My previous posts on Rob Ford

Toronto Mayor Rob Ford won his appeal this morning, as I predicted.

You can find my previous posts here:

http://administrativelawmatters.blogspot.ca/2012/11/the-mayor-bias-procedural-fairness-and.html

http://administrativelawmatters.blogspot.ca/2012/12/municipal-powers-another-look-at-ford.html

http://administrativelawmatters.blogspot.ca/2013/01/mayor-ford-collateral-damage-from.html

And a Financial Post op-ed here:

http://opinion.financialpost.com/2012/12/11/divisional-court-should-overturn-flawed-rob-ford-decision/

Proving Ethnicity: Aboriginal Rights and Administrative Process

Members of Canada's First Nations have, if they can satisfy the significant evidentiary thresholds, potentially broad rights to engage in traditional practices such as hunting and fishing. At issue in L=Hirondelle v Alberta (Sustainable Resource Development), 2013 ABCA 12 was the administrative structure erected by the province of Alberta to regulate the issuing of fishing licences to members of First Nations. In particular, the provincial government's policy provides that recognition as a member of a First Nation does not automatically entitle an individual to exercise the aboriginal rights protected by s. 35 of the Constitution Act, 1982.

Oh no, not that guy again!

Ontario's human rights legislation allows unsuccessful parties to a complaint to apply for reconsideration of a decision. But what if the adjudicator who already found against the party is the same adjudicator who determines the application for reconsideration: will the party applying for reconsideration really get a fair shake?

Mayor Ford: Collateral Damage from the Doctrine of Collateral Attack?

I have written quite a bit about the saga surrounding the removal from office of Toronto's Mayor, Rob Ford: see here (principally on the Municipal Conflict of Interest Act), here (principally on the City of Toronto Act) and here (an overview of why the Divisional Court should allow Ford's appeal). Hackland J.'s decision at first instance is Magder v. Ford, 2012 ONSC 5615. For those of you fed up with Ford, I promise that this will be my last post until the Divisional Court makes a decision!

Warning: this post might not make much sense if you have not read the first-instance decision and my previous commentary.

Regulatory Breakdown in the United States

Penn's RegBlog is running an interesting series on Regulatory Breakdown: The Crisis of Confidence in U.S. Regulation (UPenn Press, 2012), edited by Cary Coglianese. The series features short versions of the contributions to the book.

Here is a brief taste, from a chapter on housing regulation:

Regulatory oversight of the housing finance system became reliant on what products the government-sponsored enterprises were willing to buy and the FHA was willing to insure. However, starting in the 1960’s and continuing through the 2000’s, the conditions needed for public option to work as a regulatory scheme started to change.  With the privatization of Fannie Mae, creation of Freddie Mac, and the crash of the savings and loan industry, the limited regulation that had existed under the public option approach proved to be woefully inadequate. 

The inadequacy of the public option became even clearer with the privatization of secondary mortgage markets, which started including riskier and non-standard mortgage products.  The prior regulatory approach became defunct, according to the Levitin and Wachter.  While the housing finance market expanded rapidly from the New Deal up through the financial crisis of 2008, regulatory oversight in this field decreased, instead of becoming stronger, with the increased competition and “race to the bottom” in underwriting and pricing standards that came with privatization.

After the 2008 crisis, the public option is back.  Just as when it was first created, the public option approach of today has arisen as an inadvertent byproduct of financial collapse, instead of through a deliberate process. As the reliance on the public option declines in the years ahead, a regulatory system that is reliant on command-and-control regulations and Pigouvian taxation will become necessary.  However, if a hybrid approach is chosen, and public options compete with private actors, the authors argue that traditional and uniform regulatory oversight will still be needed.  In that case, regulators must ensure that all actors are competing under the same sets of rules, and that there is no race to the bottom among the private actors in a hybrid housing finance market.

Canada's Least Wanted

I spent yesterday afternoon in a professional development session at the Department of Justice on the subject of the Canadian Border Services Agency's "Wanted" list. Here is the abstract of my talk, Canada's Least Wanted: Two Perspectives of an Administrative Lawyer:

Taking a leaf out of a book first written by the FBI, the federal government has tasked the Canada Border Services Agency with the preparation and maintenance of a ‘Most Wanted’ list. The CBSA list bears some resemblance to that of the FBI: on it feature individuals, complete with photographs and short biographies, judged inadmissible to Canada because of infractions identified by the Immigration and Refugee Protection Act.

In principle, the ‘Wanted by the CBSA’ list is not objectionable. However, a device of this nature needs to be fitted with appropriate circuit breakers. An appearance on the list could have serious consequences for an individual wrongly identified. As the list expands – potentially to include those who have not yet been judged inadmissible – the need for systematic protections increases.

