We traverse two linked avenues of
inquiry in this paper. One allows us to explore the possibility of using
judicial review doctrine to further substantive equality. The other permits an
exploration of how substantive equality can be achieved through the workings of
the administrative decision-making process. Our focus throughout is on the
principal actors in the area of education: provincial ministers and their civil
servants, school boards, principals and teachers.
Administrative
lawyers have a tendency to focus on the first avenue of inquiry: the doctrines
of judicial review are the focus of most teaching and scholarship on
administrative law. In its preoccupation with legality, rationality and
fairness,[1] judicial
review is undoubtedly important.
A British government handbook for civil
servants is entitled The Judge Over Your
Shoulder.[2]
The title captures an important idea. When administrative decision-makers
formulate policies and make decisions, theirs is not the only presence in the
room. A ghostly shadow is cast on their deliberations by the spectre of
subsequent review in the courts. With the ex
post check of judicial oversight ever possible, administrative
decision-making must conform to legal norms. Many individual decisions will be
taken with these norms in mind.[3]
Over
time, assuming appropriate oversight mechanisms, institutional culture must
move towards conformity with legal norms. Conformity cannot be taken for
granted, however. It may be slow in coming and there may be areas of
decision-making which are never exposed to the judicial microscope.
Nevertheless, in the absence of compelling evidence to the contrary, logic and
data suggest that judicial oversight must have some effect on administrative
decision-making.[4]
If nothing else, the norms embodied in judicial review doctrine provide
benchmarks against which administrative actors can measure their performance.
They have a reflexive quality.
Judicial review has a function, too, beyond the regulation of
interactions between individuals and administrative decision-makers. Judges are
public officials and the norms they develop and apply have a public quality.
Judicially imposed norms must closely track social values. This is not to say
that judges must respond slavishly to every twist and turn in public opinion.
Rather, the past and present of social values, read large, provide a framework
in which legal norms can be articulated.[5]
For these reasons, judicial review is rightly a focus of attention.
It ought not, however, to be the sole focus of attention. Decisions and the decision-making
processes that produce them will always be individuals’ first points of contact
with administrative law. Often, they will be the last. Lack of resources may
preclude an individual from seeking judicial review, and judicial doctrines of
justiciability may preclude judges from entertaining the merits of individual
cases.[6]
Placing too much emphasis on judicial review in the education context blithely
presupposes that courts can consistently conduct necessary oversight. Yet it is
more likely that judicial control will be exercised in fits and starts, if at
all in the case of lower-level decision-makers.
Moreover, when judicial review does take place, it does so at
one remove from the decision-making process. The intimacy of the relationship
between individual and administrative decision-maker has no equivalent in the
judicial forum, a point of evident importance in the context of the
relationship between vulnerable children and adolescents and those in positions
of authority.[7]
Where
relationships are informed by power imbalances, the consequences of failing to
respect the dignity interests of one of the parties can be devastating. Extra
burdens are placed on decision-makers, moral burdens which weigh whether or not
there is judicial or administrative oversight of their actions.
In addition, administrative policies may shape the exercise of
discretion and the development of the individual/decision-maker relationship.
This is hardly problematic: administrative policies serve important functions
of efficiency and certainty.[8]
But when “soft law” is framed and applied,[9]
other considerations should be borne in mind. If exercises of discretion and
decision-making procedures are shaped by soft law, it will affect individuals
and ought to be designed, then, in the knowledge that soft law serves individuals
and values other than simply efficiency and certainty. A focus on soft law is
especially appropriate in the education context, where instruments other than
binding legal rules significantly shape the decision-making environment:
curricula, policy directives and school board policies, to name but a few, are
of critical importance.
Finally, articulation of the values of administrative actors is
of great importance.[10]
Concerns of an institutional and human nature attend exercises of discretionary
authority. Decision-makers do not act in an institutional or moral vacuum; they
live and act by reference to “civil servants’ values”.[11]
As creatures of their environments, they can be expected to uphold
institutional norms. Administrative actors exercising discretionary authority
“build up sets of principles to guide them in the exercise of what is on paper
an entirely unfettered discretion”.[12]
In a similar vein, Dickson J. (as he then was) noted that knowledge, fairness
and integrity are important characteristics of those charged with administering
and implementing policy.[13]
As humans, they can also be expected to uphold moral norms. As living,
breathing creatures capable of reflection, we should also expect administrative
actors to act compassionately, in a way responsive to the individuals they
serve.[14]
Fairness in judicial review and policy guidelines is important, but fairness at
the heart of administration is vital.
Values, too, influence the exercise of discretion. Sometimes
those values are immanent in the statute; they can form part of the
“perspective within which a statute is intended to operate”.[15]
An example is Baker v. Canada (Minister
for Citizenship and Immigration).[16]
Here, an immigration officer’s decision denying an application for an exemption
on humanitarian and compassionate grounds was quashed, for the reasons he
presented indicated that his decision was “inconsistent with the values
underlying the grant of discretion”.[17]
As he was bound to “act in a humanitarian and compassionate manner”,[18]
his failure to do so vitiated the decision.
