Won't Someone Please Think of the Civil Servants: John Doe v. Ontario (Finance), 2014 SCC 36

By now, it is a familiar story. The standard of review is reasonableness. An exhaustive review of the relevant statutory language and factual matrices follows. And then there is a brief conclusion: the decision is reasonable or unreasonable.

How (Not) to Conduct Deferential Review: Dionne v. Commission scolaire des Patriotes, 2014 SCC 33

The province of Quebec allows pregnant workers to exercise a right of withdrawal from dangerous work environments. At issue in Dionne v. Commission scolaire des Patriotes, 2014 SCC 33 was a supply teacher's thwarted effort to exercise her right of withdrawal. A unanimous Supreme Court of Canada quashed the decision of the Commission des lésions professionnelles and held that teacher was entitled to withdraw.

Although it may seem unusual to treat schools as dangerous workplaces, it is common and accepted practice in Quebec for pregnant teachers to withdraw from the workplace because of the risk of contracting harmful diseases from their students. Reading between the lines of the present case, the school board and the CLP apparently took umbrage at the teacher's temerity in claiming her statutory rights, evidence perhaps of a disconnect between law-in-the-books and law-in-practice and lingering discomfort amongst employers about assertive employees.

Be that as it may, the most interesting aspect of the case, from an administrative-law point of view, lies in the differing approaches to the task of judicial review taken by the appellate judges involved. In my view, the Quebec Court of Appeal's stance was more appropriate than that of the Supreme Court of Canada. And of the Quebec Court of Appeal judges, the dissenting reasons of Dalphond J.A. are preferable to the majority reasons of Wagner J.A. (who is now a member of the Supreme Court, though obviously he did not sit on this appeal).

Three Strange Things about Martin v. Alberta (Workers’ Compensation Board), 2014 SCC 25

Martin v. Alberta (Workers’ Compensation Board), 2014 SCC 25 does little or nothing in the way of doctrinal development, and so should not be expected to have a lasting impact on the law. Three aspects of this Supreme Court of Canada decision are nonetheless worth highlighting in an effort to explain why Martin is best confined to its special facts.

Breaking Out of Federal Court: Mission Institution v. Khela, 2014 SCC 24

Under the Federal Courts Act, the Federal Court has exclusive jurisdiction

to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal.

A notable absentee from this list is the writ of habeas corpus. Since its assertion that the "rule of law must run within penitentiary walls", the Supreme Court of Canada has given prisoners a choice between making habeas claims in the provincial superior courts or judicial review applications in Federal Court.

The "Range" of Reasonable Outcomes: a Spectrum or an Accordion?

My post welcoming Evans J.A.'s recent suggestion that weight could be accorded to administrative determinations of procedural fairness questions has provoked some debate, some in the comments section of that post, some on Twitter and some in emails to me. Another Federal Court of Appeal decision is therefore timely: Canada (Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56.

And What if the Nadon Reference Never Happened? A (Fanciful) Thought Experiment

As you probably know by now, the Supreme Court of Canada ruled on Friday that federal court judges are not eligible for appointment to its three 'Quebec seats': Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21. Although retrospective legislation was introduced after the appointment of Justice Marc Nadon to the Court, the legislation was ultra vires Parliament. It was a change to the "composition" of the Court, something that can now be effected only by a constitutional amendment pursuant to Part V of the Constitution Act, 1982.

Regular readers will not have been as surprised as some. The Court's analytical framework mapped my submissions to the Senate Committee on Legal and Constitutional Affairs. There, I hedged my bets on the constitutional question, but I identified strong textual, purposive and intentionalist grounds for the Court's conclusion. Much more could have been said by the Court in support of its decision on the constitutional question but it was unquestionably on solid ground. On the interpretive issue, opinion has long been closely divided. Again, there was ample support for the Court's preferred view.

On one of the Sunday talk shows, a spokesman for the federal government raised the possibility that Justice Nadon might be appointed by some other means. As I (and others) explained to the Globe and Mail, there is very little chance of that happening. I submitted an explanatory op-ed which is more expansive, but I have no idea when or where it will appear.