From the perspective of the administrative lawyer, the list can be viewed from two perspectives. As a preliminary matter, it is important to identify the legal and policy bases for the creation of the list, in order to view the list in the clearest possible light. Moreover, law and policy set the parameters of the framework within which the executive can legitimately operate.

The first perspective is that of institutional design. Some internal procedure is necessary to determine who is put on the list and who is not. Beyond this, a procedure is also necessary to determine when an individual should be taken off the list, because they are no longer in Canada, or because they ought not to have been put on the list in the first place. In the design of these procedures, federal government policy-makers and lawyers should be alive to the various cognitive biases which can hinder rational decision-making.

The second perspective is that of judicial review, with its substantive and procedural dimensions. One can imagine challenges based on the absence of the necessary justification, transparency and intelligibility in the decision-making processes, mounted by those who feel they have been wrongly listed. In addition, to the extent that the policy targets individuals who may be, or are, outside Canada, the issue of extra-territoriality may be relevant to the lawfulness of the list. Although challenges on procedural grounds to a decision to place someone on the list would be far-fetched, a decision not to remove an individual might trigger procedural rights, such as disclosure.

Viewing the list from these two perspectives may shed light on the nature of administrative decision-making and, more concretely, inform future decisions about the scope of the list.

I was generally positive about the CBSA's initiative, though with some reservations about plans to expand the list to assist in locating individuals who are wanted for admissibility hearings (i.e. those against whom no finding of inadmissibility has yet been made).

So far there have been no challenges to the list itself. An appearance on the list was held by Tremblay-Lamer J. in Guzman v. Canada (Public Safety and Emergency Preparedness), 2012 FC 401 to be an important factor in determining whether an individual would be at risk if returned to his country of origin:

[20]           To begin with, the applicant had told the officer that the CBSA had posted his photo [translation] “on its site and all over the Canadian media”, as a most wanted criminal. This information in itself refutes the officer’s finding that Canadian authorities do not disclose the criminal histories of individuals they remove to El Salvador, and that the applicant’s criminal history would not subject him to any particular risk in El Salvador. It may well be the case that Canadian authorities do not share the reason for the removal with foreign authorities, but circumstances in this case certainly increase the likelihood that the Salvadoran government would be aware of the applicant’s criminal past, especially given the fact that his face was posted all over the Internet and in newspapers across Canada. At any rate, the officer did not address this issue in his analysis.

The list also made an appearance during oral argument at the Supreme Court of Canada yesterday in Ezokola. Counsel for the Canadian Council of Refugees made reference to the consequences of a finding of inadmissibility for complicity in the commission of war crimes as including potentially being placed on the "Wanted" list. 

It will be interesting to see if there is any in-depth judicial treatment of the list and, if so, what conclusions will be reached.

Governance of First Nations: Federal Court Exercises Discretion not to Grant Relief

Canada's relationship with its First Nations has been in the news a great deal recently, due to the Idle No More protests. Governance is a central issue in current political discourse and it was also at the centre of Gamblin v. Norway House Cree Nation Band Council, 2012 FC 1536.

Deference on Questions of International Law

The majority of the Federal Court of Appeal in Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324 refused to defer to the immigration authorities' interpretation of Article 1F(b) of the Refugee Convention (as implemented by s. 36 of the Immigration and Refugee Protection Act).

Two Recent Papers on Accountability

I was particularly taken by Julia Black's recent Calling Regulators to Account: Challenges, Capacities and Prospects:

Since their inception, public lawyers and political scientists have fulminated at the lack of accountability of regulatory agencies. But, though it may surprise their critics, regulatory agencies do not go out of their way to be unaccountable. The difficulties of accountability, this article argues, lie in large part elsewhere: with the institutional position and accountability capacity of the accountors, and with the particular nature of the challenges that face them. The article focuses on developments in the roles of the four main accountors in the UK political domain in turn: the core executive, Parliament, the National Audit Office and consumer bodies, exploring their relationships both with the accountees (the regulators) and with other bodies which are calling those regulators to account. It examines their capacity to call regulators to account, and to meet the five core accountability challenges that face them: viz the scale and scope of the regulatory landscape, the number of organizations involved in any one regulatory domain, the complexity of their relationships and their propensity to blame-shift; the technical complexity and contestability of the regulatory task; the opacity of regulatory processes; and the willingness of the accountee to be called to account. These challenges produce deep-rooted tensions which are not easy to resolve, and create opportunities for blame- shifting which both accountors and accountees can, and do, seek to exploit. Moreover, the roles of accountors themselves are fluid, moving from accountor to participant to controller, bringing further complexity to the accountability relationship. However, it is the nature both of the relationship and the task of accountability that these tensions will exist, and it is right that they do, at least up to a point. For without those tensions both regulators and their accountors will become complacent, which will be to their detriment, as well as ours.

