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.

Boilerplate Reasons

The President of France, M. Hollande, has recently suggested that where the administration fails to reply to individual decisions silence should be taken as indicating consent: "dans de nombreux domaines, le silence de l’administration vaut décision d’acceptation et non plus décision de rejet". 

Supreme Court of Canada decision in Kane

Quick and brutal. The webcast of the hearing in Canada (Attorney General) v. Kane, 2012 SCC 64, was barely up on the Supreme Court's website before the appeal was allowed. Only 17 days elapsed between the hearing on November 6 and this morning's per curiam opinion.

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.

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.

Immigration Officer's Academic Writing Did Not Cause a Reasonable Apprehension of Bias

The applicant in Francis v. Canada (Immigration and Citizenship), 2012 FC 1141 was concerned that she had not got a fair shake before the Refugee Protection Division, on the basis of comments made by the decision-maker in previous academic writings. He had suggested that the refugee protection system gave rise to anomalies, and cited the applicant's place of origin, Saint Vincent, as an example. He had also argued that Canada's immigration policy could lead to a break down in social cohesion.

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.

Duties of Fairness in the Disposal of Municipal Buildings

At first blush, the result in North End Community Health Association v. Halifax (Regional Municipality), 2012 NSSC 330 is striking. A municipality's decision to sell an old school to a property developer was held to be unlawful because it breached a duty of fairness to local non-profit organizations and because it was sold at less than market value.

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.

Immigration Officer's Interpretation of Guidelines was Unreasonable

I've commented previously on administrators' interpretations of their own regulations. In a recent Federal Court case, Moya v. Canada (Citizenship and Immigration), 2012 FC 971, the question of how reviewing courts should treat such interpretations arose again.

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:

That's the Spirit -- Airline Challenge to Advertising and Fees Regulations Fails

Nothing new under the sun is to be found in Spirit Airlines v. Department of Transportation, but the facts are interesting.

Unequal Treatment of Local Government Taxpayers in North America

The highest courts of both the United States and Canada have both recently pronounced on claims relating to the unfairness of local government taxation systems. Before the Supreme Court of Canada, the argument went to the substantive reasonableness of the municipal by-law at issue. Further south, the Supreme Court of the United States was asked to find a violation of the equal protection clause of the 14^th Amendment to the U.S. Constitution. Doctrinally, the cases are distinct, but the striking similarity of the issues engaged and the results reached makes for an interesting comparison.

La cohérence décisionnelle en droit administratif

Je pensais de garder cette décision jusqu’au retour en classe des étudiants du préscolaire à la fin de l’été, mais finalement j’ai conclu que les principes découlant de ladite décision sont trop intéressants pour les cacher plus longtemps. La Cour d’appel y explique très clairement les principes de la révision judiciaire au Québec.

Unreasonable Exclusion of Claims by Arbitrator

Another example, this time from the Manitoba Court of Appeal, of a decision-maker stretching language too far.

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!

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.

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.

The Charter and Administrative Adjudication

The Supreme Court of Canada has been feverishly productive in the field of administrative law since the Fall of 2011, rendering decisions on standard of review (questions of law, jurisdictional error and labour arbitrators), the right to reasons, issue estoppel, attempts to pre-empt the administrative decision-making process, and review of municipal by-laws. Plenty of grist for my mill over the coming weeks and months.

To my mind, the most dramatic of these recent decisions is that of a unanimous Court in Doré v. Barreau du Québec. Dramatic because the Court overruled a recent precedent, Multani, itself merely the confirmation of a consistent line of reasoning which can be traced back to the Court's decision in Slaight Communications v. Davidson. And the most dramatic because it has implications both for how administrative decision-makers consider Charter arguments and how courts should approach applications for judicial review on the basis that Charter rights were infringed by an administrative decision-maker.

Briefly, a majority of the Court held in Multani that administrative law and constitutional law must be distinguished. When a legislative provision expressly or implicitly infringes a Charter right, the applicant must challenge the validity of the provision in question. When the source of the alleged infringement is the exercise of a discretionary power, the applicant must challenge the validity of the exercise of the discretionary power. This can be accomplished in one of two ways: the applicant can argue on classic administrative law grounds that the power was exercised in an illegal, unreasonable or procedurally unfair manner; or the applicant can argue on constitutional law grounds that the power infringed his or her Charter rights in a disproportionate manner. There were two sets of concurring reasons disagreeing with the analytical approach of the majority, one authored by Justice Abella (joined by Justice Deschamps) and the other authored by Justice LeBel. If the two sets of concurring reasons could be said to have a common theme, it was that the proportionality test applied to determine the proportionality of infringements of Charter rights was inappropriate where the applicant challenged an individualized decision rather than a legislative provision.

