Governmental Contracting, Procedural Fairness and Fundamental Freedoms

As a general rule, governments cannot and should not be required to fund speech or activities with which they do not agree. An organization committed to perpetuating inequalities between men and women, or which decries homosexuality as sinful, can lawfully be shunned. But should such an organization, especially one which previously received government funding, be entitled to some procedural protections before a decision is made to refuse to contract with it on the basis of its speech or activities?

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!).

Conseil d'État -- Comedians Have no God-Given Right to Engage in Hate Speech

Much ink has been spilled over the Conseil d'État's decision yesterday to maintain a ban on a performance by comedian Dieudonné M'Bala M'Bala. M'Bala M'Bala is said to be anti-semitic and is highly controversial. Concerned about public safety, a municipal official in Nantes issued an order banning M'Bala's planned a performance last night. On an application to it by the Interior Minister, the Conseil d'État, the body that sits atop the French administrative structure, concluded in a typically short decision that the ban was lawful.

Unthinking Thinking Like a Lawyer: the Struggle for Deference in Canada

This is the draft title of a book chapter I have prepared for a forthcoming collection on substantive review.

I have a draft of the chapter which I am happy to circulate to those who are interested in commenting on it. Feel free to email me: paul dot daly at umontreal dot ca.

Here is the abstract:

From their first exposure to law in university, through to their days in legal practice, lawyers understand that legal questions have ‘right answers’ which it is the role of legal experts to provide. Convincing judges that in some instances administrative decision-makers should be trusted to provide the answers is difficult. Affording curial deference requires judges to pull against the current of years of legal training.

It is no surprise then that in pursuing a deferential course to judicial review of interpretations of law, the Supreme Court of Canada has repeatedly been buffeted by traditionalist storms pushing it towards a more interventionist course. This even though the Court has been to the fore in recognizing that curial deference is compelled by the combination of legislative choice and relative institutional competence.

An early deferential approach was the concept of error of law within jurisdiction, but it was thwarted by a broad conception of jurisdictional error. Next, judges were admonished to exercise caution before identifying provisions as “jurisdictional”. Solely attitudinal in nature, this approach failed to shift the interventionist attitudes inculcated by law schools and years of legal practice.

Hence the development of the “pragmatic and functional analysis”, a multi-factor test designed to require justification for judicial intervention in terms of legislative intent. Only those questions the legislature intended to reserve the courts should be treated as “jurisdictional”. Yet again, however, interventionist attitudes prevailed. Questions that would traditionally have been seen as jurisdictional had an almost magical capacity to attract judicial intervention, the multi-factor test notwithstanding. And these questions were sometimes “segmented”: the jurisdictional aspects of decisions were hived off and subjected to more intense scrutiny.

Now, the Court directs that interpretations of decision-makers’ home statutes should be overturned only if unreasonable. Even here, interventionist winds have blown courts off the deferential course charted by the Court. The reasonableness of administrative interpretations of law is adjudged by reference to judicial principles of statutory interpretation, such that little separates modern reasonableness review from prior interventionist approaches.

Tribunal Independence: Ron Ellis -- Unjust by Design: Canada's Administrative Justice System

Having worked at the tribunal coalface for many years, Ron Ellis is very well placed to comment on the independence of Canada's administrative tribunals. In Unjust by Design, he eviscerates the current system and draws out a road map for reform. The book is fascinating and well worth reading in full. I will limit myself to a brief summary and two remarks.

Can there be too much Standard of Review in Canadian Administrative Law?

When I was on the job talk circuit a couple of years ago, an eminent professor confessed that s/he had only half paid attention to my presentation, noting that s/he had stopped paying attention to Canadian administrative law about 20 years ago and was satisfied that s/he had missed nothing: "Obviously you are having the same argument that scholars were having two decades ago". And from time to time one hears sighs, even from administrative-law aficionados, accompanied by moans of "Oh no, not the standard of review again".

Internal Standard of Review: A Promising B.C. Decision

I have posted before about the standard of review where an administrative decision-maker reviews another decision-maker: see especially here and also here and here. There are two important matters, in my view. First, the appellate administrative decision-maker is not limited to a choice between a full de novo hearing and a judicial-review type proceeding: there is rather a spectrum of options created by the interaction between the wording of the legislation and the substantive characteristics of the respective decision-makers. Second, a reviewing court should defer to the appellate administrative decision-maker on its choice.