More on Being a Fraud

I managed to be inadvertently provocative on this subject last time out, with Michael Greve failing to catch my clin d'oeil towards Akhil Amar's anguished declaration that if Obamacare were turned to dust by the U.S. Supreme Court his whole life would be a fraud. In any event, Greve has now explained in some more detail his skepticism about administrative law.  This has prompted some (rambling) reflection on my part.

Medical Marijuana and Fettering Discretion

One of the cardinal principles of administrative law is that a decision-maker should never fetter his or her discretion. A recent case involving a claim for reimbursement for medical marijuana illustrates the principle nicely: Heilman v The Workers’ Compensation Board, 2012 SKQB 361.

Of prerogatives, rules and guidance

The UK Supreme Court decided two very interesting immigration cases the week before last, touching on two very interesting issues.

Principles of (European) Good Administration

The Working Group on EU Administrative Law of Parliament's Committee on Legal Affairs recently reported on the desirability of an EU-wide code of administrative procedure along the lines of America's Administrative Procedure Act (or Ontario's Statutory Powers Procedure Act).

Human Rights Remedies and Administrative Bodies

Unlike many (perhaps most?) other countries, Canada allows administrative bodies to make non-binding interpretations of constitutional provisions and to grant remedies for human rights violations by state actors.

A Successful Closed-Mind Argument in the Citizenship Setting

A basic principle of administrative law is that a decision-maker must approach its decisions with an open mind. Demonstrating that a decision-maker had a "closed mind", however, is extremely difficult. A decision-maker bent on refusing an application come what may will, if clever enough, keep his or her prejudices to him or herself.

Changing Policy to Reflect Policy? Be Careful

As a Q.C., Rabinder Singh appeared in some of the most significant public law cases before the superior courts of England and Wales.

He was appointed to the bench in 2011. From the High Court, he recently issued an interesting judgment in H.A. (Nigeria) v. Home Secretary, [2012] EWHC 979 (Admin), a case concerning the lawfulness of the detention of an asylum seeker who suffered from mental disorders and was detained in a series of Immigration Removal Centres.

Of greatest interest is Singh J.'s treatment of an administrative policy which had been developed by the Home Secretary. The wording of the policy had been changed, but the Home Secretary argued that the change merely reflected administrative practice.

This was important because had the policy changed in substance, it would have been necessary to undertake an equality impact assessment; none had been conducted.

Singh J. held that a material change, requiring an assessment, had occurred, whatever the subjective intention of those involved:

1. In my judgement there was a change in at least the stated policy. There was obviously a change of wording, in other words a reformulation of it. Even if the Defendant did not intend that to be a substantive change in her own policy, there are two reasons why the public sector equality duties were triggered by that reformulation. The first is that the meaning of a policy is an objective matter: whatever the subjective intentions of its authors, the formulation matters because the words which express a policy affect the public, not just officials within a department, for example individuals who are liable to detention and those who advise them. The reason why public law has in recent years come to recognise the importance of adherence (in general) to policy statements is that they serve an important function in maintaining the rule of law, which is of particular importance when fundamental rights such as the right to personal liberty are at stake. 

1. The second reason is that, even on the Defendant's own evidence, she was seeking to reformulate the policy to re-align it to what had been thought within the department to be its practice all along. The courts had given an interpretation to the policy which did not accord with the practice of the Defendant's department. But that is implicitly to acknowledge that in fact there was a change of policy if not of practice. It was common ground before me that, in the present context at least, the meaning of a policy is ultimately a question for the courts, not one for the executive. If that is right, then when the words of a policy are altered, that is a change in policy. It was clearly intended to have some effect, otherwise it would have been a pointless exercise.

These comments on the interpretation of policies being wholly in the domain of the courts are very English (whenever I get around to my promised discussion of Auer deference, the difference of the American approach will be manifest). But the fundamental point is that when administrative policies change, the administrator in question is placed under a variety of public law duties, which are perilous to ignore.

Due Process and Drone Strikes

Last week, the New York Times published a lengthy article on the 'secret kill list' being maintained by President Obama. Whatever the merits of targeted killings as a matter of international law, international human rights law, or justice, for students of administrative law, there are at least three aspects of interest to the story. To be clear, in what follows, I am not taking a position on the legality or morality of the strikes. But in the absence of formal due process through judicial review, it is worth considering the internal safeguards that administrative law norms suggest.

Administrative Policies Must be Reasonable

Administrative agencies are generally entitled to develop policies. Doing so assists agencies in discharging their statutory mandates in a coherent and consistent manner. Those who come into contact with agencies also benefit: it ought to be easier to predict the application of a general rule than the exercise of discretion.

From the Court of Appeal of Saskatchewan comes a reminder that the power to develop policies is not unlimited. In particular, policies must be consistent with the statutory provisions they purport to implement.