Accountability is a vast concept, and its application is often difficult. Black talks of accountors: bodies which hold regulators to account. She emphasizes the need to look at (1) their institutional position, including the amount of respect they attract and (2) their accountability capacity, in terms of resources. These, it seems to me, are two very helpful axes for charting the concept of accountability in different contexts. For example, one could say as a general matter that courts have a strong institutional position but limited capacity for holding others to account. Therefore, we must sometimes look to extra-judicial bodies.

In that regard, Mark Elliott's recent Ombudsmen, Tribunals, Inquiries: Re-fashioning Accountability Outside the Courts is also worth noting:

Courts play a prominent and significant role in holding public bodies to account in the UK, most obviously through the exercise of powers of judicial review. However, the accountability 'system' extends far beyond the courts, encompassing (among other institutions) tribunals, ombudsmen and inquiries into matters of public concern. This chapter argues that accountability is a protean concept, and that the accountability system must therefore exhibit appropriate diversity if accountability in all its relevant senses is to be secured. This raises questions about the balance and relationship between legal and political mechanisms for supplying accountability. It is argued that an increasing tendency to view the legal-judicial model as a paradigm places other accountability institutions at risk of inappropriate judicialisation. That trend, it is contended, must not continue unchecked if the accountability system is to remain suitably diverse.

Steering Charter Claims in the Right Direction

Williams v. British Columbia (Superintendent of Motor Vehicles), 2012 BCSC 1976 featured an unsuccessful argument that the respondent, the statutory decision-maker who follows up on road-side penalties administered by the provincial police force, had jurisdiction to grant Charter remedies.

Municipal Councillors: Bias and Legislative Activities

Decision-making by municipal councillors has garnered plenty of headlines in recent months due to the travails of Toronto Mayor Rob Ford (see my posts here and here, and my Financial Post op-ed).  The issues in Ford's case are principally ones of statutory interpretation. A recent decision of the Alberta Court of Appeal, Beaverford v Thorhild (County No. 7), 2013 ABCA 6, is a more traditional application of the common law rule against bias, although the presence of Facebook in the facts of the case gives it a certain novelty value.

I fear, however, that the Court got it wrong in finding bias in this case. It has been quite a while since the Supreme Court of Canada has addressed the rule against bias and this case may provide it with an occasion to do so.

Causation: Administrative-law style

I open with a warning: I find the Supreme Court of Canada's causation jurisprudence hard to fathom, so it is with some trepidation that I venture out to comment on Alberta (Workers' Compensation Board) v Alberta (Appeals Commission for Alberta Workers' Compensation), 2012 ABQB 733. The case is about an individual who contracted asbestos-related disease through his employment and who subsequently died of metatastic renal cell carcinoma.

Courts and Copyright: Some Thoughts on Standard of Review

My essay on the Supreme Court of Canada's copyright pentalogy will be published around Easter in a volume edited by Michael Geist, the working title of which is The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (see page 18 here).

You can download my paper here. Here is the abstract:

In June 2012, the Supreme Court of Canada decided five important copyright cases.

In doing so, it also introduced an innovation to the law of judicial review. In Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, a majority of the Court held that, even though the Copyright Board was interpreting its own statute (typically, a situation in which deference is appropriate), no deference would be paid to its interpretation of the scope of copyright.

For the majority, Justice Rothstein explained that the Copyright Board and the Federal Court of Canada have concurrent jurisdiction to deal with issues of copyright law. As the Copyright Board does not operate in a "discrete and specialized" administrative regime, deference to its decisions on matters of interpretation would be inappropriate. I argue that the new "shared jurisdiction" exception will lead to confusion. Clever counsel will doubtless try to stretch the Court's logic to other areas, such as competition and securities regulation. I further suggest that it was unnecessary to develop this exception, because the Court already possesses the doctrinal means of addressing the problems by which it was concerned.

My primary focus is thus relatively narrow, confined to technical questions of administrative law. However, I adopt a broader lens towards the end of this paper and suggest that Canadian courts ought to be more willing to accord deference to the decisions of the Copyright Board. Courts do not, in short, have the copyright on wisdom about intellectual property law.

I then conclude with some thoughts on the application of the general principles of administrative law in one of the other cases in the pentalogy, Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright). The serious disagreement between the majority and minority judges in that case casts light on an important issue in administrative law, the characterization of administrative decisions 

My original post from last year, in which I developed the arguments in the paper for the first time, is here.

Happy New Year

For those of you wondering where I have been, I have been partly resting on my laurels since my runner-up award at the Clawbies and partly plotting the overthrow of this year's winner in the Best Law Professor Blog category, ABlawg, the Calgary Law Faculty's blog.

Normal service should resume over the next couple of days, although my partner and I are in the process of buying a house (our first), which is proving to be very time-consuming. So, lower your expectations accordingly, please!