Presidential and Prime Ministerial Administration

President Obama's apparent determination to wield executive power to achieve his ends has provoked much discussion this week.

The tendency for leaders to use various methods other than legislation to fulfill their objectives should be familiar to Canadian readers. Minority governments in parliamentary systems are in much the same place as an elected President who does not control the legislative branch(es) of government. They have to get their way through other means.

Quebec's current minority administration is a good example. A major plank in its electoral agenda was to cancel a proposed fee hike for university students. It did so, but by decree (executive order, if you prefer) rather than by legislation, because it would not have commanded a majority in the Assemblé Nationale. (The next time someone has enough support to hike tuition in Quebec, they probably should do it by legislation!)

As has been noted in the context of President Obama, there are many ways for the executive to get its way, ranging from formal orders all the way down to informal pressure. The channels of government influence are often murky. Consider the Quebec government's approach to the Conseil du statut de la femme, an independent agency which advises on matters relating to equality rights. Last year, the Conseil announced that it was opposed to the government's proposed 'Secular Charter'. The government appointed four new members (while insisting that the Conseil was not independent because the word "independent" does not appear in its constitutive statute). Lo and behold, the Conseil recently announced its support for the Charter!

So not only do the available means vary greatly, but they may be relied upon by Prime Ministers as much as by Presidents.

How to Avoid "Tortifying" Regulatory Law: A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12

The Supreme Court of Canada this morning waded into the mire of the "economic torts", a grab bag of common law causes of action that impose liability for (primarily) nasty behaviour in the marketplace. Up for discussion in A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12 was the "unlawful means" tort, though as Cromwell J. pointed out, the economic torts form such a morass that courts and commentators cannot even identify the appropriate label for this particular creature (at para. 2).

The UK Supreme Court Takes a Dim View of Procedural Review

The UK Supreme Court released a very important decision last week: R. (HS2 Action Alliance) v. Secretary of State for Transport, [2014] UKSC 3. David Hart Q.C. has an excellent overview here, while Mark Elliott and Adam Tomkins have commented incisively. The importance of the decision lies in the intersection of domestic constitutional principles and the edicts of European Union law. I will outline this intersection and then note a tension between courts' reluctance to scrutinize the quality of the legislative process and the increasing importance of evidence to judicial review of official action.

Net Neutrality, Law and Policy: a Modest Comment on Verizon v. FCC

I am somewhat late to last week's D.C. Court of Appeals decision in the Net Neutrality case: Verizon v. Federal Communications Commission.  In brief, the Court struck down the Federal Communications Commission's "Open Internet Order", which imposed restrictions on how broadband providers may interact with providers of services like Netflix, Google and Youtube (so-called "edge providers"). For conflicting views on the merits of the underlying policy, see Richard Epstein and Tim Wu.

Reflections on State Liability: Judge Posner on Judicial Verbosity

One of the issues that has bedevilled common law courts is the law of state liability: when does official misconduct give rise to a right of action in damages? Various answers have been given. Usually there is a threshold test of proximity, related in some way to the statute that empowers the decision-maker. And there is usually a blanket exclusion of liability in some circumstances, for what are sometimes described as non-justiciable or policy decisions.

In his recent book, Reflections on Judging, Richard Posner takes aim at the problem of complexity. Some of this complexity is external, caused by technological change for example. But much of it is internal to the legal system, created by lawyers and judges in order to mask rather than to manage external complexity.

The Weak Procedural Rights of the Disappeared

The applicant in Canada (Citizenship and Immigration) v. Mudalige Don, 2014 FCA 4 jumped ship in Oshawa. Twelve days elapsed before he reported himself to the authorities and claimed refugee status. In the interim, a removal order had been made against him. Did he have any procedural protections prior to the making of the removal order?

Becoming a Member of a Regulated Profession: the Barreau du Québec and the "Nadon Reference"

This week the Supreme Court of Canada heard the "Nadon Reference". The case involves, at least, whether judges from the federal courts can be appointed to the three 'Quebec seats' on the Court (see here for background).

One of the issues that has been around for a while and arose again at the oral hearing is whether a federal court judge could circumvent any limits currently imposed by the Supreme Court Act by resigning from the bench, rejoining the bar and then being appointed as an "advocate" rather than as a "judge". My view is that, depending on the circumstances, this would be unlawful: see here at p. 9, note 25.

Unfortunately, none of the provincial bar associations, including the Barreau du Québec, intervened in the case. The Court thus did not receive a detailed answer to the question about how retired judges can rejoin the bar.

On Friday, it emerged that the Quebec Branch of the Canadian Bar Association had made a motion to the Association to intervene in the case. They proposed taking the position that federal court judges are not eligible for elevation to the three 'Quebec seats'. The details are available here, from p. 42. The motion will apparently be discussed at the Association's mid-winter meeting, in mid-February. Now that the hearing has been held, it is unlikely that the Association will take a position publicly.

However, the Quebec Branch attached a detailed memorandum produced by a team of McCarthy Tétrault lawyers led by Simon Potter, a former President of the Association.

In it, they include a discussion of the rules which govern judges' re-entry to the Barreau du Québec:

First, there is no right to re-join the Barreau after ceasing to hold office as a judge. A former judge can ask to be reinstated through the same process followed by other former lawyers. The application must be made 45 days before entry to the bar is sought, and in examining the application, the executive committee will assess whether the applicant possesses “the required moral character, conduct, skills, knowledge and qualifications to be a member in good standing of the Bar”. There is no promise of automatic re-admission, especially for those who have not practiced in the civilian system for many decades.

