100 Not Out: Clawbies Nominations

Since starting in May, I have now reached the 100 post mark. I am not gloating! In fact, I would not even mark the occasion were it not for the fact that the Clawbies nominations are due in by, well, today.

Karim Renno has very graciously nominated me. So I won't have to cause an unseemly scene by nominating myself...Thanks, Karim!

In my nominations, I'm going to focus on student contributions to the blogosphere. No particular reason for the focus, it just makes it easier to whittle down the field of contenders!

1. Faits et Causes: I enjoy this French-language blog, which features law students writing on current affairs from a legal perspective. Always interesting, always current, and always a great way to improve your French...

2. The Court.ca: Great commentary on Supreme Court of Canada and other interesting Canadian decisions. Maybe it's just me, but I think they have been casting the net a bit wider this year, which is great: sometimes the SCC gets too much attention. Gets a bit quiet around exam time though...

3. Blogue du CRL: OK, not exactly students, but they were not so long ago: this is the blog of Montreal's Young Lawyers' Association. They now do a frivolous Friday series, which I enjoy as much as Karim's Dimanches rétro...
 

Statistical Evidence and Bias

I have posted previously about Sean Rehaag's empirical analysis of immigration decisions. He also authored an analysis of refugee claim data for 2011:

Data obtained from the Immigration and Refugee Board (IRB) through an Access to Information Request reveals vast disparities in refugee claim recognition rates across IRB Members in 2011.

In 2011, some Members very rarely granted refugee status, including Daniel McSweeney (0%, 127 decisions) and David McBean (1.9%, 108 decisions). Others granted refugee status in most of the cases they heard, including Thomas Pinkney (98.0%, 799 decisions) and Deborah Morrish (97.9%, 366 decisions).

This report was relied on by the applicants in Turoczi v. Canada (Citizenship and Immigration), 2012 FC 1423. Member McBean had refused their refugee claim. They argued, based on Rehaag's statistical analysis, that the rate at which Member McBean granted refugee claims raised a reasonable apprehension of bias: a fair-minded observer would not conclude that the decision-maker had decided the case fairly.

Zinn J. rejected the application. Without more, the statistics did not satisfy the test for bias:

[13]           Quite simply, the statistics provided by the applicants are not, without more, sufficiently informative.  Furthermore, one must question what the “informed person” would take from them.

[14]           The applicants submit, and this is the true focus of their submission, that the acceptance and rejection rate data, standing alone, is such that “one must be wilfully blind not to see that there exists a reasonable apprehension of bias” on the Member’s part.  This ignores or overlooks that the acceptance and rejection rate alone says nothing to the “informed person” even if the uninformed person might reach the conclusion that the applicants suggest.

[15]           Although the statistical data presented by the applicants may raise an eyebrow for some, the informed reasonable person, thinking the matter through, would demand to know much more, including:

•                     Were all of the figures, including, importantly, the weighted country origin averages, properly compiled?

•                     Did the RPD randomly assign cases within each country of origin?  If not, how did the RPD assign cases?

•                     Can factors affecting the randomness of case assignment be reliably adjusted for statistically?

•                     If so, what are the adjusted statistics, and what is their significance?

•                     If the RPD did randomly assign cases, what is the statistical significance of the Member’s rejection rate?

•                     Beyond the Member’s relative performance within the RPD, is there anything objective impugning the Member’s decisions (i.e. that suggests they are wrongly decided)?

•                     Accounting for appropriate factors (if that is possible), are the Member’s decisions more frequently quashed on judicial review than would be expected?

•                     Has the Member made recurring errors of a certain type, e.g. on credibility, state protection, etc., that bear a semblance to the impugned decision?

In short, the informed reasonable person, thinking the matter through, would demand a statistical analysis of this data by an expert based upon and having taken into consideration all of the various factors and circumstances that are unique to and impact on determinations of refugee claims before he or she would think it more likely than not that the decision-maker would not render a fair decision

Zinn J. did not shut the door entirely on the possibility that statistical evidence could assist an applicant in a future case. Analysis, rather than assertion, would be necessary. It will be interesting to see whether a future applicant engages a statistician to perform (and explain) a regression analysis of the type suggested by Zinn J. 

There might, in addition, be better cases in which to make arguments based on statistics. As Zinn J. observed, the present case was straightforward:

[18]           The applicants make no attempt to impugn the Member’s decision on their application.  It did not involve the exercise of discretion on his part.  The applicants claimed refugee protection fearing Ms. Karpati’s violent former boyfriend, who could not accept that their relationship was over and that a new one with Mr. Turoczi had begun.  The Member determined that the applicants had a suitable internal flight alternative (IFA) in Budapest, which is 200 kilometres away from the applicants’ home town, and that they had not rebutted the presumption of state protection.  These findings were straightforward applications of binding legal authorities and the relevant burden of proof.  In my view, the fact that the Member was practically obliged, in light of the relevant law and the burden of proof, to decide as he did, is another factor that a reasonable and informed person, examining the issue thoughtfully, would consider.  Indeed, in the instant case, there is every likelihood that an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that there was very little likelihood that any member would have decided the claim differently. 

Similar questions have been raised in Ireland. In Nyembo v. Refugee Appeals Tribunal, 2007 IESC 25, the applicant was permitted by the Supreme Court to make an argument based on statistics which demonstrated an elevated rate of refusal, but the case settled before the judicial review concluded.

I am not aware of any case in which a statistical argument based on elevated refusal rates have been successful. If I have missed one, please let me know.

Procedural Fairness in Extradition

The Supreme Court of Canada decided two interesting terrorism cases last Friday. R. v. Khawaja, 2012 SCC 69 has been grabbing most of the headlines because the Court upheld (though narrowly defined) anti-terrorism offences enacted shortly after 9/11. There were constitutional issues in the companion case of Sriskandarajah v. United States of America, 2012 SCC 70 as well, because the Court was asked to overrule one of its extradition precedents, Cotroni.

I want to focus, though, on the administrative law challenges addressed in Sriskandarajah. In particular, I want to question the Court's conclusion that there had been no breach of the appellants' rights to procedural fairness.

Not to say I told you so

But, I told you so. In my piece on the Supreme Court of Canada's copyright pentalogy (to appear next year in Michael Geist's edited collection), I predicted that the concurrent jurisdiction innovation would cause confusion.

Sure enough, counsel for the losing party in Pastore v. Aviva Canada Inc., 2012 ONCA 887 made an application for the Ontario Court of Appeal to re-open the case, on the basis that account had not been taken of the concurrent jurisdiction innovation (which appeared after the close of argument in Pastore and before the release of the ONCA's reasons).

Lost in Translation

I have posted previously about the Supreme Court of Canada's decision in Doré v. Barreau du Québec, 2012 SCC 12. It is a very important decision about the importance of Charter rights in administrative decision-making and judicial review. But there seems to be a difference between the French and English versions of the decision, written in English by Justice Abella.

The Irish Supreme Court on the Right to Reasons in Administrative Law

In his judgment in Meadows v. Minister for Justice, [2010] IESC 3, Murray C.J. suggested that a general right to reasons for administrative decisions should be recognized in Irish law. In its decision last week in Mallak v. Minister for Justice, [2012] IESC 59, the Irish Supreme Court did not quite go that far, but its observations on the issue are far-reaching and important. Unfortunately, its observations are also somewhat muddled.