A more interesting question to ponder is what would have happened had the initial challenge to Justice Nadon's appointment proceeded through Federal Court. For want of expertise I park the question of whether Rocco Galati would have been successful in his claim that solicitor-client privilege was waived by the selective publication of positive opinions on the legality of the appointment. It seems to me a solid tactical reason for the course taken, as does the need for a relatively swift resolution of a controversy that has left the Supreme Court a judge short during two terms.

I noted at the outset that Galati's challenge had significant merit. Galati had standing, the issue was justiciable and he had a strong argument on the interpretation of section 6 of the Supreme Court Act.

What was less clear, as Finn Makela noted in a comment, was whether the reviewing court would have to defer to the federal government.

There would have been strong arguments for deference. Though hedged in by statute, the power to name Supreme Court judges is plainly a discretionary one and may be based in part on broad considerations of policy, factors which trigger deference in the Court's current analytical framework.  Moreover, even though the government did not necessarily set out its interpretation of the Supreme Court Act, its preferred view was "implied" in its conclusion that Justice Nadon was eligible; and a court may have had to defer to the interpretation advanced in litigation in response to Galati's challenge.

As against this, the case might have been one which fell in the narrow category of "constitutional" questions reserved to the courts. As we now know, the "composition" of the Supreme Court of Canada is protected from "substantive change" (para. 105). Galati would have argued that what is impermissible by legislation is also impermissible by executive action. I agree, but the 'correctness' categories are narrow enough that the courts might nonetheless have felt bound to defer to the federal government's interpretation, especially since this sort of problem has never really been authoritatively resolved in Canada.

If deference were due, the federal government should in my view have won the case. On my view, recently set out in "Unreasonable Interpretations of Law", Galati would have had to identify a fatal flaw in the reasoning advanced by the federal government. This would have been very difficult. The expert opinion published in support of the appointment was unreasonable because it ignored section 6 of the Supreme Court Act, which was the key provision, but the federal government's ultimate litigating position advanced a plausible interpretation of the relevant statutory provisions. It is easy to disagree with the federal government's position but difficult to say that it was unreasonable. (I digress to say that I completely disagree with deferring in this sort of situation, but that is an argument for another day!).

Granted, Canadian courts have not adopted the view I set out in "Unreasonable Interpretations of Law". They have tended to defer less on questions of statutory interpretation. Nonetheless, even supporters of the Court's decision on Friday acknowledge that the interpretive question was "close", surely close enough that deference to the federal government would have tipped the scales decisively in favour of Justice Nadon.

Of course, this thought experiment is fanciful. The federal government really had no option but to refer the matter to the Supreme Court of Canada for authoritative resolution. I think it did the right thing in doing so. The thought experiment is nonetheless interesting. And in light of the result a deferential approach could well have given, it provides food for thought about the appropriateness of deference, especially on questions that touch fundamental constitutional values.

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!).

Finding the Range of Reasonableness

Ronald Dworkin gave a good example to illustrate what he called "strong" and "weak" discretion. Imagine a sergeant A who is told to pick "any five men" for a mission. Contrast her with a sergeant B told to pick "the five most experienced men". One has strong discretion, the other weak.

Time to Double Down on Dunsmuir?

The Supreme Court of Canada released a fascinating administrative law decision this morning: McLean v. British Columbia (Securities Commission), 2013 SCC 67. The majority reasons were written by Moldaver J.; Karakatsanis J. wrote a set of concurring reasons.

Positive and Negative Mobility Rights: Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47

In Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, handed down yesterday, the Supreme Court of Canada was unanimous in upholding the International Transfer of Offenders Act against (a long-shot) constitutional challenge. But the judges mapped out two different routes to that conclusion, evidence I think of difficulty in tracing the contours of the right at issue. Understanding these two routes is important, because it will have an effect on how the Act is treated in future cases. Not all of what follows is in my core area of expertise, so I welcome comments.

The Thin Line between Law and Discretion

A recurring issue in the law of judicial review is the distinction between law and discretion. Where this matters the most is in substantive review: should a similar standard of reasonableness be applied to questions of law and exercises of discretion?

