Deference, Weight and Procedural Fairness

In both Canada and the United States, considerable jurisprudential effort has been expended on identifying "standards of review" of administrative action. Standards of review refer to the tests applied to determine whether a court should strike down administrative decisions.

The Basis of Fairness in Administrative Law: Osborn v. The Parole Board

The recent UK Supreme Court decision in Osborn v. The Parole Board, [2013] UKSC 61 has already provoked interesting commentary on the relationship between the common law of procedural fairness and the European Convention on Human Rights. I have nothing to add to that commentary, but one of the things I find interesting about Osborn is the discussion of the basis of fairness in administrative law.

The Federal Court of Appeal on Inadequate Reasons

The Supreme Court of Canada took the (in my view) reasonable step in Newfoundland Nurses, 2011 SCC 62 of separating procedural review for failure to provide reasons from substantive review for reasonableness. One concern that might be voiced in response is that rolling a procedural right to reasons into substantive review may give too much latitude to administrative decision-makers, resulting in opaque decisions which communicate little or nothing to those affected. Viewed in this light, the approach of the Federal Court of Appeal in Leahy v. Canada (Citizenship and Immigration), 2012 FCA 227 is reassuring.

What Happens if you Overhear a Decision-Maker's Deliberations?

A funny thing happened at the Tribunal Administratif du Québec recently. A hearing was conducted into the suspension of an individual's driver's licence by videoconference. One of the administrative judges was present at the hearing; the other joined from a remote location. When the SAAQ -- the administrative agency that controls drivers' licences -- sought to introduce a medical note which it had not previously produced to the individual, the lawyers were asked to leave the room while the judges discussed admissibility.

Self-Represented Litigants and Administrative Tribunals

We know that administrative tribunals have plenty of scope to design their own procedures, which need not resemble those of a regular court. But there are limits, as the Québec Court of Appeal recently explained in a case involving a real estate agent who represented himself -- unsuccessfully -- at a disciplinary hearing.

Towards a Right to Respond in Immigration Law?

You know when academics say, "Some of my best ideas come from students"? Sometimes, we mean it.

Process and Substance: What Happens when the Decision-Maker Doesn't Listen?

Another example from the Canadian courts of the thin line separating process from substance: Turner v. Canada (Attorney General), 2012 FCA 159. On this occasion, the determination that a question went to process is again plausible at first sight but troubling on closer inspection.

Reasons and Reasonableness in Administrative Law

In describing the deferential standard of review of reasonableness in Dunsmuir v. New Brunswick, the Supreme Court of Canada was very eloquent. Where a standard of review of correctness is appropriate, the reviewing court substitutes its judgment for that of the initial decision-maker. But where deference is owed,

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.  In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.  But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

For more on Canadian judicial review doctrine, see my paper here.

One of the questions left unanswered by Dunsmuir was how this standard of reasonableness coheres with the duty to give reasons. This question is an important one, because the duty to give reasons has traditionally been treated as a matter of procedural fairness. When a right to procedural fairness is engaged, the standard of review is correctness: it is the reviewing court that decides whether the applicant has been treated in a procedurally fair manner.

Now, the distinction between procedure and substance is a tricky one (see my earlier post here) and here it gives rise to a problem. Assuming that the standard of review of the substance of a decision should be reasonableness, clever counsel could undermine deference by claiming that the reasons were insufficient. Adequacy of reasons, remember, attracts a standard of correctness and substitution of judgment. The idea would be to have the reviewing court substitute its judgment for that of the decision-maker in deciding whether the reasons given were adequate to explain the decision under review. An end-run around the standard of reasonableness could be accomplished by manipulating the distinction between procedure and substance.

Such sleight of hand is no longer possible after the Supreme Court of Canada’s decision in Newfoundland andLabrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board). Justice Abella noted with approval the warning of Professor Bryden: “courts must be careful not to confuse a finding that a tribunal’s reasoning process is inadequately revealed with disagreement over the conclusions reached by the tribunal on the evidence before it” (para. 21). She went on to explain that the better reading of Dunsmuir is that the adequacy or inadequacy of reasons goes only to whether the decision is reasonable, not to procedural fairness:

[14]    Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for the result.  It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.  This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes”.

Where no reasons at all have been offered in support of a decision, the failure to give reasons may be a breach of procedural fairness: “Where there are no reasons in circumstances where they are required, there is nothing to review” (para. 22). Beyond that, what matters is the reasonableness of the decision, determined in part by the adequacy of the reasons given for it.

As chance would have it, my current recreational reading is Amartya Sen’s The Idea of Justice. In explaining why the conventional economic view of rational choice is inadequate, Professor Sen comments in terms eerily reminiscent of the language used in Dunsmuir and Newfoundland Nurses:

Having reason to do something is not just a matter of an unscrutinized conviction – a strong ‘gut feeling’ – that we have ‘excellent grounds’ for doing what we choose to do. Rather, it demands that we investigate the reasons underlying the choice and consider whether the alleged reasons survive searching and critical examination, which one can undertake if and when the importance of such self-scrutiny is understood. The grounds of choice have to survive investigation based on close reasoning (with adequate reflections and, when necessary, dialogue with others), taking note of more information if and when it is relevant and accessible (p. 180).

That is not the only area of overlap between Professor Sen and the Supreme Court. In some areas of decision-making, such as labour relations, only laconic reasons need be given to parties well-versed in the intricacies of the relevant relationships and legal provisions. Taking Justice Abella’s view of the relationship between reasons and reasonableness, sparseness in explanation is not problematic. Thus it is interesting to note that Professor Sen continues: “When the reasons for a particular choice are established in our mind through experience or habit formation, we may often choose reasonably enough without sweating over the rationality of every decision” (p. 181).

Clearly, great minds think alike!