Interpreting Regulations -- Kevin Stack

Kevin Stack has posted Interpreting Regulations on SSRN. Here is the abstract:

The age of statutes has given way to an era of regulations, but our jurisprudence has fallen behind. Despite the centrality of regulations to law, courts have no intelligible approach to regulatory interpretation. The neglect of regulatory interpretation is not only a shortcoming in interpretive theory but also a practical problem for administrative law. Canonical doctrines of administrative law — Chevron, Seminole Rock/Auer, and Accardi — involve interpreting regulations, and yet courts lack a consistent approach.

This Article develops a method for interpreting regulations and, more generally, situates regulatory interpretation within debates over legal interpretation. It argues that a purposive approach, not a textualist one, best suits the distinctive legal character of regulations. Administrative law requires agencies to produce detailed explanations of the grounds for their regulations, called statements of basis and purpose. Courts routinely use these statements to assess the validity of regulations. This Article argues that these statements should guide judicial interpretation of regulations as well. By relying on these statements as privileged sources for interpretation, courts not only grant deference to agencies but also treat these statements as creating commitments with respect to a regulation’s meaning. This approach justifies a framework for interpreting regulations under Chevron, Seminole Rock/Auer, and Accardi that is consistent with the deferential grounding of these doctrines, and provides more notice to those regulated than does relying on the regulation’s text alone.

This Article also shows how regulatory purposivism constitutes a new foothold for Henry Hart and Albert Sacks’s classic legal process account of purposivism. Hart and Sacks’s theory is vulnerable to the criticism that discerning statutory purpose is elusive because statutes do not often include enacted statements of purpose. Regulatory purposivism, however, avoids this concern because statements of basis and purpose offer a consistent and reliable source for discerning a regulation’s purpose. From this perspective, the best days for Hart and Sacks’s legal process theory may be ahead.

The rest can be downloaded, which I recommend, here. In particular, Stack sheds some much-needed light on the question of how best to characterize what an administrative agency has said (in a regulation) or done (in a decision). An understanding of this, on the part of a reviewing court, is essential and will often be critical to whether relief is granted or denied to the applicant.

From the paper itself comes a helpful overview of Stack's proposed method:

So what does this regulatory purposive technique look like? The central tenet of the approach is to read the text of the regulation in light of the regulation’s statement of basis and purpose. The D.C. Circuit’s decision in Secretary of Labor, Mine Safety & Health Administration ex rel. Bushnell v. Cannelton Industries, Inc., delivered by then–Judge Ruth Bader Ginsburg, provides a nice illustration.

The Secretary of Labor had issued regulations to protect miners with pneumoconiosis, a lung disease, providing that miners with evidence of pneumoconiosis could obtain a transfer to a position with lower dust concentrations. In addition, the regulations protected the miners’ compensation, providing that “[w]henever” such a miner is transferred “the operator shall compensate the miner at not less than the regular rate of pay received by that miner immediately before the transfer.” In the case at issue, the eligible miner had initially been transferred to work as a dispatcher at his mining wage, and then to an inside laborer position at a reduced wage as part of a general realignment due to economic conditions. The question was whether the regulations protected the miner from compensation decreases solely for transfers to meet the respiratory dust standards, as the employer maintained, or for all subsequent transfers, as the Secretary maintained.

The court agreed with the Secretary, finding the Secretary’s position “consistent” with the regulations’ text (“whenever”) and also “fully consonant” with the “administrative history and purposes.” The court relied on both the general and more specific purposes set forth in the Secretary’s statement of basis and purpose for the regulations. At a general level, the court noted that the Secretary had observed that existing law discouraged eligible miners from claiming protections, and had sought in the regulations to “provide eligible miners with significant additional protections against fears of job security, adverse economic consequences,” and other undesirable working and wage conditions. More specifically, as the court noted, the Secretary’s statement of basis and purpose had stated that an eligible miner, “ ‘should not suffer any loss in pay whenever an operator transfers the miner’ because ‘[i]f any eligible miner perceived that their rate of pay could be decreased upon any transfer, the incentive to exercise the Part 90 option would be reduced.’ ” The court found that these grounds “strongly support[ed]” the Secretary’s reading of the regulations to protect against wage decreases given that existing law already protected the miner’s rate of pay upon initial transfer to less dusty work. The court thus located a reading of the regulations that was both permitted by the text and that carried out the regulations’ purposes, which the court discerned from the regulations’ statement of basis and purpose.

This purposive technique, grounded in the distinctive character of regulations, builds on Hart and Sacks’s model. By treating the agency’s text and the statement of basis and purpose as the focus of interpretation, it respects the principle of institutional settlement. And because statements of basis and purpose are both more consistently produced and more detailed than enacted statutory statements of purpose, purposive regulatory interpretation more frequently dwells on inferences from those statements, and less frequently requires a broader-ranging, independent reconstruction of rational purpose.

Sending a Quashed Decision Back to the Initial Decision-maker Caused a Reasonable Apprehension of Bias

The long title explains the result in Conseil des montagnais de Natashquan c. Malec, 2012 CF 1392, a case about alleged discrimination against Aboriginal educators.

Privatization's Progeny: Canadian Offspring?

Term has happily come to an end up in now-icy Montréal, so I am catching up on all of the reading I missed in the last few hectic weeks. One paper I read some time ago but neglected to blog about is Privatization's Progeny by Jon Michaels.

A half-thought that occurred to me at the time was whether the process described by Michaels had an effect on the Supreme Court of Canada's 2008 decision in Dunsmuir v. New Brunswick, 2008 SCC 9.

Conflicts of Interest and Bias

There is a very brief discussion in a recent Alberta Court of Appeals decision, Kretschmer v Terrigno, 2012 ABCA 345, of the relationship between the rule against bias and imputed conflicts of interest. The most interesting point to emerge is that the rule against bias, applied to adjudicators, may be less demanding than the rules governing conflicts of interest, applied to lawyers.

Municipal Powers: Another Look at the Ford Case

News stories about an Ontario court striking down the City of Toronto's ban on shark fin products (decision not yet available online), as well as a pending media engagement, led me to have another look at Hackland J.'s decision to remove Mayor Rob Ford from office earlier in the week.

Failure to Exercise a Discretionary Power

RM v. Scottish Ministers, [2012] UKSC 58 was a relatively straightforward case for the UK Supreme Court. The applicant/appellant is currently detained in a mental health facility under a compulsion order and wishes to apply to the Mental Health Tribunal for an order declaring that he is being held in conditions of excessive security.

The problem is that although the legislation in issue provides for such applications, they are contingent on the patient and his hospital being 'qualified' under the Mental Health (Care and Treatment) (Scotland) Act, 2003. Unfortunately, no regulations have been passed identifying the "qualifying patients" and "qualifying hospitals" for the purposes of such applications. This situation is not likely to last much longer, however.

Interpretations of "Home" Statutes and Deference

Just a very brief note on a couple of recent first-instance decisions that caught my eye. It has been suggested (para. 22) that the Supreme Court of Canada has recently indicated a strong preference for deferential judicial review when decision-makers are interpreting their constitutive or "home" statutes. Nevertheless, the categories of jurisdictional error and general question of law, said to require intrusive judicial review, remain.

The Mayor, Bias, Procedural Fairness, and Democracy

Plenty of cyberink has already been spilled on the removal from office yesterday of Toronto mayor, Rob Ford. Hackland J.'s decision has aroused surprise, support, calls for reform of Ontario's Municipal Conflict of Interest Act, and, worst of all, bad sporting metaphors. While Hackland J.'s conclusions and interpretive approach are perfectly respectable, I do not think they are correct, as I will explain in this post. On first reading, I thought Hackland J.'s findings of fact were damning enough to give Ford little leeway on appeal. I am now not so sure.

