legislature that public sector labour matters be promptly and finally decided by the Board. Privative clauses of this type are usually found in labour relations legislation. The rationale for protection of a labour board’s decisions within jurisdiction is straightforward and compelling. The labour board is a specialized tribunal which administers a comprehensive statute regulating labour relations. In the administration of that regime, a board is called upon not only to find facts and decide questions of law, but also to exercise its understanding of the body of jurisprudence that has developed around the collective bargaining system, as understood in Canada, and its labour relations sense acquired from accumulated experience in the area.
Following some discussion, Dyzenhaus concludes:
The deference approach does not so much read privative clauses out of the particular statutes in which they occur as render them redundant by reading them into every statute that delegates authority to public officials. However, they are read in a way that treats them as a legislative signal to judges to alert them to what is in any case their duty – to treat administrative interpretations of the law with respect, as long as these are serious attempts to carry on the rule of law project.
Judicial deference after Vavilov (2019)
A recent decision by the Supreme Court, Vavilov (2019), sets a standard of reasonableness for judicial review of administrative decisions. From reading commentary, my understanding is that privative clauses are no longer effective.
Paul Daly, law professor at the University of Ottawa, Canadian Labour Law after Vavilov (2021):
Canada’s doctrine of deference to administrative decision-makers was built on foundations provided by labour relations arbitrators and tribunals. With Vavilov, however, those foundations have shifted. In the formative years of the Canadian law of deference, front-line labour relations decision-makers could rely on their expertise and privative clauses to provide shelter from judicial oversight. Post Vavilov, expertise must be demonstrated – it cannot be presumed – and privative clauses give no special protection to administrative decision-makers, not even in the labour relations area.
This foundational shift has serious implications for the Canadian labour relations community: there is now a de facto requirement to provide reasons for decisions; these reasons must be justified in respect of the facts and law, demonstrate the application of expertise and be responsive to the central arguments and evidence; and counsel defending decisions on judicial review cannot invoke background context which is not laid out in the reasons.
Reasonableness is a deferential standard. But the formulation of reasonableness in Vavilov is more demanding than the standard previously applied by the courts.
Daly’s assessment:
The changes wrought by Vavilov should not be overstated. Most labour relations decisions will be reviewed on a standard of reasonableness. Reasonableness remains a deferential standard: for every time the majority in Vavilov insisted that reasonableness review is “robust”, there is an equal and opposite insistence that the standard must be applied with restraint or respectfully. Decisions which are supported by coherent reasons will be upheld, as they were before; to that extent, “Vavilov does not constitute a significant change in the law of judicial review with respect to the review of the reasons of administrative tribunals”. Nonetheless, the requirements of justification, responsiveness, demonstrated expertise and contemporaneity are likely to have teeth in all contexts, including labour relations context.
Discussion of these requirements:
First, the decision must be justified in light of the legal and factual constraints on the decision-maker. As the Federal Court explained in Ortiz v. Canada (Citizenship and Immigration), whereas previously reviewing courts began with the outcome and then looked back at the reasons, Vavilov instructs them “to start with the reasons, and assess whether they justify the outcome”. A decision-maker must therefore explain how its decisions are justified, by laying out the legal framework and the relevant facts before reaching a conclusion which is intelligible in light of the law and the facts. Newfoundland Nurses is no longer good law.
Second, the decision must be the product of the demonstrated expertise of the decision-maker. Prior to Vavilov, decision-makers benefited from a thoroughgoing presumption of expertise. A decision-maker must therefore demonstrate that it has applied its expertise, by explaining how its specialized knowledge of the field leads or guides it to the conclusions underpinning its decisions.
Third, the decision must be responsive to the central points raised before the decision-maker who must, indeed, grapple with key arguments and evidence. Responsive decisions need not be lengthy. Brief explanations can satisfy the responsiveness requirement, as the Federal Court has explained on several occasions. The Alberta Court of Appeal upheld against a reasonableness challenge a labour relations decision which spent only five paragraphs addressing a key issue. But responsive decisions do need to engage with the arguments and evidence.
Four, there is now a strong requirement of contemporaneity. Reviewing courts are, consistent with the majority reasons in Vavilov, to refrain from bolstering defective administrative decisions with post-hoc reasoning supplied by the decision-maker in an affidavit, clever counsel at the lectern, or by the reviewing court itself. Reviewing courts are not to conduct a “line-by-line treasure hunt for error”, or reweigh evidence considered by the decision-maker, and should read administrative decisions “with sensitivity to the institutional setting and in light of the record”. But a reviewing court should not “fashion its own reasons in order to buttress the administrative decision”. If justification, responsiveness and demonstrated expertise are not present in the reasons given to the affected individual or parties, a court should ordinarily not permit them to be “coopered up” later on. Courts are no longer able or willing to “infer” that an argument or evidence was considered in the absence of reasons dealing with the argument or evidence.
In terms of the fault lines introduced above, the reasonableness analysis is deferential but is substantive, not formal and requires a reasoned basis for decisions.