Of Tongues and Teeth: Sliding Scales in Judicial Review

The UK Supreme Court's decision of last week in Humphreys v Revenue Commissioners puts me to thinking about sliding scales. These are quite common in public law. At base, the idea is that greater scrutiny will be paid to decisions (or statutory provisions) in some circumstances, and less in others.

Monetizing Benefits

Interesting paper here from Arden Rowell (University of Illinois). One of the difficulties with regulators performing cost-benefit analyses lies in determining what should go into the analysis. Some things we can count quite easily: to use Rowell's example, the cost of installing rear-view cameras on cars; and the benefits in terms of lives saved (although this exercise may be controversial). Other things are harder, if not impossible, to count: the added benefit that childrens' lives will be disproportionately saved by rear-view cameras. How then, the question goes, can you conduct a cost-benefit analysis when the costs and benefits are incommensurable? Isn't the problem, at base, that regulators must make moral judgments about the weight to accord to certain types of interest, and that moral judgments cannot be quantified? Rowell suggests that regulators should attempt to partially monetize all benefits, as best they can, to conduct thorough cost-benefit analyses in the face of worries about incommensurability:

Insofar as this hesitation stems from concern about the incommensurability of money and other goods, it should cease immediately. Incommensurability does not preclude partial valuation, i.e. the partial expression of a good’s value in terms of another good. Even something as horrific and emotionally laden as the death of a child can therefore be partially monetized, i.e. partially expressed in terms of money, so long as people are willing to pay money to prevent it from occurring. Emotional goods like these are difficult to think about, and even more difficult to monetize, but refusing to monetize them at all is not a reasonable solution.

Rowell's solution would have the advantage of forcing regulators to set out their assumptions and judgments in monetary form, so as to allow a balancing of costs and benefits. Such a balancing would then be transparent and accountability would presumably be increased. But I have a nagging feeling that to assign dollar amounts in this way may serve simply to obscure the important moral judgments that have to be made by regulators.

C’est qui le maître chez l’arbitre?

A challenge, perhaps, from the Québec Superior Court to the established rule that tribunals are masters of their own procedures, as long as they do notviolate the rules of natural justice. A challenge, certainly, to anyone who thinks the distinction in administrative law between matters of procedure (for reviewing courts) and matters of substance (for decision-makers) is an easy one to grasp and apply.

Here, four individuals made complaints to a labour arbitrator. At the outset, the individuals’ union representative successfully sought an order excluding witnesses from the hearing. Two of the complainants were to be called and were thus excluded; the two others remained. Subsequently, however, the union sought to call one of the two complainants who had sat in on the arbitration up to that point. In addition, it changed representatives and sought to call the previous representative as a witness. While it is not clear from the facts, it is possible that the uncomfortable operation of changing union representatives mid-stream was what led to the difficulties. In any event, the arbitrator excluded the evidence.

Collier J. reversed the arbitrator’s decision to exclude. Interestingly, he classified the matter as one of procedural fairness, to which a standard of correctness should apply. This conclusion is not self-evident. Decisions on the admissibility of evidence can attract deference, as Lamer C.J. explained for a majority of the Supreme Court of Canada in Université du Québec à Trois-Rivières v. Larocque (1993):

The question before this Court is…whether, in erroneously deciding to exclude evidence relevant to the ground of dismissal which he has himself identified as being that which he must examine, the arbitrator necessarily commits an excess of jurisdiction.  In my view the answer to this question must in general be no.  It will be yes, however, if by his erroneous decision the arbitrator was led to infringe the rules of natural justice.

On this analysis, it is only the question of procedural fairness to which a standard of correctness applies. A standard of reasonableness applies to the decision-maker’s admissibility determination. In other words, Lamer C.J. drew a distinction between procedure (correctness) and substance (reasonableness). In the present case, following this approach, the questions for the reviewing court would have been (a) was the arbitrator’s decision to exclude the witnesses reasonable; and (b) did it render the process unfair?

By contrast, Collier J. asked whether the arbitrator’s decision to exclude the witnesses was correct, treating it is as a matter of procedure rather than substance. He examined whether the arbitrator’s admissibility determination was consistent with the general rule that parties should not be excluded from hearings. Concluding that it was not, he quashed the arbitrator’s decision in its entirety.

So much for the arbitrator’s claim to be maître chez lui!

But Collier J. does give a good, sharp explanation of the standard of correctness:

Il s'ensuit que le Tribunal doit entreprendre sa propre analyse de la question et il n'est nullement tenu d'acquiescer au raisonnement de l'arbitre.  Si le Tribunal n'est pas d'accord avec la conclusion de l'arbitre, il y substitue sa propre décision et rend la décision qui s'impose.