Charter values also permeate perspective. Indeed, administrative actors
must act consistently with those
values.[19]
Such is the importance of this edict that even where legislation precludes
consideration of Charter guarantees per se, administrative actors must still
take Charter values into account.[20]
And what are these values, to which all administrative actors — including
ministers, civil servants, school boards, principals and teachers — must have
reference? Referring to section 1 of the Charter, Dickson C.J.C. gave a helpful
précis:
The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.[21]
To invite reliance on Charter
values is not to invite opacity. Still less is it an invitation to palm
tree justice. Reasoned decision-making need not be sacrificed on the altar of Charter values. Decision-makers should be
guided by fairness, as we argue, but also by the edict that reasons for
decisions should “allow the reviewing court to understand why the tribunal made
its decision and permit it to determine whether the conclusion is within the
range of acceptable outcomes”.[22]
The Federal Court of Appeal has recently put the point very well, addressing a
related concern about an administrative tribunal’s inability to precisely
quantify factors it was required to take into account in reaching a decision:
When precise quantification is not reasonably possible for a given element, a rough estimate is to be preferred to a subjective judgement call. When neither a precise quantification nor a rough estimate is reasonably possible for a given element, then of course there will be a certain degree of discretion in attributing weight to any remaining qualitative [elements], but this discretion must be curtailed and limited by the principles of reasonableness. In other words, any weight given to the remaining unquantifiable qualitative effects must be reasonable, i.e., it must be supported by the evidence, and the reasoning behind the Tribunal’s weighting must be clearly articulated or otherwise discernable.[23]
Charter values are very important,
but their importance does not legitimate departures from appropriately rigorous
decision-making.
[1] Canada (Attorney General) v. TeleZone Inc, [2010] S.C.J. No. 62,
[2010] 3 S.C.R. 585, at para. 24 (S.C.C.).
[2] The Judge Over Your Shoulder, 4th ed. (London: Treasury Solicitor’s
Department, 2006).
[3] Given the diffuse nature
of administrative decision-making and its oversight, it would be too strong to
state that all decisions will be
taken with these norms in mind. See, e.g., Laura Pottie & Lorne Sossin,
“Demystifying the Boundaries of Public Law: Policy, Discretion and Social
Welfare” (2005) 38 U.B.C. L. Rev. 147.
[4] Lorne Sossin, “The
Politics of Soft Law: How Judicial Decisions Influence Bureaucratic Discretion
in Canada” in Marc Hertogh & Simon Halliday, eds., Judicial Review and Bureaucratic Impact: International and
Interdisciplinary Perspectives (Cambridge: Cambridge University Press,
2004) 129, at 158. Sossin cautions, however, that judicial review’s effect may
be felt in different ways in different settings.
[5] Jack Balkin, Living Originalism (Cambridge, MA:
Harvard University Press, 2011).
[6] See, e.g.,
Robert Summers, “Justiciability” (1963) 26:5 Mod. L. Rev. 530.
[7] See generally Geneviève
Cartier, “Administrative Discretion and the Spirit of Legality: From Theory to
Practice” (2009) 24 C.J.L.S. 313. But see Evan Fox-Decent, Sovereignty’s Promise: The State as Fiduciary (Oxford: Oxford
University Press, 2011).
[8] Nabors Canada Ltd. v. Alberta (Appeals Commission for Alberta Workers’
Compensation), [2010] A.J. No. 1097, 324 D.L.R. (4th) 747, at para. 18
(Alta. C.A.).
[9] Lorne Sossin has
provided a helpful definition of “soft law” as encompassing “non-legislative
instruments such as policy guidelines, technical manuals, rules, codes,
operational memoranda, training materials, interpretive bulletins, or, more
informally, through oral directive or simply as a matter of ingrained
administrative culture” (“Discretion Unbound: Reconciling
the Charter and Soft Law” (2002) 45 Can. Pub. Admin. 465, at 466-67).
[10] See generally D.J.
Galligan, Discretionary Powers: A Legal
Study of Official Discretion (Oxford: Clarendon Press, 1986).
[11] John Willis, “The McRuer
Report: Lawyers’ Values and Civil Servants’ Values” (1968) 18:4 U.T.L.J. 351.
[12] John Willis, “Foreword” in
John Willis, ed., Canadian Boards at Work
(Toronto: MacMillan, 1941), at 71.
[13] Fraser v. Canada (Public Service Staff Relations Board), [1985]
S.C.J. No. 71, [1985] 2 S.C.R. 455, at 470 (S.C.C.).
[14] See, e.g., Lorne Sossin,
“Public Fiduciary Obligations, Political Trusts, and the Equitable Duty of
Reasonableness in Administrative Law” (2003) 66 Sask. L. Rev. 129.
[15] Roncarelli v. Duplessis, [1959] S.C.J. No. 1, [1959] S.C.R. 121, at
140 (S.C.C.). See, e.g., Chamberlain, supra, note 28, at
para. 71.
[16] [1999]
S.C.J. No. 39, [1999] 2 S.C.R. 817 (S.C.C.) [hereinafter “Baker”].
[17] Id., at para. 65, per L’Heureux-Dubé J.
[18] Id., at para. 66, per L’Heureux-Dubé J.
[19] Doré, supra, note 3, at para. 24, per Abella J.
[20] United Food and Commercial Workers, Local 401 v. Alberta (Attorney
General), [2012] A.J. No. 427, 522 A.R. 197, at para. 42 (Alta. C.A.).
[21] R. v. Oakes, [1986] S.C.J. No. 7, [1986] 1 S.C.R. 103, at para. 64
(S.C.C.) [hereinafter “Oakes”].
[22] Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador
(Treasury Board), [2011] S.C.J. No. 62, [2011] 3 S.C.R. 708, at para. 16
(S.C.C.).
[23] Tervita Corp. v. Commissioner of Competition, [2013] F.C.J. No.
557, 446 N.R. 261, at para. 148 (F.C.A.).
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