President Obama's Executive Order on Cybersecurity

Given the recent discussion of the constraints law places -- or doesn't place -- on administration, I think Executive Order -- Improving Critical Infrastructure Cybersecurity is noteworthy. Even though President Obama is not under any duty to follow the strictures of the Administrative Procedure Act in issuing executive orders, the hallmarks of administrative law can be glimpsed in this important document.

Justice Stratas on Reasonableness and Context

Justice Stratas voiced some interesting thoughts on the meaning of reasonableness and context in Canada (Attorney General) v. Abraham, 2012 FCA 266:

[44]           For example, where the decision-maker is considering a discretionary matter that is based primarily on factual and policy matters having very little legal content, the range of possible, acceptable outcomes open to the decision-maker can be expected to be quite broad. As a practical matter, the breadth of the range in that sort of case means that it will be relatively difficult for a party applying for judicial review of the decision to show that it falls outside of the range.

[45]           In other cases, however, the situation might be different. For example, where the decision-maker is considering a discretionary matter that has greater legal content, the range of possible, acceptable outcomes open to the decision-maker might be narrower. Legal matters, as opposed to factual or policy matters, admit of fewer possible, acceptable outcomes.

Language Politics and Administrative Law

If you walk through the city centre streets of Montreal, you could well be walking along any street in North America, such is the predominance of big-name brands. This has long been a bone of contention for Quebeckers. Protest marches are not uncommon. Symbolically, the issue is of great importance, all the more so given the recent return to power of the Parti Québécois.

Now from La Presse comes an interesting story about an application for judicial review by six multinational companies. They challenge a new interpretation of an existing regulation by the Office québécois de la langue française. If the interpretation withstands challenge, Wal-Mart, Best Buy, Costco, Old Navy, Guess and Gap will have to add a French term to their English trademark.

The Ontario Court of Appeal Provides Some Reasonableness Guidelines

In passing in its otherwise unremarkable decision in Pastore v. Aviva Canada Inc., 2012 ONCA 642, the Ontario Court of Appeal had something interesting to say about reasonableness.

Precedent and Administrative Law -- Again

I have previously blogged about the place of precedent in modern Canadian administrative law. The basic idea is not difficult to grasp. In Canada there is no presumption that there is a "right" answer to any question of law or discretion that arises before administrative bodies. Accordingly, administrative bodies are not bound by their previous decisions. As long as the decision in any given case is reasonable, then it should not be struck down just because the administrative body previously reached a different decision.

A Bad Day for NAMA

Ireland's National Asset Management Agency won a High Court legal battle against Treasury Holdings earlier this week, but it may end up losing the war. Finlay Geoghegan J.'s judgment, [2012] IEHC 297, cannot have been well received at NAMA headquarters. Over at NAMA Wine Lake, the editors wonder out loud "if indeed the Agency is panicking at the prospect of floodgates of legal action in the wake of yesterday’s judgment".

Curial Deference, Irish style

Karole Cuddihy passes along an interesting Irish High Court decision. In the following passage, from EMI Records (Ireland) Ltd. v. The Data Protection Commissioner, [2012] IEHC 264, the ever-reliable Charleton J. describes the place of deference in Irish law. I think it also functions as a serviceable description of prevailing English law:

Standard of Review in the Copyright Cases

Last week the Supreme Court of Canada released its reasons in a "fivefecta" of copyright cases. Interesting questions were raised. Are additional royalties payable when a video game is downloaded rather than bought over the counter? Is streaming a communication to the public which requires payment to the copyright holder? When a consumer listens to a preview of a song on iTunes, is Apple on the hook for an extra royalty? How much copying can a teacher do to create course materials for students? And is a movie soundtrack to be treated as a whole or a collection of components? Amidst all this, the Court also found time to introduce a new innovation in standard of review.

Deference to Administrators' Interpretations of their Own Regulations

The Supreme Court of the United States recently cast a critical eye over the concept of Auer deference (so called even though the seminal case is actually Bowles v. Seminole Rock & Sand Co.). When administrative bodies promulgate rules, regulations and policies to fill in the gaps in statutory provisions, their promulgations may themselves have gaps and require further interpretation. Auer deference commands that any such further interpretation "becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation" (see here).