Friday, 28 June 2013

Administrative Notice: Social Science and Common Sense

A long-standing issue in administrative law is the extent to which decision-makers can take "judicial notice" of information about the world. Decision-makers are selected typically on the basis of their expertise. But this expertise is liable to be wide-ranging. Sometimes, they will drawn on their background knowledge to support a decision. In such circumstances, however, the individual who comes out on the losing side may well feel hard done by, for not having had a chance to prepare a considered response to the information relied upon.

Two recent Canadian Court of Appeal cases illustrate the issue well.

In Peel Law Association v. Pieters, 2013 ONCA 396,* a complaint of discrimination was made to the Ontario Human Rights Tribunal against a law librarian who had asked a group of black lawyers for identification. The decision-maker relied on social science introduced by a litigant in a previous case to infer a nexus between the lawyers' characteristics and the alleged discrimination. No opportunity was given to the librarian to address the social science.

Juriansz J. held that the references to social science here were permissible:
[120]   I accept the respondents’ contention that a tribunal needs to exercise care in taking judicial notice of social science not introduced in evidence before it. The parties do not have the opportunity to challenge the matter judicially noticed and it may be wrong. At the same time, social science can deepen the understanding of interactions between individuals generally, thus assisting the adjudication of a particular case. Balance and judgment is necessary to ensure that judicial notice of social science not in evidence does not result in unfairness.
[121]   In this case, I am not persuaded that any unfairness resulted from the Vice-Chair’s reference to Nassiah. The reference did not affect his disposition of what I regard to be the main issue in the case—whether the appellants’ race and colour were factors in their selection for questioning. At most they played a minor role in his finding that their race and colour were factors in the manner in which they were questioned...
[123]   Finally on this point, I note that neither the Divisional Court nor the respondents expressed any issue with the actual proposition the Vice-Chair drew from Nassiah. The proposition that implicit stereotyping can affect the manner in which individuals continue to deal with others after an encounter begins does not seem to me to be a matter that would provoke much controversy.
Clearly, the decision-maker here stepped very close to the line. Only the limited nature of his reliance on social science saved him from crossing it.

A similar issue arose in the human rights context in Silver Campsites Ltd. v. James, 2013 BCCA 292. Again, the complaint was of discrimination and the Tribunal found in favour of the applicant. An award of damages was made for injury to the applicant's dignity, feelings and self-respect. However, the applicant never testified. Could a finding that his dignity, feelings and self-respect were injured legitimately be made in the absence of testimony from the applicant on these subjective issues?

Harris J.A. held that the Tribunal had acted appropriately:
[37]        First, it is clear that the Tribunal was entitled to take judicial notice of the fact that denying a mentally disabled man, who had lived independently, access to stable housing in which he intended to live independently, would cause compensable injury to his dignity and feeling of self-respect.  Taking notice of these facts is consistent with the principles established in cases such as Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, and Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143.  In any event, reaching such a conclusion is simply common sense and does not involve assumptions and speculation.
[38]        Simply put, the conclusions drawn by the Tribunal are inferences that the Tribunal was entitled to draw from the proven facts.  Those facts support the conclusion that there was discrimination causing compensable injury.  Reaching such conclusions falls well within the proper role of the Tribunal and is consistent with the legislative purpose of the Code.
Common sense, leavened by an appreciation of the role of human rights tribunals, permissibly influenced the outcome.

I would be more comfortable with these results if it were clear that administrative decision-makers should explain and justify their taking of "judicial notice". Applying the doctrine in its common-law form would not be appropriate, but decision-makers are obliged to evidence justification, transparency and intelligibility in their reasons. Failing to explain and justify "judicial notice" in terms of the facts before them and the decision-making context is problematic and may be a solid basis for judicial intervention.

* I was at Lerners LLP, counsel for Peel Law Association, while the case was argued and decided by the Divisional Court. I took no active part in the file, though I followed it and the proceedings with interest.

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