To preview my argument, I think that Hackland J.'s interpretation of some of the statutory provisions is questionable and that his interpretive approach does not properly take account of context and the purposes of the Act. I will address the interpretations I disagree with in the context of explaining the facts of the case and then turn my attention to context and purpose. I should note that there are other questions too, in particular, whether the Act applies at all, but I won't address them in this post.

Be-BAPE-A-Lula

One of the more interesting political stories in Québec at the moment involves the new environment minister, Daniel Breton and the Bureau d'audiences publiques sur l'environnement. On a visit to the BAPE's offices in October, Breton allegedly told members of the BAPE that he would telephone the chairperson whenever the BAPE made a recommendation he disagreed with, before demanding their cell phone numbers.

Supreme Court of Canada decision in Kane

Quick and brutal. The webcast of the hearing in Canada (Attorney General) v. Kane, 2012 SCC 64, was barely up on the Supreme Court's website before the appeal was allowed. Only 17 days elapsed between the hearing on November 6 and this morning's per curiam opinion.

Jurisdictional Error, Procedural Fairness and Advocacy by Tribunals

There is much to say about Samatar c. Canada (Procureur général), 2012 CF 1263, a case involving an apparent jurisdictional error, a flagrant breach of procedural fairness, and over-zealous advocacy on the part of an arm of the state.

The Federal Court of Appeal on Inadequate Reasons

The Supreme Court of Canada took the (in my view) reasonable step in Newfoundland Nurses, 2011 SCC 62 of separating procedural review for failure to provide reasons from substantive review for reasonableness. One concern that might be voiced in response is that rolling a procedural right to reasons into substantive review may give too much latitude to administrative decision-makers, resulting in opaque decisions which communicate little or nothing to those affected. Viewed in this light, the approach of the Federal Court of Appeal in Leahy v. Canada (Citizenship and Immigration), 2012 FCA 227 is reassuring.

Justice Stratas on Reasonableness and Context

Justice Stratas voiced some interesting thoughts on the meaning of reasonableness and context in Canada (Attorney General) v. Abraham, 2012 FCA 266:

[44]           For example, where the decision-maker is considering a discretionary matter that is based primarily on factual and policy matters having very little legal content, the range of possible, acceptable outcomes open to the decision-maker can be expected to be quite broad. As a practical matter, the breadth of the range in that sort of case means that it will be relatively difficult for a party applying for judicial review of the decision to show that it falls outside of the range.

[45]           In other cases, however, the situation might be different. For example, where the decision-maker is considering a discretionary matter that has greater legal content, the range of possible, acceptable outcomes open to the decision-maker might be narrower. Legal matters, as opposed to factual or policy matters, admit of fewer possible, acceptable outcomes.

Section 1 of the Charter: A (Con)Way Out of the Morass?

Section 1 of the Charter of Rights and Freedoms provides that any infringement of a Charter right must be "prescribed by law", a requirement that must be satisfied by the government before an application of the proportionality test. The jurisprudence on section 1 is very messy and has been criticized. Indeed, the Supreme Court of Canada mentioned this criticism in its decision in Doré v. Barreau du Québec, 2012 SCC 12. It even relied on the criticism to justify overruling its previous decision in Multani (see my earlier post here). The funny thing is that the basic problem is not solved by Doré. I am going to suggest, however, that the Court's earlier decision in R. v. Conway, 2010 SCC 22 might point a way out of the morass.

Did the Refugee Protection Division Confuse Two Files?

Pierre c. Canada (Citoyenneté et Immigration), 2012 CF 1249 is one of the strangest cases I have ever seen. A series of bizarre factual errors motivated de Montigny J. to strike the decision down, because it was possible that the Refugee Protection Division had confused two different files.

Who Will Stand Up (in Court) for the Ospreys?

The Ospreys of the title are not the Welsh rugby franchise (often engaged in fierce competition with my home province of Munster), but rather the fish-eating birds of prey found near water. When unlawful government action threatens such creatures, they cannot go to court to defend themselves. Who can? The UK Supreme Court recently had something to say on the question, in Walton v. Scottish Ministers, [2012] UKSC 44.

Immigration Officer's Academic Writing Did Not Cause a Reasonable Apprehension of Bias

The applicant in Francis v. Canada (Immigration and Citizenship), 2012 FC 1141 was concerned that she had not got a fair shake before the Refugee Protection Division, on the basis of comments made by the decision-maker in previous academic writings. He had suggested that the refugee protection system gave rise to anomalies, and cited the applicant's place of origin, Saint Vincent, as an example. He had also argued that Canada's immigration policy could lead to a break down in social cohesion.

Lord Black's Day at the Advisory Council for the Order of Canada

If honours were given for services to administrative law, Lord Black would be a strong candidate. His lawsuit against Prime Minister Jean Chrétien gave rise to an important decision on justiciability, Black v. Canada (Prime Minister), 54 OR (3d) 215. His more recent attempt to maintain his membership of the Order of Canada has prompted another decision, again dealing with the prerogative powers of the federal government, which is likely to make the next editions of Canadian administrative law textbooks: Black v. Advisory Council for the Order of Canada, 2012 FC 1234. 

I think Justice de Montigny was broadly correct in his conclusion that Lord Black did not have the right to an oral hearing before the Advisory Council, though not necessarily for the right reasons.

Rachel Barkow on Prosecutorial Administration

Rachel Barkow has an interesting new paper entitled Prosecutorial Administration. Her subject is institutional design. She argues that the prosecutorial imperatives of the U.S. Department of Justice have become pre-dominant, to the great detriment of three areas of regulation entrusted to the Department: corrections, clemency and forensics. Some of Barkow's observations about administrative agencies with multiple objectives and institutional culture are well-made and thought-provoking.

Keeping the Federal Government out of the Provincial Courts

In its 2010 decision in Telezone, the Supreme Court of Canada took a relatively relaxed approach to private law actions against the federal government in provincial court. The difficulty is that in some of these cases a court will have to adjudicate on the lawfulness -- as a public law matter -- of actions or decisions taken by federal authorities, but this is a matter reserved to the federal courts by the Federal Courts Act.

Language Politics and Administrative Law

If you walk through the city centre streets of Montreal, you could well be walking along any street in North America, such is the predominance of big-name brands. This has long been a bone of contention for Quebeckers. Protest marches are not uncommon. Symbolically, the issue is of great importance, all the more so given the recent return to power of the Parti Québécois.

Now from La Presse comes an interesting story about an application for judicial review by six multinational companies. They challenge a new interpretation of an existing regulation by the Office québécois de la langue française. If the interpretation withstands challenge, Wal-Mart, Best Buy, Costco, Old Navy, Guess and Gap will have to add a French term to their English trademark.

What Happens if you Overhear a Decision-Maker's Deliberations?

A funny thing happened at the Tribunal Administratif du Québec recently. A hearing was conducted into the suspension of an individual's driver's licence by videoconference. One of the administrative judges was present at the hearing; the other joined from a remote location. When the SAAQ -- the administrative agency that controls drivers' licences -- sought to introduce a medical note which it had not previously produced to the individual, the lawyers were asked to leave the room while the judges discussed admissibility.

Québec's Corruption Commission in Figures

A helpful overview from this month's issue of L'actualité.

