Lawson and Kam on the Development of Chevron Deference

In a mammoth recent paper on Chevron deference, Gary Lawson and Stephen Kam trace the origins of the doctrine: Making Law out of Nothing at All (2013), 65 Admin Law Review 1 (draft). The paper is ably reviewed on Jotwell by Linda Jellum.

What I found most striking, in view of Canadian courts' desire to embrace Chevron deference, is the narrative Lawson and Kam set out. Before Chevron, much turned on the distinction between interpreting and applying law. Interpretation was a matter for courts; application for administrative decision-makers. But these were presumptions, rebuttable by reference to a "mélange of factors, with no clear metric for determining how much or when those factors weigh in the balance".

This is eerily similar to the framework established by  the Supreme Court of Canada in Dunsmuir v. New Brunswick. In Lawson and Kam's telling, American courts were then pushed towards the beguiling simplicity of Chevron. Yet, subsequently Chevron itself has been modified to ensure that courts take into account a range of contextual factors in calibrating the appropriate amount of deference (though this has not pleased everybody). The Americans went from law/fact to rebuttable presumptions to Chevron to context.

Is this not a cautionary tale for Canadian courts? A "two-step" approach, which relies on "clarity" and "ambiguity" seems as if it would simplify an approach based on rebuttable presumptions (as it must have seemed to American judges in the 1980s). Appearances can be deceptive, however. From the American experience we can perhaps deduce that adopting Chevron would simply lead to a further set of problems. Ironically, if Canada were eventually to follow the American lead in focusing on context, the result would be something like the pragmatic and functional analysis abandoned in Dunsmuir.

Finally, as Lawson and Kam remind us, Chevron's simplicity is only skin deep: "To this day, we still do not have consensus on what it means for the meaning of a statute to be 'clear'". Chevron may just be jurisdictional error on steroids.

David Miranda and the Constraints of the "Prescribed by Law" Requirement: Miranda v. Home Secretary, [2014] EWHC 255

Laws L.J. delivered the judgment of the Divisional Court yesterday in Miranda v. Home Secretary, [2014] EWHC 255, a judgment explained by Rosalind English and Carl Gardner, and aspects of which have also been discussed by Fiona de Londras and Colin Murray. Miranda, en route to Berlin to share confidential information with a journalist, was detained in Heathrow Airport under Schedule 7 of the Terrorism Act because officers wanted to question and search him. He challenged the legality of the detention, raising unsuccessful arguments based on freedom of expression and use of power for an improper purpose.

In the course of his judgment Laws L.J. threw a couple of digs, one at the UK Supreme Court and one at the European Court of Human Rights. Mark Elliott adjudges the dig aimed at London to have hit its mark, but in my view Laws L.J. at best grazed the cheek of Strasbourg.

Deference outside a Decision-Maker's 'Home' Statute: Bernard v. Canada (Attorney General), 2014 SCC 13

There is another aspect of Bernard v. Canada (Attorney General), 2014 SCC 13 (discussed here) that is of general interest. When the matter was remitted to it, the Public Service Labour Relations Board had to address whether its order that an employer had to disclose home contact information of non-union employees was compatible with privacy legislation. In particular, it had to ask whether disclosure to the union would be consistent with "the purpose for which the information was obtained" as per s. 8(2)(a) of the Privacy Act. But the Privacy Act is not something that the Board encounters on a regular basis. Was its interpretation nonetheless entitled to deference?

Giving Directions to Administrative Decision-Makers (for Self-Represented Litigants): Bernard v. Canada (Attorney General), 2014 SCC 13

Bernard v. Canada (Attorney General), 2014 SCC 13 represents the end of a long struggle for Ms. Bernard, an employee of the Canadian revenue service who challenged -- without counsel -- her employer's ability to send her personal contact details to a union. A decision ordering disclosure was ultimately upheld as reasonable and constitutional but there was an interesting divergence of views on the Supreme Court of Canada about the jurisdiction of an administrative decision-maker to which a matter has been remitted with directions.

