The Relationship between Public Law and the Law of Nuisance: Coventry v. Lawrence, [2014] UKSC 13

The UK Supreme Court decided an important case on the law of nuisance last week: Coventry v. Lawrence, [2014] UKSC 13. One of the many important issues was whether planning permission is a defence to an action in nuisance.

David Feldman on the Effects of Invalid Decisions (the Void/Voidable Distinction): the Utility of Principles in Administrative Law

David Feldman has posted "Error of Law and the Effects of Flawed Administrative Decisions and Rules" on SSRN. Here is the abstract:

Over the last half-century, English administrative law and theory have increasingly paid lip-service to three propositions. (1) All errors in the course of making a decision or rule are to be regarded as errors of law. (2) All errors of law make the decisions to which they relate null and void. (3) If a ‘decision’ is a nullity, it can have no legal effect.

Yet it would be extremely inconvenient if every error which infringed a legal requirement in the making or implementation of a rule or decision were to deprive it of legal effect. The error might be minor, or do no harm to anyone. It might not make the decision (and hereafter, unless the context otherwise requires, ‘decision’ includes ‘rule’) inappropriate or deprive it of social and political legitimacy. The damage caused by refusing all legal effect to it might then be out of all proportion to the seriousness of the error. However, the three propositions make it difficult to provide a principled explanation or justification for those outcomes, and therefore to predict what effect a flawed decision will have. Section I argues that the propositions are based on a misleading interpretation of Anisminic Ltd v. Foreign Compensation Commission which has cloaked the creativity of administrative lawyers for forty years. Section II builds an alternative set of principles from the practice of courts. Section III suggests that these principles provide a basis for a realistic, predictable and principled understanding of administrative law.

I am not sure that propositions (2) and (3) are pervasive amongst people who think seriously about public law but they do surface with astonishing regularity and vigour. In any event, the continuing effect of administrative decisions adjudged invalid -- often known as the distinction between "void" and "voidable" decisions -- is a topic deserving of the lengthy treatment that Feldman has given it.

To quote from his conclusion:

Case-law does not support the view that all legal flaws make a decision void. Sometimes they remain valid unless quashed, reversed, or declared to be unlawful (and occasionally even then they continue to have some legal effects). Judges and legal professionals more generally do not behave as if nullity were always the consequence of an error of law. The leading theories which attempt to rescue the propositions by explaining away or rationalizing inconsistent decisions do not reliably offer guides to future cases. When we look afresh at what is really going on, building on the case-law rather than imposing a theoretical strait-jacket on it, it becomes clear that it is shaped by principles which enable us to understand and predict outcomes reasonably confidently in most cases. In other words, administrative law can justifiably be regarded as ‘law’, rather than an unprincipled lottery. We have identified seven principles.

Feldman's seven principles (access, legality, certainty, finality, courts do not act in vain, difference, morality and efficacy) can be grouped under the more capacious headings of "the rule of law" and "principles of good administration".

These principles -- or values, as I prefer -- have extraordinary explanatory power across the whole field of administrative law. They are especially useful at explaining past cases and justifying outcomes in present cases where there are few hard-and-fast rules: the scope of judicial review; discretion to refuse a remedy; whether an administrative decision can be challenged in a private law action or other non-judicial review forum; and, of course, the effects of decisions later adjudged to be invalid.

You can download the paper here.

Deference on all Types of Procedural Fairness Question? Maritime Broadcasting System Ltd. v. Canadian Media Guild, 2014 FCA 59

In Maritime Broadcasting System Ltd. v. Canadian Media Guild, 2014 FCA 59, Stratas J.A. added his voice to the chorus of judges urging deference on questions of procedural fairness. A choir composed of Bich J.A., Evans J.A. and Stratas J.A. cannot be drowned out by assertions of the orthodoxy that 'correctness is the standard of review for procedural fairness questions'. The Supreme Court of Canada is going to have to address this question sooner rather than later.

Curbing 'Coherence' as a Reason for Correctness Review in Canadian Administrative Law

Late last year, the Supreme Court of Canada derided "fashionable" claims by applicants for judicial review that a correctness standard should apply in the review of administrative decisions. Yet such claims continue to be made successfully before lower courts. Sometimes they are plausible (see here), sometimes they are not (see here, at para. 59). Clear guidelines as to when cases fall into one category rather than another have not been forthcoming. There has, however, been some movement towards curbing the extent of one of the 'correctness categories'.

In McLean, the case in which applicants were admonished to cease being "fashionable", the Court summarily rejected one of the arguments for correctness review. In Rogers, the Court had substituted its interpretive view for that of the Copyright Board on the basis that the relevant question could have been raised at first instance before a court. On appeal, the standard would have been correctness. Coherence thus required correctness review in judicial review as well.

As I noted at the time, the contours of this 'coherence category' were unclear. Rogers did suggest that in statutes where regulatory enforcement was shared between an agency and the courts, correctness would be the standard, though courts have been reluctant to push Rogers to its logical conclusion. The applicant in McLean made this argument and received the back of the Court's hand:

[24]                          This case is different.  As Rothstein J. made clear in Rogers, it was the fact that both the tribunal and the courts “may each have [had] to consider the same legal question at first instance” that “rebutt[ed] the presumption of reasonableness review” (para. 15 (emphasis added)).  Here, the legal question is the interpretation of s. 159 as it applies to s. 161(6)(d) — and it is solely the Commission that is tasked with considering that matter in the first instance.  Accordingly, there is no possibility of conflicting interpretations with respect to the question actually at issue.  The logic of Rogers is thus inapplicable.