Self-Represented Litigants and Administrative Tribunals

We know that administrative tribunals have plenty of scope to design their own procedures, which need not resemble those of a regular court. But there are limits, as the Québec Court of Appeal recently explained in a case involving a real estate agent who represented himself -- unsuccessfully -- at a disciplinary hearing.

Vote Obama to Save Federal Regulations!

That is the message of Cass Sunstein's contribution to a New York Review of Books symposium on the upcoming U.S. Presidential election. Sunstein headed up OIRA for three years under President Obama.

Should Statutes be Interpreted in Light of Regulations?

A partial answer from the Nova Scotia Court of Appeal: yes.

The Ontario Court of Appeal Provides Some Reasonableness Guidelines

In passing in its otherwise unremarkable decision in Pastore v. Aviva Canada Inc., 2012 ONCA 642, the Ontario Court of Appeal had something interesting to say about reasonableness.

Can Omar Khadr Apply for Habeas Corpus?

My colleague Stéphane Beaulac raises a question that has not (it seems) had any consideration: can Omar Khadr, now back in Canada, apply for habeas corpus? Khadr can apply for a conditional release next year, but perhaps he will not have to wait that long.

Duties of Fairness in the Disposal of Municipal Buildings

At first blush, the result in North End Community Health Association v. Halifax (Regional Municipality), 2012 NSSC 330 is striking. A municipality's decision to sell an old school to a property developer was held to be unlawful because it breached a duty of fairness to local non-profit organizations and because it was sold at less than market value.

Medical Marijuana and Fettering Discretion

One of the cardinal principles of administrative law is that a decision-maker should never fetter his or her discretion. A recent case involving a claim for reimbursement for medical marijuana illustrates the principle nicely: Heilman v The Workers’ Compensation Board, 2012 SKQB 361.

Sean Rehaag on the Luck of the Draw

Osgoode's twitter feed alerted me yesterday that Sean Rehaag has an interesting empirical analysis of judicial review determinations by the Federal Court on SSRN. His dataset includes leave determinations and determinations on the merits in refugee cases.

Towards a Right to Respond in Immigration Law?

You know when academics say, "Some of my best ideas come from students"? Sometimes, we mean it.

Precedent and Administrative Law -- Again

I have previously blogged about the place of precedent in modern Canadian administrative law. The basic idea is not difficult to grasp. In Canada there is no presumption that there is a "right" answer to any question of law or discretion that arises before administrative bodies. Accordingly, administrative bodies are not bound by their previous decisions. As long as the decision in any given case is reasonable, then it should not be struck down just because the administrative body previously reached a different decision.

The Constitution of Administrative Law

There is much interest in the United States these days in the "unwritten constitution". Better late than never, those of us schooled in the Old World might mutter. Snark aside, one of the spin-offs is some interesting work on the place of administrative law in this unwritten constitution. Americans have long been troubled by the constitutional legitimacy of the administrative state, so the surge of interest is not surprising. I have previously mentioned recent contributions by Gillian Metzger and Adrian Vermeule.

Data Destruction and Public Law: Part II

You may be baffled by the gun registry decision, even having read my earlier explanatory post. You might think along the following lines: the federal government set this registry up in the first place, using its power to enact criminal laws, by making it an offence not to register certain weapons. If that is so, the federal government is surely entitled to subsequently decide to close the registry and destroy the data. They made it, so they can unmake it, right? You can't just leave all that data lying around!

Data Destruction and Public Law: Part I

Major kudos must go to the Québec government's team of lawyers, who masterminded the challenge which resulted yesterday in the grant of a permanent injunction against the destruction of the long-gun registry data by the federal authorities.

Some Justiciability Hypotheticals

Blogging has been light recently: teaching, writing and administrative commitments, allied to some technical problems, have been holding me up.

The Douglas Inquiry

Over at slaw.ca, Simon Fodden points us in the direction of the Canadian Judicial Council's website, which has a collection of documents relevant to the Douglas Inquiry. For those of you who have been dwelling under rocks, this Inquiry is into a sad and sordid tale involving Justice Douglas and her former partner.

Like Simon, I am reluctant to enter the debate on the appropriateness of the Inquiry. But the Inquiry's website is an excellent source of relevant documents.

There are now two judicial review applications before the Federal Court, one initiated by Justice Douglas and one by the former independent counsel to the Inquiry, Guy Pratte (who has now resigned).

Common to both is the allegation that the Inquiry has been conducting itself in an improper manner, by acting in an inquisitorial fashion. If and when the matter gets to court, it will be interesting to see what conclusion is reached on this important question.

Procedural fairness for competitors to licence applicants?

The Manitoba Court of Appeal, in London Limos v. Unicity Taxi Ltd., 2012 MBCA 75, recently discussed whether market participants in regulated industries have any procedural rights when new companies apply to enter the market. The answer in this case was some, but not many.

Making sure you are exhausted before seeking judicial review

Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, involves a masseur, (alleged) extra-marital sex, (alleged) intimidation of a witness and (allegedly) a vengeful government agency. A story interesting enough, then, to survive even the following injection of administrative law principles.

Administrative Law and Assange

Julian Assange is currently hiding out in the Ecuadorian embassy, where he may be for some time. The British government's suggestion that he could be arrested there is wide of the mark, however.

Immigration Officer's Interpretation of Guidelines was Unreasonable

I've commented previously on administrators' interpretations of their own regulations. In a recent Federal Court case, Moya v. Canada (Citizenship and Immigration), 2012 FC 971, the question of how reviewing courts should treat such interpretations arose again.

The Public-Private Divide Again

A decision from the Irish High Court in the long-running saga of Dontex Ltd. v. Dublin Docklands Development Authority, [2012] IEHC 318 is a useful example both of the division between private law and public law and of judicial reluctance to bar claims on the basis that the parties have chosen the wrong juridical route.

Some Recent Decisions on Regulators' Investigative Powers

A helpful way to keep up with recent legal developments in Canada is to follow the output of the country's leading law firms.

Knowing who your friends are (and what that might do to you)

An interesting decision from the Federal Court of Canada today, the latest installment in a long-running labour relations saga at Canada Post.

The Public/Private Divide and Scope of Judicial Review

An individual aggrieved by a governmental decision may have two choices: sue the government for damages, or seek judicial review. Some of the most difficult questions in administrative law arise on the border between a civil suit (private law) and judicial review (public law).

A Bad Day for NAMA

Ireland's National Asset Management Agency won a High Court legal battle against Treasury Holdings earlier this week, but it may end up losing the war. Finlay Geoghegan J.'s judgment, [2012] IEHC 297, cannot have been well received at NAMA headquarters. Over at NAMA Wine Lake, the editors wonder out loud "if indeed the Agency is panicking at the prospect of floodgates of legal action in the wake of yesterday’s judgment".

Curial Deference, Irish style

Karole Cuddihy passes along an interesting Irish High Court decision. In the following passage, from EMI Records (Ireland) Ltd. v. The Data Protection Commissioner, [2012] IEHC 264, the ever-reliable Charleton J. describes the place of deference in Irish law. I think it also functions as a serviceable description of prevailing English law:

That's the Spirit -- Airline Challenge to Advertising and Fees Regulations Fails

Nothing new under the sun is to be found in Spirit Airlines v. Department of Transportation, but the facts are interesting.

Of prerogatives, rules and guidance

The UK Supreme Court decided two very interesting immigration cases the week before last, touching on two very interesting issues.

Principles of (European) Good Administration

The Working Group on EU Administrative Law of Parliament's Committee on Legal Affairs recently reported on the desirability of an EU-wide code of administrative procedure along the lines of America's Administrative Procedure Act (or Ontario's Statutory Powers Procedure Act).