In Doré Justice Abella's vision of the relationship of the Charter and administrative law won out. The applicant was a lawyer who was reprimanded by his regulatory association for writing an intemperate letter to a trial judge with whom he had locked horns. The dispute between the two was extremely heated, but the letter was not made publicly available. The lawyer did not challenge the validity of the Code of Ethics under which he was punished, but challenged the decision as a violation of his right to freedom of expression.

Justice Abella was able to draw on significant academic authority for her decision to over-rule a very recent precedent, noting that the commentary post-Multani has been "consistently critical" (at para. 33). I have argued in Chapter 5 of my forthcoming book, A Theory of Deference in Administrative Law, that the Court got it right in Multani, but it seems I may be in a minority of one! This is not the place to detail those arguments, but it is worth noting a couple of mis-steps on Justice Abella's part. For one thing, at para. 52, she wrongly conflates the application of the proportionality test with review for correctness. It is in fact a review for proportionality, not correctness, and does not allow the reviewing court to step into the shoes of a decision-maker exercising a discretionary power. Why? The correct interpretation of the Charter is that proportionate limitations on rights are acceptable, not that whenever a Charter challenge is made the reviewing court must substitute its judgment for that of the decision-maker. For another, at para. 56, she takes the most deferential possible view of the proportionality test (that an infringement is proportionate if it falls within a range of reasonable alternatives), in order to suggest a commonality between review for proportionality and review for unreasonableness. But viewed in the round, the multi-pronged proportionality test is much more rigorous than review for unreasonableness. It is hard to see how the purposes of the Charter are served by lowering the standard of protection afforded to Charter rights.

Nonetheless, her guidance to decision-makers is clear and cogent:

How then does an administrative decision-maker apply Charter values in the exercise of statutory discretion?   He or she balances the Charter values with the statutory objectives.  In effecting this balancing, the decision-maker should first consider the statutory objectives...Then the decision-maker should ask how the Charter value at issue will best be protected in view of the statutory objectives.  This is at the core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives (at paras. 55-56). 

It is hard to quibble with this approach. Administrative decision-makers ought not to be hamstrung by a requirement to conduct a formalistic inquiry into whether their decisions would survive the application of the proportionality test, as the House of Lords has recognized. Rather, they should attempt to achieve their statutory objectives with one eye on the Charter interests and other social values at play. There is no need to 'legalize' or 'judiciarize' administrative processes. Indeed, if it were desirable to do so, then the various functions of administrative decision-makers could be handed over to courts. Conscious decisions to keep matters away from the courts, at least initially, should be respected, and Justice Abella's guidance coheres with the general aim of providing non-judicial machinery for the resolution of disputes.

But applauding this aspect of Justice Abella's reasons is not to applaud her guidance to reviewing courts:

On judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play...If, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable (at paras. 57-58).

Instead of the rigorous, well-known and well-defined proportionality test, reviewing courts are henceforth required to conduct some sort of balancing test. Questions abound: what is a "proportionate balancing" that is not an application of the proportionality test? Is there a difference between a "proportionate balancing" and "properly balanced" and if so, what is it? What weights are to be given to the "Charter value" and the "statutory objectives"? Do different Charter values have different weights? What is the "nature of the decision" and how does it influence the analysis? Can it really be said that this formulation is adequately protective of Charter rights? It will be interesting to see how lower courts address these questions.

The ultimate conclusion in Doré is rather unsatisfactory. Justice Abella signs off by commenting that, given the "excessive degree of vituperation in the letter’s context and tone", the decision to reprimand the applicant "cannot be said to represent an unreasonable balance of Mr. Doré’s expressive rights with the statutory objectives" (at para. 71). There is much emphasis in her discussion on the need to maintain civility in the legal profession, but there is no searching analysis of the extent to which the disciplinary committee actually did consider the applicant's interests in freedom of expression. Criticism may be robust, but may not exceed the "public’s reasonable expectations of a lawyer’s professionalism" (at para. 69). However, the fact that the letter was not made publicly available does not feature in the analysis. No attention is paid to the context in which the letter was written, most likely at a time when the author's tempers were running temporarily high. Absent too is any consideration of whether a formal reprimand was necessary to achieve the statutory objectives, though this is not surprising considering the replacement of the proportionality test with a less robust balancing exercise.

The fear I express in A Theory of Deference is that the sort of approach championed by Justice Abella will be under-protective of Charter rights. Hopefully this fear will not be borne out, but Doré does not seem to represent a promising start.