Like many things, the standard of correctness sounds better in la langue de Molière. 

H/T Ashley Kandestin au Blogue du CRL

80% of life is just showing up

Fascinating decision here from the District Court for the District of Columbia. America's National Labor Relations Board has been at the centre of controversy recently because of President Obama's inability to appoint new members. Before he made recess appointments to restore the full complement of members, the Board took an important decision which would have had the effect of making it easier for unions to become certified for collective bargaining purposes.

But the decision was challenged by a couple of employers' interest groups and ultimately ran aground on the Board's statutory quorum requirement. Three members must "participate" in any decision:

But whether the standard is “mere presence” or “participation,” the difficulty is in applying that standard to an online vote. When the very concept of a quorum seems designed for a meeting in which people are physically present in the same place, what does it mean to be present or to participate in a decision that takes place across wires? In other words, how does one draw the line between a present but abstaining voter (who may be counted toward a quorum) and an absent voter (who may not be) when the voting is done electronically? 

Here, a draft of the proposed rule was circulated by email to all three remaining members. Two indicated an affirmative response. The third never responded, not realizing that his failure to do so would lead to a failure to participate. To no avail, the Board argued that the third member's participation in previous discussions  and procedural decisions (in which he had made his opposition clear) and his subsequent release of a statement explaining his opposition satisfied the quorum requirement.

As District Judge Boasberg explained:

[H]e simply did not show up – in any literal or even metaphorical sense. Had he affirmatively expressed his intent to abstain or even acknowledged receipt of the notification, he may well have been legally “present” for the vote and counted in the quorum. Had someone reached out to him to ask for a response, as is the agency’s usual practice where a member has not voted, or had a substantial amount of time passed following the rule’s circulation, moreover, it would have been a closer case. But none of that happened here. In our prior world of in-person meetings, Hayes’s actions are the equivalent of failing to attend, whether because he was unaware of the meeting or for any intentional reason. In any event, his failure to be present or participate means that only two members voted, and the rule was then sent for publication that very day.

One other interesting point is the footnoted discussion of the applicability of Chevron deference to the Board's interpretation of its statutory provisions. There is, as the judge noted, an argument that a reviewing court should defer to the Board's determination of whether the quorum requirement has been satisfied: that is, if the Board considers it unnecessary for a formal vote to be recorded, a reviewing court should not interfere. But in the New Process Steel case, the Supreme Court of the United States did not apply Chevron deference to the quorum provision; and, stranger still, the Board did not raise the point in its argument.

As the judge noted, Woody Allen was quite correct to observe that 80% of life is just showing up.

H/T Jonathan Adler at the Volokh Conspiracy.

Separate Silos

One of the reasons offered by the concurring judges in Multani for merging administrative review and constitutional review (at least when an individualized decision was challenged) was that keeping them separate and distinct would be confusing to lower courts and litigants. That view never seemed particularly compelling to me: lawyers and judges often make and are faced with arguments that overlap and complement one another.

Interestingly, in Pridgen v. University of Calgary, where students punished for making nasty comments about a professor on a Facebook group successfully sought the quashing of the disciplinary measures against them, two of the judges on the Alberta Court of Appeal expressly avoided dealing with an argument based on the Charter, preferring instead to resolve the case on administrative law grounds. Even Madam Justice Paperny, who dealt with the Charter issue (the tricky part being whether it applies at all to universities), addressed the administrative law argument separately, agreeing that the disciplinary decision was unreasonable.

Her judgment is also notable for its treatment of the reliance by the decision-maker on hearsay evidence. She correctly noted that administrative decision-makers have more leeway than courts in permitting the introduction of hearsay, but that this leeway was exceeded in the present case:

[59]           It is generally open to administrative tribunals to admit hearsay evidence. But the relaxation of the rules of evidence does not relieve an administrative decision‑maker of the responsibility to assess the quality of the evidence received in a reasonable manner in order to determine whether it can support the decision being made. And in a subsequent judicial review, the reviewing court must consider whether the decision is “one of a range of possible outcomes”, based on the evidence that was received and assessed by the decision‑maker. It is not an error for a reviewing judge to consider the quality of the evidence and the manner in which it was assessed in conducting that analysis.

[60]           The evidence on which the University relies is not merely hearsay, it is double or triple hearsay of an extremely vague nature from an unnamed source or sources. It is simply not reasonable to conclude that “injury” within the meaning of the Student Misconduct Policy has been established on the basis of the information provided to the Review Committee, and the chambers judge committed no error in reaching that conclusion.

Thus in response to the students' argument that the decision did not conform to the University's own guidelines, the University was unable to demonstrate that its reasoning was cogent or that sufficient evidence existed in support of its decision, and its decision was unreasonable.