Laverne Jacobs on "Grounded Impartiality"

The standard for impartial decision-making in administrative law continue to pose difficulties in practice. Here is an interesting new paper from Laverne Jacobs, "From Rawls to Habermas: Towards a Theory of Grounded Impartiality in Administrative Law":

At the same time that Canadian public law jurisprudence has grappled with some very key cases on bias, a vibrant debate has also raged over the meaning and scope of the notion of impartiality within political and moral philosophy. Spurred by Rawls’ view of liberalism and culminating in deliberative democracy, this debate evolved over a span of more than four decades, yet, rarely, if at all, is this philosophical literature referred to in the public law jurisprudence dealing with impartiality. This paper inquires into whether the debates surrounding impartiality in political and moral philosophy and those in Canadian public law share common ground. In what ways might this literature and jurisprudence speak to one another? The author argues that knowledge of the two debates challenges us to reconsider the judicial methods by which decision-making impartiality is established. This is particularly so in administrative law. The author proposes a theory of grounded impartiality to be used in Canadian administrative law. The theory requires courts and administrative actors to pay close attention to factors such as administrative actor provenance, shared and local understandings, and the possibility for genuine discourse, to allow for more well-informed, meaningful, and transparent decision-making about allegations of bias. While these factors have been advocated by certain political and moral philosophers as an ideal means for assessing an individual’s claim to the good life, a parallel approach has faced ambivalent reception in Canadian administrative law impartiality jurisprudence. This article will be published in the next issue of the Osgoode Hall Law Journal (51:2).

One of the most intractable difficulties in this area is the assumption that the so-called 'reasonable observer' is actually a real person. As has been argued and as Jacobs suggests (though she does not condemn the assumption outright) in her paper, the 'reasonable observer' is purely a judicial construct.

Accordingly, the appropriate question for a court to ask when a bias problem arises is not, "Would the hypothetical reasonable person think the decision-maker was not impartial?" but "Should the decision-maker recuse herself?" A similar problem sometimes arises with respect to the test for unreasonableness in substantive review. Again, the question should never be, "What would a hypothetical reasonable decision-maker have done or not done?" but rather, "Should this decision be struck down for unreasonableness?"

Answering these should questions is not easy. Constructs of 'bias' and 'reasonableness' must be developed. Jacobs suggests that five contextual factors may assist courts in dealing with impartiality claims. However, abandoning the pretense that hypothetical reasonable persons have any role to play in administrative law adjudication is a necessary pre-condition to a meaningful contextual inquiry. I am not sure that Habermas, Rawls et al have a crucial role to play, but the effort to integrate their insights is interesting.

An Intervention on Interventions: Canada v. Pictou Landing First Nation, 2014 FCA 21

Stratas J.A. has suggested a new set of guidelines to govern applications for intervener status before the federal courts: Canada v. Pictou Landing First Nation, 2014 FCA 21.

Here they are:

I.                 Has the proposed intervener complied with the specific procedural requirements in Rule 109(2)? Is the evidence offered in support detailed and well-particularized? If the answer to either of these questions is no, the Court cannot adequately assess the remaining considerations and so it must deny intervener status. If the answer to both of these questions is yes, the Court can adequately assess the remaining considerations and assess whether, on balance, intervener status should be granted.

II.               Does the proposed intervener have a genuine interest in the matter before the Court such that the Court can be assured that the proposed intervener has the necessary knowledge, skills and resources and will dedicate them to the matter before the Court?

III.            In participating in this appeal in the way it proposes, will the proposed intervener advance different and valuable insights and perspectives that will actually further the Court’s determination of the matter?

IV.            Is it in the interests of justice that intervention be permitted? For example, has the matter assumed such a public, important and complex dimension that the Court needs to be exposed to perspectives beyond those offered by the particular parties before the Court? Has the proposed intervener been involved in earlier proceedings in the matter?

V.               Is the proposed intervention inconsistent with the imperatives in Rule 3, namely securing “the just, most expeditious and least expensive determination of every proceeding on its merits”? Are there terms that should be attached to the intervention that would advance the imperatives in Rule 3?

This represents an adjustment to the existing approach, as Stratas J.A. explains, and is in line with the liberal approach to intervener status taken by Canadian courts in recent times. Though the space and time accorded to interveners is often limited, the courthouse door is most certainly unlocked.

On the merits, the applications were granted in the present case:

[32]           Although the motions to intervene were brought well after the filing of the notice of appeal in this Court, the interventions will, at best, delay the hearing of the appeal by only the three weeks required to file memoranda of fact and law. Further, in these circumstances, and bearing in mind the fact that the issues the interveners will address are closely related to those already in issue, the existing parties will not suffer any significant prejudice. Consistent with the imperatives of Rule 3, I shall impose strict terms on the moving parties’ intervention.

Staying out of the Wilderness of Single Instances: Some Thoughts on Context and Procedural Fairness

At the centre of R. (L.) v. West London Mental Health NHS Trust, [2014] EWCA Civ 47 was a man with significant mental health challenges. In a learned judgment, Beatson L.J. analyzed the requirements of the common law of procedural fairness and made some interesting observations about the challenges the common law poses for reviewing courts.