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.