Taking Statutes Seriously

I have a guest post over on the UK Constitutional Law Group's blog explaining the utility of the approach to judicial review outlined in A Theory of Deference in Administrative Law to one of the most rancourous debates in common law academia. You can check it out here.

Vermeule on Conventions of Agency Independence

Adrian Vermeule has an engaging new paper on Agency Independence. Here's the abstract:

Kyoto, the Prerogative and Unwritten Constitutional Principles

My colleague Daniel Turp led a spirited challenge to the federal government's decision to withdraw from the Kyoto Protocol. Spirited and all as the challenge was, it failed before the Federal Court.

The Return of the Nordiques? An Icy Reception for the Applicants

They love their hockey up in Québec City, but have had nothing to love in the major leagues since the Nordiques decamped to Colorado in the mid-90s. Efforts are afoot to revive the local brand. One of the elements is a stadium, financed in part by the City of Québec and the provincial government. The City entered into a contract with media company Quebecor, exchanging management rights in respect of the facility, in return for Quebecor's participation in securing an NHL team for the City. But whether the City had complied with provincial contracting rules quickly became a bone of contention.

Dunsmuir's Flaws Exposed

I have a new paper on Canadian administrative law, which is forthcoming in the McGill Law Journal. Here is the abstract:

In its decision in Dunsmuir v. New Brunswick, the Supreme Court of Canada attempted to clarify and simplify Canadian judicial review doctrine. I argue that the Court got it badly wrong, as evidenced by four of its recent decisions.

The cases demonstrate that the categorical approach is unworkable and in fact a reviewing court cannot apply the categorical approach without reference to the much-maligned pragmatic and functional analysis factors (or some variant thereon). The categories regularly come into conflict, in that decisions could perfectly reasonably be assigned to more than one category. When conflict occurs, it must be resolved by reference to some factors external to the categorical approach.

I also maintain that the single standard of reasonableness is similarly unworkable without reference to external factors. It is not enough to say that reasonableness is a single standard that takes its colour from the “context”. Different types of decision attract different degrees of deference and they do so on the basis of factors that are external to the elegant elucidation of reasonableness offered in Dunsmuir.

Clarification and simplicity have thus not been achieved. I conclude by mischievously suggesting that the Court’s decisions fail to meet the standards of justification, transparency and intelligibility that the Court has deemed central to the conception of reasonableness in Canadian administrative law.

You can download the rest here.

Recording Hearings

There is a great post on Slaw.ca by Ian Mackenzie from last week on recording administrative hearings. He gives an excellent overview of the issues, embedded in an understanding of the old concern that increased formality may lead to decreased efficacy.

Standard of Review in the Copyright Cases

Last week the Supreme Court of Canada released its reasons in a "fivefecta" of copyright cases. Interesting questions were raised. Are additional royalties payable when a video game is downloaded rather than bought over the counter? Is streaming a communication to the public which requires payment to the copyright holder? When a consumer listens to a preview of a song on iTunes, is Apple on the hook for an extra royalty? How much copying can a teacher do to create course materials for students? And is a movie soundtrack to be treated as a whole or a collection of components? Amidst all this, the Court also found time to introduce a new innovation in standard of review.

Deference and Defence

Mindful of the threat of a terrorist attack during the Olympics, the British authorities have developed an Air Security Plan. One element of the plan is to install missiles on the roof of a residential apartment tower in Leytonstone. Unsurprisingly, the residents were upset. They went, unsuccessfully, to the High Court to judicially review the missile-siting decision.

Principles of Good (Digital) Administration

One of the drivers of the development and application of doctrine in administrative law is the concept of the principles of good administration. On one view, courts and administrators work collaboratively to produce rational and efficient policies and decisions.

Deference to Administrators' Interpretations of their Own Regulations

The Supreme Court of the United States recently cast a critical eye over the concept of Auer deference (so called even though the seminal case is actually Bowles v. Seminole Rock & Sand Co.). When administrative bodies promulgate rules, regulations and policies to fill in the gaps in statutory provisions, their promulgations may themselves have gaps and require further interpretation. Auer deference commands that any such further interpretation "becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation" (see here). 

A Theoretical Book but a Practical Approach

Over the next couple of weeks, I am going to blog occasionally about my new book, A Theory of Deference in Administrative Law:Basis, Application and Scope. For my first post, I thought I would start with something that does not really appear in the book at all: a brief overview of the approach I urge. Despite the daunting title, what I actually propose is, in my view, quite simple. I have drawn on Canadian cases to provide examples, solely because they feature in an article I am currently revising, which will shortly appear in the McGill Law Journal; I hope to post it on SSRN by the end of this week. In principle, this approach is applicable in any common law jurisdiction where there is judicial review of administrative action.

Human Rights Remedies and Administrative Bodies

Unlike many (perhaps most?) other countries, Canada allows administrative bodies to make non-binding interpretations of constitutional provisions and to grant remedies for human rights violations by state actors.

A Successful Closed-Mind Argument in the Citizenship Setting

A basic principle of administrative law is that a decision-maker must approach its decisions with an open mind. Demonstrating that a decision-maker had a "closed mind", however, is extremely difficult. A decision-maker bent on refusing an application come what may will, if clever enough, keep his or her prejudices to him or herself.

Changing Policy to Reflect Policy? Be Careful

As a Q.C., Rabinder Singh appeared in some of the most significant public law cases before the superior courts of England and Wales.

He was appointed to the bench in 2011. From the High Court, he recently issued an interesting judgment in H.A. (Nigeria) v. Home Secretary, [2012] EWHC 979 (Admin), a case concerning the lawfulness of the detention of an asylum seeker who suffered from mental disorders and was detained in a series of Immigration Removal Centres.

Of greatest interest is Singh J.'s treatment of an administrative policy which had been developed by the Home Secretary. The wording of the policy had been changed, but the Home Secretary argued that the change merely reflected administrative practice.

This was important because had the policy changed in substance, it would have been necessary to undertake an equality impact assessment; none had been conducted.

Singh J. held that a material change, requiring an assessment, had occurred, whatever the subjective intention of those involved:

1. In my judgement there was a change in at least the stated policy. There was obviously a change of wording, in other words a reformulation of it. Even if the Defendant did not intend that to be a substantive change in her own policy, there are two reasons why the public sector equality duties were triggered by that reformulation. The first is that the meaning of a policy is an objective matter: whatever the subjective intentions of its authors, the formulation matters because the words which express a policy affect the public, not just officials within a department, for example individuals who are liable to detention and those who advise them. The reason why public law has in recent years come to recognise the importance of adherence (in general) to policy statements is that they serve an important function in maintaining the rule of law, which is of particular importance when fundamental rights such as the right to personal liberty are at stake. 

1. The second reason is that, even on the Defendant's own evidence, she was seeking to reformulate the policy to re-align it to what had been thought within the department to be its practice all along. The courts had given an interpretation to the policy which did not accord with the practice of the Defendant's department. But that is implicitly to acknowledge that in fact there was a change of policy if not of practice. It was common ground before me that, in the present context at least, the meaning of a policy is ultimately a question for the courts, not one for the executive. If that is right, then when the words of a policy are altered, that is a change in policy. It was clearly intended to have some effect, otherwise it would have been a pointless exercise.

