Edmonton East: Revisiting the Presumption of Tribunal Expertise

In November 2016 the Supreme Court issued its 5-4 decision in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd.[1] The majority, led by Justice Karakatsanis, held that the Assessment Review Board decision under appeal was subject to review for reasonableness. This was consistent with the majority ruling in Alberta Teachers [2], which established that a tribunal’s interpretation of its home statute is presumptively entitled to judicial deference. Justices Côté and Brown co-authored a strong dissent, joined by Chief Justice McLachlin and Justice Moldaver. They concluded that correctness was the appropriate standard of review.

This case comment explores one of the issues that divided the Court: the link between a tribunal’s technical expertise and judicial deference to its interpretations of its home statute. Whereas the majority attributed blanket expertise to specialized tribunals qua institutions, the minority questioned the wisdom of attributing legal expertise to statutory decision-makers willy-nilly. Since Edmonton East was issued, one member of the majority (former Justice Cromwell) has retired and been replaced. The dissent could signal the future direction of the standard of review.

Background

The case arose from a municipal tax assessment. In 2011 the City of Edmonton assessed the value of the Edmonton East shopping centre at $31 million. The mall’s owner argued that it was only worth $22 million. It complained to the City’s Assessment Review Board. While preparing for the Board hearing, the City recalculated the mall’s value at $45 million. The Board accepted the City’s revised estimate and ultimately raised the assessment from $22 million to $41 million.

The owner successfully appealed to the Court of Queen’s Bench under the statutory appeal provisions in s. 470 of the Municipal Government Act (“the Act”).[3] The Court held that the Board had overestimated its statutory power under s. 467 of the Act. It could not increase an assessment, at the behest of the City, while adjudging a taxpayer complaint. The case engaged a “true question of jurisdiction” within the meaning of Dunsmuir,[4] so the correctness standard applied.

The Court of Appeal affirmed the order setting aside the Board’s decision.[5] It agreed that correctness was the applicable standard of review, but for a different reason. The Court held that the statutory right of appeal in s. 470 of the Act “represents a recognition that while the administrative tribunal has ‘expertise’, so do the superior courts. A right of appeal is a signal that the Legislature wishes to take advantage of (and make available to affected citizens) all the expertise available in the system.”[6] Based on this reading of the Legislature’s intent, the Court of Appeal concluded that it need not defer to the Board’s interpretation of its home statute.

The Legislative Framework

The City’s appeal to the Supreme Court raised two questions of law: (1) the Board’s jurisdiction to increase an assessment, and (2) the appropriate standard of review. Both answers depended on the Court’s construction of the Act, as the Board’s enabling statute and its “home statute” within the meaning of Alberta Teachers. Identifying the proper standard of review required the Court to infer the Legislature’s intent from the appellate scheme in s. 470.

Three elements of that scheme are particularly relevant. First, “An appeal lies to the Court of Queen’s Bench on a question of law or jurisdiction with respect to a decision of an assessment review board.” (470(1))  Second, the right of appeal is not automatic; leave must be granted by a judge of the Court (470(3)). Finally, the judge hearing the application may only grant leave where “the appeal involves a question of law or jurisdiction of sufficient importance to merit an appeal and has a reasonable chance of success.” (470(5); emphasis added) In concert, these provisions establish a limited right of appeal on important legal questions, along with a mechanism to screen out fact-based or frivolous appeals.

Alberta Teachers: The Home Statute and the Presumption of Reasonableness

The majority saw no difficulty in finding that reasonableness was the presumptive standard of review (paras 22-23). In raising the assessed value of the mall, the Board had implicitly adopted a broad interpretation of s. 467. The Board’s understanding of its own jurisdiction was entitled to judicial deference unless the City could rebut the presumption of reasonableness.[7] As former Justice Cromwell wrote in his Alberta Teachers dissent, “the fact that a legislative provision is in a ‘home statute’ has become a virtually unchallengeable proxy for legislative intent”[8] – specifically, the intent to give a tribunal the final word on questions of fact or law within its sphere of expertise.

 The Edmonton East dissenters did not explicitly attack Alberta Teachers. But they dropped an intriguing hint of skepticism (at para 66, emphasis added): “even were the Board’s interpretation presumptively owed deference on the basis that the Board is interpreting its home statute, this presumption of deference has been rebutted by clear signals of legislative intent.” This dictum seems to go beyond the question of whether or not the presumption of reasonableness is overcome in this case. It suggests that the presumption itself is open for reconsideration.

Legislative Intent and the Relative Expertise of Courts and Tribunals

The majority had no such qualms about Alberta Teachers. Justice Karakatsanis wrote (at para 22) that “This presumption of deference on judicial review respects the principle of legislative supremacy and the choice made to delegate decision making to a tribunal, rather than the courts. A presumption of deference on judicial review also fosters access to justice to the extent [that] the legislative choice to delegate a matter to a flexible and expert tribunal provides parties with a speedier and less expensive form of decision making.” Hence the presumption of reasonableness flows from “the legislature’s choice to give a specialized tribunal responsibility for administering the statutory provisions” (at para 33).

Legislative choice is not the only basis for deference, according to Justice Karakatsanis. Courts should also defer because of “the expertise of the tribunal” in applying its home statute (at para 33). She attributed this expertise to the specialized functions of tribunals and their “habitual familiarity with the legislative scheme they administer”. She noted that “Expertise may also arise where legislation requires that members of a given tribunal possess certain qualifications.” But she added that “as with judges, expertise is not a matter of the qualifications or experience of any particular tribunal member. Rather, expertise is something that inheres in a tribunal itself as an institution” (at para 33; emphasis added).

