Thursday, 14 March 2013

Delegating Investigative Functions

A well-known rule of administrative law is delegatus non potest delegare: the beneficiary of a statutory power cannot delegate its exercise. This is only a rule of construction, though, and is subject to the famous Carltona exception, pursuant to which civil servants can act in the name of a minister named in a statute.

A more modern problem for the rule against delegation is the contracting out of government functions to third parties. Something along these lines occurred in Canadian Union of Public Employees (Airline Division) v. Air Canada, 2013 FC 184.

The union had made a complaint to the Canadian Human Rights Commission about sex discrimination at Air Canada. The Commission hired an outside party to investigate. Neither party complained (although the airline had complained about a previous outside party). 

Once the outside party filed its report, in which it concluded that there was no evidence of discrimination, the Commission invited submissions from both parties and ultimately dismissed the complaint. 

Mactavish J. characterized the issue not as one involving the rule against delegation, but rather, a question of statutory interpretation. For her, the Commission's ability to contract out its investigative functions turned on the meaning of ss. 32 and 43 of the Canadian Human Rights Act. Section 32(2) allows the Commission to "enter into contracts" with outside parties for "specific projects", while s. 43 allows it to "designate a investigate a complaint".

Here, the contracting out of the investigation was permissible. First:
[52]           It is the Commissioners that make up the Commission who are statutorily mandated to decide whether human rights complaints are dismissed, referred elsewhere, or sent to the Canadian Human Rights Tribunal for a hearing: section 44 of the Act. There is no suggestion that the Commissioners did not carry out their statutory responsibilities in this regard. Subsection 32(2) specifically empowers the Commission to hire contractors to advise and assist in the exercise of those powers. That is what occurred here.
Strictly speaking, there was no delegation of functions as such. Rather, the Commission exercised a statutory power to engage outside parties.

As for the Commission's power to designate an investigator:
[55]            It is noteworthy that subsection 43(1) of the Act states that the Commission may designate a person to conduct an investigation. It does not state that the Commission must designate a Commission employee to do so. Nor does it distinguish between natural and corporate persons, and, in accordance with the provisions of section 35 of the Interpretation Act, R.S.C. 1985, c. I-21, the word “person” in a statute is to be interpreted to include a corporation.
The union had a series of other arguments, none of which impressed Mactavish J. The application was dismissed.

I am intrigued that the rule against delegation made no appearance in the judgment. I appreciate that the Commission did not delegate its ultimate decision, but it surely delegated some of its functions. The presumption is probably rebutted by the wording of the relevant statutory provisions, but it seems to me that it should have been given some weight by Mactavish J. in her analysis.

Another interesting aspect (solely from a Canadian point of view) is that Mactavish J. suggested (at para. 43) that the standard of review should be reasonableness, given that the Commission was interpreting its governing statute and should therefore be accorded deference. I am not aware of any authority on the delegation of functions and standard of review. I had thought that a standard of correctness might have applied, as is the case with fettering of discretion (see my post here). With both delegation and fettering arguments, the whole point is that a statutory power has not been exercised; if no power has been exercised, there is no need to conduct any standard of review analysis.

But Mactavish J.'s approach suggests that my understanding of the Canadian position might be wrong. Her logic is that a decision to delegate requires a decision by a statutory decision-maker and, at least implicitly, an interpretation of its governing statute. The same is true, I suppose, of fettering discretion. There is plenty to commend this in principle: leaving particular grounds of review out of the otherwise comprehensive standard of review analysis does not make a great deal of sense. Mactavish J.'s approach provides some logic to underpin that argument.

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