These comments on the interpretation of policies being wholly in the domain of the courts are very English (whenever I get around to my promised discussion of Auer deference, the difference of the American approach will be manifest). But the fundamental point is that when administrative policies change, the administrator in question is placed under a variety of public law duties, which are perilous to ignore.

While I Was Away

Penn Law's blog on regulation has published an interesting series of posts on Mitt Romney's regulatory policy, collected here. Gold star to Ron Cass, who identifies the malleability of cost-benefit analysis and suggests: "presidential enthusiasm for or suspicion of regulation (or sensitivity to particular aspects of it) can significantly affect how administrative agencies go about their business".

Staying in the United States, the Supreme Court issued a decision on the Federal Communications Commission's obscenity standards. As discussed here, the outcome was that the standards were unconstitutionally vague. Interestingly, this decision makes it twice that the Supreme Court has refused to consider the substance of broadcasters' complaints that the standards are an unconstitutional limitation of their freedom of speech: in 2009, the Court held (on administrative law grounds) that the FCC's decision to firm up its standards was lawful.

That Court also found time to question so-called Auer deference, a topic to which I shall return.

Across the Atlantic, Cambridge University Press published my A Theory of Deference in Administrative Law: Basis, Application and Scope. Much more on that in the coming weeks: you have been warned.

While there, Anthony Bradley's paean to the Administrative Court is worth reading.

In Ireland, an interesting judicial review application commenced yesterday. Treasury Holdings claims that the decision of the National Asset Management Agency (the government-established body/"bad bank" to which a huge portfolio of bank loans have been transferred) was unreasonable and procedurally unfair. The most interesting aspect is whether NAMA is under a duty to act in a commercial reasonable and fair manner. Coverage from the Irish Times of the first day of hearings here, the author noting the crowd-evaporating power of administrative law: "The hearing was well attended in the morning but the crowd had thinned out after lunch as the dry and technical nature of Mr Cush’s submission took its toll".

Oh, and the Supreme Court of the United States also decided whether President Obama's health care reform was constitutional. The only surprise was that the Internet did not spontaneously combust in the aftermath.

Blogging Hiatus

I am off on what promises to be an electronics-free holiday until the start of July.

On my return, I expect to have a look at the interesting decision of the Supreme Court of the United States in Elgin v. Department of the Treasury, discussed here by Steve Vladeck. One of the issues there is the extent to which constitutional arguments can be pursued in non-judicial bodies, a question which also arose in a recent Canadian decision, Telbani.

By then, we should also have a decision on whether one of the most newsworthy administrative structures of recent years, the individual mandate holding together President Obama's Affordable Care Act is constitutional or not. Interesting times lie ahead.

Process and Substance: What Happens when the Decision-Maker Doesn't Listen?

Another example from the Canadian courts of the thin line separating process from substance: Turner v. Canada (Attorney General), 2012 FCA 159. On this occasion, the determination that a question went to process is again plausible at first sight but troubling on closer inspection.

Due Process and Drone Strikes

Last week, the New York Times published a lengthy article on the 'secret kill list' being maintained by President Obama. Whatever the merits of targeted killings as a matter of international law, international human rights law, or justice, for students of administrative law, there are at least three aspects of interest to the story. To be clear, in what follows, I am not taking a position on the legality or morality of the strikes. But in the absence of formal due process through judicial review, it is worth considering the internal safeguards that administrative law norms suggest.

The Unfortunate Triumph of Form over Substance in Canadian Administrative Law

I have posted a revised version of my article on form and substance in Canadian judicial review doctrine on SSRN. It is now forthcoming in the Osgoode Hall Law Journal. The abstract is as follows:

The standard of review analysis for judicial review of administrative action developed over the course of four decades by the Supreme Court of Canada had two important features. First, it provided something of a bulwark against interventionist judges, thereby protecting the autonomy of administrative decision-makers and promoting deference. Secondly, it was unrelentingly substantive, rather than formal, and moved the focus of judicial review away from abstract concepts and towards the eccentricities of statutory schemes.

However, in its more recent forays into the general principles of judicial review, the Court has threatened to reverse its deferential and substantive course by following a formalistic, categorical approach rather than the standard of review analysis. In this article I will describe the Court’s efforts to reshape the law of judicial review of administrative action in two important recent cases, I will critique these efforts as favouring a formalistic approach to judicial review, and I will suggest that in its haste to simplify the law of judicial review, the Court has jeopardized the according of due deference to administrative decision-makers and erroneously favoured form over substance.

You can download the rest here.

Unequal Treatment of Local Government Taxpayers in North America

The highest courts of both the United States and Canada have both recently pronounced on claims relating to the unfairness of local government taxation systems. Before the Supreme Court of Canada, the argument went to the substantive reasonableness of the municipal by-law at issue. Further south, the Supreme Court of the United States was asked to find a violation of the equal protection clause of the 14^th Amendment to the U.S. Constitution. Doctrinally, the cases are distinct, but the striking similarity of the issues engaged and the results reached makes for an interesting comparison.

La cohérence décisionnelle en droit administratif

Je pensais de garder cette décision jusqu’au retour en classe des étudiants du préscolaire à la fin de l’été, mais finalement j’ai conclu que les principes découlant de ladite décision sont trop intéressants pour les cacher plus longtemps. La Cour d’appel y explique très clairement les principes de la révision judiciaire au Québec.

Environmental Reform in Canada

The federal government's use of an omnibus budget bill to enact measures affecting a variety of different areas has come under sustained attack (you can also listen to the comments of my colleague, Stéphane Beaulac, from the three-minute mark here).

Whatever one thinks about the substance of the underlying reforms, one can certainly quibble about the process the federal government has followed. Exposing the relevant provisions to the usual process of parliamentary scrutiny would hardly hurt and may even help the overhaul the federal government envisages.

Beyond that, however, the substance of the reforms should presumably be judged on the merits. Via Norton Rose comes an even-handed overview of the proposed changes to environmental regulation. There appears to be much give-and-take in the proposed legislation: fewer decision-makers will be obliged to conduct environmental assessments, but their decisions will now be binding rather than recommendatory; fewer effects of proposed projects are to be considered, but this seems designed to exclude consideration of matters within provincial jurisdiction; strict time-lines for decisions are imposed, but provision is made for public participation in the decision-making process; and the burden of work on the federal authorities in the environmental assessment process is reduced, but by permitting delegation to provincial authorities.

All in all, a good primer on the substance of the proposed changes. But it probably should be read in conjunction with the comments of those who fear the gutting of environmental protection.

Delegation of Law-Making Power to Private Entities

Last week the U.S. District Court for the District of Columbia upheld against constitutional challenge a delegation of power to Amtrak to develop performance standards.

Unreasonable Exclusion of Claims by Arbitrator

Another example, this time from the Manitoba Court of Appeal, of a decision-maker stretching language too far.

Administrative Policies Must be Reasonable

Administrative agencies are generally entitled to develop policies. Doing so assists agencies in discharging their statutory mandates in a coherent and consistent manner. Those who come into contact with agencies also benefit: it ought to be easier to predict the application of a general rule than the exercise of discretion.

From the Court of Appeal of Saskatchewan comes a reminder that the power to develop policies is not unlimited. In particular, policies must be consistent with the statutory provisions they purport to implement.