Because the same question could not arise at first instance before both the Commission or a court, Rogers did not apply. This limitation on Rogers is itself relatively limited: while the validity of an order barring an individual from engaging in the securities market presumably could be raised before a court in a private-law action, the order would necessarily have to have been issued. The Commission would have had to have acted first by imposing the order.

A more thoroughgoing attack was made by Evans J.A. in Re: Sound v. Fitness Industry Council of Canada, 2014 FCA 48. The issue here was whether a collective society was entitled to receive royalties for all music performed in fitness classes or only royalties for those artists who had authorized it to do so. Evans J.A. acknowledged that it would be possible that a court would have to broach this question at first instance, but that such an action could proceed only with ministerial consent (at para. 48). He therefore dismissed the suggestion that Rogers thereby applied:

[49]         In my view, this theoretical and somewhat remote possibility is not sufficient to bring the present case within the Rogers exception. The requirement of Ministerial consent before a society can bring an action to recover equitable remuneration instead of seeking the Board’s approval of a tariff is a clear indication that Parliament intended the Board to have primary jurisdiction over the collective enforcement of neighbouring rights, including the interpretation of the statutory provisions governing this complex, rate-setting scheme. No such provision limited the copyright holder’s right in Rogers to bring an infringement action that could have required a court to decide the same legal question as that decided by the Board.

So Rogers continues to be chipped away at.

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.

Year in Review: the 6-Minute Administrative Lawyer

The Law Society of Upper Canada (to the uninitiated, that's the Ontario Bar Association) is holding its annual 6-Minute Administrative Lawyer conference next month. I'm doing the 'Year in Review' presentation. Here's the abstract:

I will discuss the leading Supreme Court of Canada (“the Court”) decisions of the one-year period bookended by the Six-Minute Administrative Lawyer conferences of 2013 and 2014. I have chosen those I consider of greatest importance and interest; and I have added an important case from the Quebec Court of Appeal. Yet again, questions about the standard of review analysis abound. For something apparently simplified in Dunsmuir v. New Brunswick, it provokes a great many questions. This year, questions about the scope and meaning of the framework established in Dunsmuir and subsequent cases were most prominent.  

I will proceed case-by-case rather than thematically, but I should draw your attention at the outset to five themes which recur. The first is the uncertain scope of the post-Dunsmuir framework: does it apply to ministerial interpretations of law; what about regulations issued by a minister or cabinet? The second is the continued failure of the Supreme Court of Canada to provide criteria to identify questions to which a standard of correctness applies. The third is the ability of decision-makers to bolster their decisions after judicial review proceedings have been commenced. The fourth is the revival and development of troublesome distinctions, between “law” and “policy”, “clear” and “unclear” statutory provisions, and “implied” and “express” components of decisions. The fifth is the unstable nature of a single reasonableness standard that has two distinct aspects, a process aspect and a substance aspect.

And if there is one unifying ‘meta’ theme it is the Court’s reluctance to engage in grand theorizing about the post-Dunsmuir framework. Yet without some grand theorizing, it is likely that questions about administrative-law doctrine will continue to abound.

Administrative Law Matters at the Movies: a Whimsical Post for Oscar Night

Unlike most well-adjusted people I do not make a habit of watching the Oscars. I do make a habit, however, of watching movies that were nominated for Oscars (this and the IMDB rating system largely dictate my entertainment choices). Last night, I sat through Dallas Buyers' Club, which is tipped to win heavily this evening.

Although Matthew McConnaughey's performance in the lead role was very good, I can't say I was otherwise terribly impressed. Foul-mouthed homophobe moves into a circle of homosexuals, is won over and reforms? Tenacious little man takes on the system? Insider (played by a very worried-looking Jennifer Garner) becomes appalled by how the system works and turns against it? You will pardon my saying that I did not find the primary themes terribly original.

What may be of interest to administrative lawyers is the central place in the movie of a regulatory agency, the Food and Drug Administration. Briefly, Ron Woodruff (Matthew McConnaughey) is diagnosed with AIDS and learns that the preferred contemporary treatment, a drug called AZT, seems to do as much harm as good.

He identifies unapproved drugs which are more effective and begins importing them from other countries. At this point, he runs into (predictable) difficulty with the FDA. Woodruff acknowledges that it would be illegal to sell unapproved drugs so he instead forms a private association (the Dallas Buyers' Club) members of which receive drugs in return for a monthly fee.

In a raid by FDA officials, his products are seized, on the basis that they are improperly labelled. He roars that this is a 'technicality' though of course his own scheme is evidently predicated on an extremely lawyerly reading of the relevant statutes.

What this scene and Woodruff's subsequent troubles with the FDA and taxman tend to demonstrate is that regulatory agencies wield enormous power in the modern state. When they come to get you there is almost always some regulatory requirement somewhere that you will have missed! A problem of a much greater magnitude for someone like Woodruff than for a larger entity which has the resources to lawyer up and charge well-armed into a long and attritional battle. Another reason to think seriously about enforcement discretion.

High-profile movies do not often touch in great detail on legal issues, but Dallas Buyers' Club does. The movie contains plenty of other occasions to ponder the modern role of regulatory agencies. It might even make worthwhile classroom material.