After a cursory analysis, the majority found that the presumption of reasonableness was not rebutted. The Board decision did not fall within any of the four Dunsmuir categories of correctness. Nor did the context suggest that “the legislature intended the standard of review to be correctness” (at para 32). The majority held that the Court of Appeal had erred in applying the correctness standard and restored the Board’s decision to increase the tax assessment.

The dissenters agreed with the majority about the grounds for the Alberta Teachers rule. But they challenged the sweeping assertion that the mere existence of a specialized tribunal imposes a requirement of deference. After all, legislators may choose to create “a non-expert administrative decision maker” or one “with expertise in some areas but not others” (at para 85). A reviewing court must examine the enabling statute to determine whether or not “the expertise of an administrative decision maker in interpreting and administering its home statute is [or is deemed to be] … greater relative to the courts” (at para 84). The question in each case is “whether the legislative intent was to recognize the superior expertise of the [tribunal] or the courts” in relation to the subject-matter of the decision at issue (at para 85).

The dissenters also challenged the presumption that a tribunal’s interpretations of its home statute are entitled to deference because of its subject-matter expertise. This part of the reasons is not entirely clear, because the authors did not distinguish between the presumption of reasonableness and the presumption of expertise. But the key passage (at paras 82-83) seems to refer to the latter:

We acknowledge that the notion of ‘expertise’ has become a catch-all trigger for deferential review in this Court’s jurisprudence, since an administrative decision maker is simply presumed to be an expert in matters regarding the application of its home statute. We wish, therefore, to be clear: our point of departure from the majority is whether the presumption has been rebutted. And we add this: in strengthening the presumption by ignoring or explaining away any factors that might rebut it, the majority risks making this presumption irrebuttable. Despite its prevalence, this presumption of expertise has rarely been given much explanation or content in our jurisprudence… (Emphasis added)

As this passage indicates, the minority took issue with the majority’s claim that “expertise is something that inheres in a tribunal itself as an institution”. Justices Côté and Brown advanced two contrary propositions about the presumption of expertise.

• First, “an administrative decision maker is not entitled to blanket deference in all matters simply because it is an expert in some matters. An administrative decision maker is entitled to deference on the basis of expertise only if the question before it falls within the scope of its expertise, whether specific or institutional” (at para 83).
   
• Second, tribunal expertise should be understood as relative rather than absolute (at para 84). The dissent cites several rulings – most issued pre-Dunsmuir – in which the Court held that a tribunal’s competence in handling legal issues should be assessed in comparison to courts, rather than presumed. The minority approvingly reproduced the following dictum from 1993: “a lack of relative expertise on the part of the tribunal vis-à-vis the particular issue before it as compared with the reviewing court is a ground for a refusal of deference”.[9] They added (at para 86) that “We cannot presume greater relative expertise without first examining the statutory scheme that creates the administrative decision maker.”

Justices Côté and Brown opined (at para 81) that “the question at issue is not one which falls within the Board’s expertise. Indeed, the Board’s lack of expertise in statutory interpretation suggests that the legislature would have wanted courts to review Board answers on questions of law on a more exacting standard.” No evidence was provided to support the claim about the Board’s lack of legal expertise – which, despite the earlier definition of expertise as a relative concept, is expressed in absolute terms.

The minority asked (at para 87) “whether the Alberta legislature intended to recognize superior expertise in assessment review boards or in the courts with respect to the specific questions appealed pursuant to s. 470 of the Act.” They concluded that “Statutory interpretation does not fall within the specialized expertise of the Board, since its day-to-day work focuses on complex matters of valuation of property.” The question at issue in this case was “one of legal interpretation going to jurisdiction”, where courts have greater relative expertise, as opposed to “practical application” where the Board’s specialized knowledge should prevail.

The minority wrote (at para 87) that “While the Board may have familiarity with the application of the assessment provisions of the Act, the legislature has recognized that the Board’s specialized expertise does not necessarily extend to general questions of law and jurisdiction. The Board’s decisions may, instead, be appealed on these questions of law and jurisdiction.” Justices Côté and Brown concluded that “Such clearly expressed legislative intent should be respected, by applying correctness review in this case” (at para 88).

Conclusion

Some lawyers and judges might regard Edmonton East as an unhelpful gloss on an unduly confusing body of law.[10] Others may welcome the dissenters’ challenge to the ironclad “presumption of expertise”. For example, the Divisional Court has set aside some recent decisions of professional discipline tribunals for fundamental errors of law. Some arose from the tribunal’s interpretation of its home statute or related acts.[11] Others involved the handling of viva voce evidence in “he-said, she-said” cases involving the alleged sexual abuse of patients by health professionals.[12] Statutory interpretation is a basic judicial function. Superior Court judges routinely assess the credibility and reliability of witnesses who testify before them. Why should courts, with their specialized expertise in these legal matters, defer to administrative tribunals just because a “home statute” is engaged?

Whatever one’s position on the standard of review, it is difficult to argue with paragraph 35 of the majority opinion:

The contextual approach can generate uncertainty and endless litigation concerning the standard of review. Subject to constitutional constraints, the legislature can specify the applicable standard of review. ... Unfortunately, clear legislative guidance on the standard of review is not common.

One can only hope that Parliament and the legislatures are listening.