Metzger on Administrative Common Law

Professor Gillian Metzger has an excellent paper on a topic comparatively neglected by American administrative law scholars: the common law nature of judicial review doctrine. The abstract:

This article begins with the descriptive claim that much of administrative law is really administrative common law: doctrines and requirements that are largely judicially created, as opposed to those specified by Congress, the President, or individual agencies. To be sure, governing statutes exert some constraining force on judicial creativity, but the primary basis of these judge-fashioned doctrines lies in judicial conceptions of appropriate institutional roles, along with pragmatic and normative concerns, that are frequently constitutionally infused and developed incrementally through precedent. Yet the judicially created character of administrative law is rarely acknowledged by courts - and to the extent courts do acknowledge judicial development of administrative law, they usually condemn the practice.

Turning from descriptive to more normative, the article argues for explicit judicial recognition and acceptance of administrative common law. Administrative common law serves an important function in our separation of powers system, a system that makes it difficult for Congress or the President to oust the courts as developers of administrative law. In particular, the institutional features of administrative law - the role it plays in structuring relationships between different government institutions and the requirements it imposes on how agencies operate - create strong pressures on courts to play a lawmaking role. Moreover, courts have employed administrative common law as a central mechanism through which to ameliorate the constitutional tensions raised by the modern administrative state. These features combine to make administrative common law inevitable. At the same time, administrative common law represents a legitimate instance of judicial lawmaking. The very same factors that support federal common law in other instances - unique federal interests at stake, a need for uniformity, and the impropriety of relying on state law - dominate federal administrative contexts. Much administrative common law also has a statutory basis to which it is at least loosely tethered, and embodies core constitutional values. As important, openly acknowledging the role that judicial lawmaking plays is critical to clarifying and improving administrative law.

The rest can be downloaded here.

Reasons and Reasonableness in Administrative Law

In describing the deferential standard of review of reasonableness in Dunsmuir v. New Brunswick, the Supreme Court of Canada was very eloquent. Where a standard of review of correctness is appropriate, the reviewing court substitutes its judgment for that of the initial decision-maker. But where deference is owed,

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.  In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.  But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

For more on Canadian judicial review doctrine, see my paper here.

One of the questions left unanswered by Dunsmuir was how this standard of reasonableness coheres with the duty to give reasons. This question is an important one, because the duty to give reasons has traditionally been treated as a matter of procedural fairness. When a right to procedural fairness is engaged, the standard of review is correctness: it is the reviewing court that decides whether the applicant has been treated in a procedurally fair manner.

Now, the distinction between procedure and substance is a tricky one (see my earlier post here) and here it gives rise to a problem. Assuming that the standard of review of the substance of a decision should be reasonableness, clever counsel could undermine deference by claiming that the reasons were insufficient. Adequacy of reasons, remember, attracts a standard of correctness and substitution of judgment. The idea would be to have the reviewing court substitute its judgment for that of the decision-maker in deciding whether the reasons given were adequate to explain the decision under review. An end-run around the standard of reasonableness could be accomplished by manipulating the distinction between procedure and substance.

Such sleight of hand is no longer possible after the Supreme Court of Canada’s decision in Newfoundland andLabrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board). Justice Abella noted with approval the warning of Professor Bryden: “courts must be careful not to confuse a finding that a tribunal’s reasoning process is inadequately revealed with disagreement over the conclusions reached by the tribunal on the evidence before it” (para. 21). She went on to explain that the better reading of Dunsmuir is that the adequacy or inadequacy of reasons goes only to whether the decision is reasonable, not to procedural fairness:

[14]    Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for the result.  It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.  This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes”.

Where no reasons at all have been offered in support of a decision, the failure to give reasons may be a breach of procedural fairness: “Where there are no reasons in circumstances where they are required, there is nothing to review” (para. 22). Beyond that, what matters is the reasonableness of the decision, determined in part by the adequacy of the reasons given for it.

As chance would have it, my current recreational reading is Amartya Sen’s The Idea of Justice. In explaining why the conventional economic view of rational choice is inadequate, Professor Sen comments in terms eerily reminiscent of the language used in Dunsmuir and Newfoundland Nurses:

Having reason to do something is not just a matter of an unscrutinized conviction – a strong ‘gut feeling’ – that we have ‘excellent grounds’ for doing what we choose to do. Rather, it demands that we investigate the reasons underlying the choice and consider whether the alleged reasons survive searching and critical examination, which one can undertake if and when the importance of such self-scrutiny is understood. The grounds of choice have to survive investigation based on close reasoning (with adequate reflections and, when necessary, dialogue with others), taking note of more information if and when it is relevant and accessible (p. 180).

That is not the only area of overlap between Professor Sen and the Supreme Court. In some areas of decision-making, such as labour relations, only laconic reasons need be given to parties well-versed in the intricacies of the relevant relationships and legal provisions. Taking Justice Abella’s view of the relationship between reasons and reasonableness, sparseness in explanation is not problematic. Thus it is interesting to note that Professor Sen continues: “When the reasons for a particular choice are established in our mind through experience or habit formation, we may often choose reasonably enough without sweating over the rationality of every decision” (p. 181).

Clearly, great minds think alike!

Why Destroying the Long-Gun Registry Data is Unconstitutional

The literature on the establishment and operation of administrative agencies is voluminous. Even the destruction of agencies – deregulation – has inspired eloquent words. Less ink has been spilled about the consequences of deregulation. The impending argument over the abolition of the Long-Gun Registry is an example of destruction and deregulation giving rise to litigation.

In this post, I argue that the means chosen by the federal government for destroying the data contained in the Long-Gun Registry is unconstitutional; Québec should, in my view, prevail in its constitutional challenge. It has already prevailed in winning an injunction preventing the destruction of the data, and the substance of its challenge will be heard shortly in the Superior Court. An appeal by the losing party to the Court of Appeal and thence the Supreme Court of Canada is inevitable, unless the federal government and Québec reach some sort of agreement in the meantime.

The Rights of Corporations in Administrative Law

An ever-present issue in debates over constitutional law doctrine in the United States is whether corporations should be capable of enjoying constitutional rights. Concern about the equation of natural and legal persons is not unique to American jurists, however. A federal court judge in Canada has stated in strong terms that corporations are not entitled to the same rights as individuals in administrative law

Aboriginal Rights and Administrative Law

Via Canadian Appeals Monitor, word that the Supreme Court of Canada has granted leave to appeal from the decision of the British Columbia Court of Appeals in Sally Behn v. Moulton Contracting Ltd.

The primary issue here will be whether individual members of a First Nation can rely on a breach of the duty to consult in order to challenge administrative decisions. The individuals in question blocked a road, thereby preventing a company from exercising logging and road use rights that it had been granted.

Of Tongues and Teeth: Sliding Scales in Judicial Review

The UK Supreme Court's decision of last week in Humphreys v Revenue Commissioners puts me to thinking about sliding scales. These are quite common in public law. At base, the idea is that greater scrutiny will be paid to decisions (or statutory provisions) in some circumstances, and less in others.

Monetizing Benefits

Interesting paper here from Arden Rowell (University of Illinois). One of the difficulties with regulators performing cost-benefit analyses lies in determining what should go into the analysis. Some things we can count quite easily: to use Rowell's example, the cost of installing rear-view cameras on cars; and the benefits in terms of lives saved (although this exercise may be controversial). Other things are harder, if not impossible, to count: the added benefit that childrens' lives will be disproportionately saved by rear-view cameras. How then, the question goes, can you conduct a cost-benefit analysis when the costs and benefits are incommensurable? Isn't the problem, at base, that regulators must make moral judgments about the weight to accord to certain types of interest, and that moral judgments cannot be quantified? Rowell suggests that regulators should attempt to partially monetize all benefits, as best they can, to conduct thorough cost-benefit analyses in the face of worries about incommensurability:

Insofar as this hesitation stems from concern about the incommensurability of money and other goods, it should cease immediately. Incommensurability does not preclude partial valuation, i.e. the partial expression of a good’s value in terms of another good. Even something as horrific and emotionally laden as the death of a child can therefore be partially monetized, i.e. partially expressed in terms of money, so long as people are willing to pay money to prevent it from occurring. Emotional goods like these are difficult to think about, and even more difficult to monetize, but refusing to monetize them at all is not a reasonable solution.

