Friday, 20 June 2014

Stare Decisis in Administrative Law

Here is a problem for deferential approaches to judicial review: what about an administrative decision that is a reasonable resolution of a particular case but which is reached by flawed logic? If the flawed logic is not sanctioned, it remains on the books and may influence future administrative decision-makers: indeed, failing to follow a previous decision might be a basis for judicial sanction.

A good example is the Irving Paper case that made it to the Supreme Court of Canada (discussed here). A labour arbitrator made a distinction between dangerous and ultra-dangerous workplaces. Only in ultra-dangerous workplaces could an employer unilaterally impose random alcohol tests. But this logic is surely flawed: intoxicated employees can cause harm to themselves and others in both dangerous and ultra-dangerous workplaces. The distinction is unwarranted. And left unsanctioned it might infect arbitral decision-making for years to come.

I suspect that courts often intervene in just such instances because they are unwilling to sanction flawed logic. Irving Paper was a 5-4 decision. The Alberta (Education) case (discussed here) involved another dodgy chain of reasoning and was also decided 5-4.

What is a court to do in such instances? Deference suggests that reviewing courts should wring their hands -- and then wash them: the reasonable decision should be upheld and the flawed logic should be worked out through the administrative process.

Arbitrators are no less canny than courts in recognizing problematic decisions and distinguishing them -- indeed, they may be more capable of doing so while also respecting the overall fabric of the labour law system.

Here it is necessary, I think, for both courts and administrative decision-makers to treat stare decisis with nuance. Courts should not insist on the rigid application of judicial principles of consistency to administrative decision-making; rather, they should take a more flexible approach, permitting decision-makers to find innovative means of ensuring consistency but also recognizing that when decision-makers go astray, it will generally be more efficient if corrections are made at the administrative level.

For their part, administrative decision-makers should not slavishly follow previous decisions and should remain relatively open to changing tack if the circumstances require it. Mutual adherence to nuance is necessary: administrative decision-makers should reassure courts that they respect the importance of consistency; and courts should reassure administrative decision-makers that they will not intervene to effect a change of course that may occur organically.

As Davidson and Leib put it in a recent article on decision-making by the Office of Information and Regulatory Affairs, "Regleprudence":

Consistency  and   transparency  can   thus   form  a   balance   and   an equilibrium that, in some aspects of OIRA’s work, suggest that both reason- giving and respect for  precedent must be enhanced, while in other contexts, clear articulation with the right process may  be enough to justify change.
I think Davidson and Leib over-emphasize the difference between judicial and administrative approaches -- both, after all, subscribe to and try to give effect to core values such as the rule of law, principles of good administration, democracy and separation of powers -- but the nuance they urge seems quite appropriate.

NOTE: Thanks to Nicolas Lambert (Moncton) for discussion. 

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