Monday, 28 October 2013

Judicial Review and Administrative Decision-making

I am finalizing the proofs of my article (with Angela Cameron) on Charter Values and Substantive Equality (downloadable here). Some extracts might be of particular interest to readers of this blog. Here is the first of them, the section entitled "Judicial Review and Administrative Decision-making".

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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