Second, even if it could be said that judges are never refused re-admission, that is the decision of the Barreau alone. Parliament chose to rely on membership in the Barreau or the Quebec judiciary as a proxy for knowledge of civil law. If the Barreau chooses to re-admit a Federal Court judge after decades of absence, then Parliament will rely on that stamp of approval. Parliament has decided that the Barreau is best placed to measure a lawyer’s civil law knowledge (at pp. 54-55, footnotes omitted).

I have not blogged about the case for a while. My submissions to the Senate Standing Committee on Legal and Constitutional Affairs were heavily relied on by several of the interveners, and, in any event, nothing I have read or seen since composing those submissions has changed my position(s) on the questions before the Court. But the Potter memorandum is very useful and should not be consigned to the potter's ground!

Publish or Be Damned

A troubling controversy is emerging about the decision of a couple of federal adjudicative tribunals, those charged with social security and refugee appeals, to refuse to publish all of their decisions. Those who regularly represent clients in these appeals are complaining.

Governmental Contracting, Procedural Fairness and Fundamental Freedoms

As a general rule, governments cannot and should not be required to fund speech or activities with which they do not agree. An organization committed to perpetuating inequalities between men and women, or which decries homosexuality as sinful, can lawfully be shunned. But should such an organization, especially one which previously received government funding, be entitled to some procedural protections before a decision is made to refuse to contract with it on the basis of its speech or activities?

Fettering of Discretion and the Reasonableness Test

In Canada, a global reasonableness test is supposed to be applied in the review of administrative decisions, even where the allegation is that the decision-maker abused its discretion. The Supreme Court said as much in 2003 (see paras. 22-25).

But some of the traditional grounds of review for abuse of discretion fit uneasily under the general rubric of reasonableness. Bad faith is one: surely a decision taken in bad faith is objectionable per se, with no need to ask whether the bad faith was unreasonable (if that question even makes any sense!).

Conseil d'État -- Comedians Have no God-Given Right to Engage in Hate Speech

Much ink has been spilled over the Conseil d'État's decision yesterday to maintain a ban on a performance by comedian Dieudonné M'Bala M'Bala. M'Bala M'Bala is said to be anti-semitic and is highly controversial. Concerned about public safety, a municipal official in Nantes issued an order banning M'Bala's planned a performance last night. On an application to it by the Interior Minister, the Conseil d'État, the body that sits atop the French administrative structure, concluded in a typically short decision that the ban was lawful.

Unthinking Thinking Like a Lawyer: the Struggle for Deference in Canada

This is the draft title of a book chapter I have prepared for a forthcoming collection on substantive review.

I have a draft of the chapter which I am happy to circulate to those who are interested in commenting on it. Feel free to email me: paul dot daly at umontreal dot ca.

Here is the abstract:

From their first exposure to law in university, through to their days in legal practice, lawyers understand that legal questions have ‘right answers’ which it is the role of legal experts to provide. Convincing judges that in some instances administrative decision-makers should be trusted to provide the answers is difficult. Affording curial deference requires judges to pull against the current of years of legal training.

It is no surprise then that in pursuing a deferential course to judicial review of interpretations of law, the Supreme Court of Canada has repeatedly been buffeted by traditionalist storms pushing it towards a more interventionist course. This even though the Court has been to the fore in recognizing that curial deference is compelled by the combination of legislative choice and relative institutional competence.

An early deferential approach was the concept of error of law within jurisdiction, but it was thwarted by a broad conception of jurisdictional error. Next, judges were admonished to exercise caution before identifying provisions as “jurisdictional”. Solely attitudinal in nature, this approach failed to shift the interventionist attitudes inculcated by law schools and years of legal practice.

Hence the development of the “pragmatic and functional analysis”, a multi-factor test designed to require justification for judicial intervention in terms of legislative intent. Only those questions the legislature intended to reserve the courts should be treated as “jurisdictional”. Yet again, however, interventionist attitudes prevailed. Questions that would traditionally have been seen as jurisdictional had an almost magical capacity to attract judicial intervention, the multi-factor test notwithstanding. And these questions were sometimes “segmented”: the jurisdictional aspects of decisions were hived off and subjected to more intense scrutiny.

Now, the Court directs that interpretations of decision-makers’ home statutes should be overturned only if unreasonable. Even here, interventionist winds have blown courts off the deferential course charted by the Court. The reasonableness of administrative interpretations of law is adjudged by reference to judicial principles of statutory interpretation, such that little separates modern reasonableness review from prior interventionist approaches.

Tribunal Independence: Ron Ellis -- Unjust by Design: Canada's Administrative Justice System

Having worked at the tribunal coalface for many years, Ron Ellis is very well placed to comment on the independence of Canada's administrative tribunals. In Unjust by Design, he eviscerates the current system and draws out a road map for reform. The book is fascinating and well worth reading in full. I will limit myself to a brief summary and two remarks.

Can there be too much Standard of Review in Canadian Administrative Law?

When I was on the job talk circuit a couple of years ago, an eminent professor confessed that s/he had only half paid attention to my presentation, noting that s/he had stopped paying attention to Canadian administrative law about 20 years ago and was satisfied that s/he had missed nothing: "Obviously you are having the same argument that scholars were having two decades ago". And from time to time one hears sighs, even from administrative-law aficionados, accompanied by moans of "Oh no, not the standard of review again".

Internal Standard of Review: A Promising B.C. Decision

I have posted before about the standard of review where an administrative decision-maker reviews another decision-maker: see especially here and also here and here. There are two important matters, in my view. First, the appellate administrative decision-maker is not limited to a choice between a full de novo hearing and a judicial-review type proceeding: there is rather a spectrum of options created by the interaction between the wording of the legislation and the substantive characteristics of the respective decision-makers. Second, a reviewing court should defer to the appellate administrative decision-maker on its choice.