Rowell's solution would have the advantage of forcing regulators to set out their assumptions and judgments in monetary form, so as to allow a balancing of costs and benefits. Such a balancing would then be transparent and accountability would presumably be increased. But I have a nagging feeling that to assign dollar amounts in this way may serve simply to obscure the important moral judgments that have to be made by regulators.

Henry VIII vit encore!

Much hubbub this morning at the Assemblé Nationale as the deputies debate legislation designed to end the student boycott – excellent coverage of the marathon législatif from Radio-Canada here.

Some of the hubbub relates to a “Henry VIII” clause, contained in Article 9 of the draft legislation. This allows the Minister for Education to take “toutes les mesures nécessaires” to bring Articles 2 through 8 of the law into operation, including making modifications to existing laws.

Henry VIII was fond of such clauses, which gave him a power to dispense with inconvenient statutory provisions. But so are modern Parliaments! Such clauses are constitutional in Canada, though the powers can only be used for precisely the purposes they are granted: see the discussion by the Ontario Divisional Court here. Not so elsewhere: in Ireland, for example, they are entirely unconstitutional (see pages 9 and 10 here).

Nonetheless, the Minister has suggested that she will revise the Henry VIII clause. Which goes to show that what is legal is not always what is politically acceptable.

C’est qui le maître chez l’arbitre?

A challenge, perhaps, from the Québec Superior Court to the established rule that tribunals are masters of their own procedures, as long as they do notviolate the rules of natural justice. A challenge, certainly, to anyone who thinks the distinction in administrative law between matters of procedure (for reviewing courts) and matters of substance (for decision-makers) is an easy one to grasp and apply.

Here, four individuals made complaints to a labour arbitrator. At the outset, the individuals’ union representative successfully sought an order excluding witnesses from the hearing. Two of the complainants were to be called and were thus excluded; the two others remained. Subsequently, however, the union sought to call one of the two complainants who had sat in on the arbitration up to that point. In addition, it changed representatives and sought to call the previous representative as a witness. While it is not clear from the facts, it is possible that the uncomfortable operation of changing union representatives mid-stream was what led to the difficulties. In any event, the arbitrator excluded the evidence.

Collier J. reversed the arbitrator’s decision to exclude. Interestingly, he classified the matter as one of procedural fairness, to which a standard of correctness should apply. This conclusion is not self-evident. Decisions on the admissibility of evidence can attract deference, as Lamer C.J. explained for a majority of the Supreme Court of Canada in Université du Québec à Trois-Rivières v. Larocque (1993):

The question before this Court is…whether, in erroneously deciding to exclude evidence relevant to the ground of dismissal which he has himself identified as being that which he must examine, the arbitrator necessarily commits an excess of jurisdiction.  In my view the answer to this question must in general be no.  It will be yes, however, if by his erroneous decision the arbitrator was led to infringe the rules of natural justice.

On this analysis, it is only the question of procedural fairness to which a standard of correctness applies. A standard of reasonableness applies to the decision-maker’s admissibility determination. In other words, Lamer C.J. drew a distinction between procedure (correctness) and substance (reasonableness). In the present case, following this approach, the questions for the reviewing court would have been (a) was the arbitrator’s decision to exclude the witnesses reasonable; and (b) did it render the process unfair?

By contrast, Collier J. asked whether the arbitrator’s decision to exclude the witnesses was correct, treating it is as a matter of procedure rather than substance. He examined whether the arbitrator’s admissibility determination was consistent with the general rule that parties should not be excluded from hearings. Concluding that it was not, he quashed the arbitrator’s decision in its entirety.

So much for the arbitrator’s claim to be maître chez lui!

But Collier J. does give a good, sharp explanation of the standard of correctness:

Il s'ensuit que le Tribunal doit entreprendre sa propre analyse de la question et il n'est nullement tenu d'acquiescer au raisonnement de l'arbitre.  Si le Tribunal n'est pas d'accord avec la conclusion de l'arbitre, il y substitue sa propre décision et rend la décision qui s'impose.

Like many things, the standard of correctness sounds better in la langue de Molière. 

H/T Ashley Kandestin au Blogue du CRL

Why Study Law?

McGill's Professor Rod Macdonald is one of Canada's leading administrative law scholars and also a big thinker about the role and place of legal education. He gave a speech at the London School of Economics a few months ago, which he has now posted on SSRN. A taste:

Here is my first claim. Studying law is a powerful inquiry into inter-personal and
social relationships, into the complexities of people in interaction with each other.
Not just casual encounters, although many legal relationships are of this type. Not
just hierarchical impositions of power, although some legal relationships are like
this. Law is concerned with the institutions and processes through which human
beings fashion just relationships. The study of law demands understanding of
human beings as purposive, and of human institutions as means-ends complexes.
The student of law learns to be a wise counsellor on questions of institutional
design. Not a social engineer seeking to dictate human conduct, but an architect
of agency-promoting, facilitative social structures that are on offer to citizens and
governments.

Second, legal study is grounded. It proceeds from the particular to the general.
Legal learning is grounded in the practice of understanding and solving specific
problems that arise in everyday life. Abstract, theoretical knowledge is a canvass
on which students of law learn to paint particular proposals for addressing novel
situations beyond the contemplation of general rules. Law is concerned with the
conditions under which human freedom can be pursued within a series of offices,
roles, and rules. The law student acquires the discipline to ask not ‘what does the
law permit me to do?’ but rather to reflect on answering the question ‘what should
I do, all things considered?’

Third, legal study involves acquiring a range of capacities and skills for
mediating the experiences of the quotidian with the ideals of the transcendent. Law
graduates are dispersed into all sectors of society, both domestically and
internationally. Many do not practice the profession in its traditional forms. But
the goal of a well-conceived legal studies programme is that all graduates take with
them the everyday lessons of law and the lessons of everyday law. And they do so
with a clear understanding of what it means to be committed to the virtuous
deployment of their knowledge and expertise. Knowledge of the law enacted by
Parliaments and applied by courts is a small part of the endeavour. A law student
learns to traverse the terrain of law that is promulgated by international
organisations, and by the local chapter of the Red Cross society. And a student of
the law also learns to understand the internal law of multi-national corporations
like Reebok, the informal law of a neighbourhood, and the legal mêlée of the
University. Every setting demands attention to issues of legitimacy, due process,
and justice; how one engages with everyday law in quotidian sites is the litmus test
of legal virtue.

Fourth, studying law offers members of a community a powerful lens through
which they may view and judge themselves and their community. Law is not just a
thing. It is more than a practice. Law is a human accomplishment. Over time,
various dimensions of formal (or official) law and informal law come to express a
society’s values and convictions, as well as its prejudices and pathologies. Students
of law learn to act virtuously within the confines of legal practice. They learn to
frame arguments that bring scrutiny to accepted norms, accepted processes, and
accepted outcomes. But students of law learn to stand outside the law as well.
True engagement with law is inescapably self-reflexive and self-critical.

Read it all.