Wednesday, 29 May 2013

Boilerplate Reasons

The President of France, M. Hollande, has recently suggested that where the administration fails to reply to individual decisions silence should be taken as indicating consent: "dans de nombreux domaines, le silence de l’administration vaut décision d’acceptation et non plus décision de rejet". 

The reasoning is obvious: citizens deserve responses from the machinery of the state; and they deserved reasoned decisions. Hollande's vision may be utopian, however. In our world, the law of unintended consequences poses important difficulties. Imposing a duty to respond, or a duty to give reasons for decisions, is all very well. But overworked officials may simply resort to boilerplate in order to discharge their duties. Judicious judicial responses then become necessary.

Consider Petrowski v Horse Racing Alberta, 2013 ABQB 267. Here, the applicant was suspended for doping a horse. In its decision, the disciplinary panel had used a previous decision with similar facts as a template (at para. 19). This did not violate the duty of fairness: minimal reasons are still reasons (at paras. 19-20). However, it did undermine the reasonableness of the decision, because the panel had not grappled with the facts of the case:
[25]            I conclude that the Reasons do not establish that the Tribunal grappled with the substantive live issues. Rather, it appears to have simply used a template of earlier unrelated reasons, listed the evidence heard by it, summarized Ms. Petrowskis submissions, and then implemented a decision based solely on consistency. It provided no analysis or consideration of the evidence lead by Ms. Petrowski on why the guidelines should not be applied in her particular circumstances. I conclude that the decision was unreasonable.
Of course, judicial oversight will not be available in all cases. Reliance on administrative boilerplate and resort to box ticking is probably inevitable and maybe incurable.

Fully reasoned decisions, reached rapidly, represent one end of a spectrum. In a world of limited resources, one should not expect to find most decisions at this end. M. Hollande's shock treatment may prove worse for individuals concerned than the disease of administrative inaction.

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