Thursday 30 May 2013

Immigration: Justiciability and Procedural Fairness

An organization entered into an agreement with the Minister for Citizenship and Immigration to sponsor immigrants to Canada. Initially, the agreement provided that the Minister would cover all health care costs. Subsequently, the federal cabinet (of which the Minister is a member) issued an order which had the effect of requiring the organization to defray certain medical expenses. The organization claimed that this would cost about $400 per immigrant (of which they had sponsored about 1,000) per year. In Hospitality House Refugee Ministry Inc. v. Canada (Attorney General), 2013 FC 543, an application for judicial review was dismissed.

Thursday 23 May 2013

More on Assisted Suicide and Guidelines

Richard Ekins has an interesting response to my post Death, Democracy and Delegation over on the UK Con Law blog.

I have just posted a comment in reply which is worth reproducing here:
I perhaps did not identify my central point with sufficient precision. My goal was to highlight the democratic potential of administrative guidelines, in terms of facilitating public debate inside and outside of Parliament, opening up the possibility of interaction between Parliament, the Director of Public Prosecutions and the public, and giving effect to popular opinion. Democracy does not (and ought not) begin and end at the edges of legislative chambers, a point underscored by the Menard Report. As is clear from my post, I agree with you that the Report’s proposals are ultimately unconstitutional, though because they breach the division of powers in the Canadian constitution, not the separation of powers. What is interesting is the Report’s emphasis on administrative guidelines as the means of giving effect to the popular will. More generally, administrative guidelines can be useful in responding to a lack of clarity in primary legislation. As Justice Scalia noted this week, albeit in a different context, about the need to engage in line-drawing when primary legislation is not clear: “These lines will be drawn either by unelected federal bureaucrats, or by unelected (and even less politically accountable) federal judges”. It is not obvious that only judges do and ought to have a say in situations where primary legislation is not clear.

Are the Irish and English prohibitions on assisted suicide clear? This is not a point I addressed at all in my post, but I can venture some observations here. Doubtless, section 2(1) is clear, but the presence of 2(4) complicates matters.Once one accepts (as I think one must, at least as a matter of law), that 2(1) engages Article 8(1) of the Convention, 2(4) takes on a character very different from the “130 or so” equivalent provisions (or, at least, those of them that do not violate Convention rights). It loses the character of a general supervisory power and adopts that of a discretion that must be exercised in accordance with individuals’ Convention rights. On this reading, 2(1) and 2(4) cannot be read in isolation but form part of a complete scheme the legitimacy of which must be assessed in the round. One could question whether administrative guidelines can ever be “law” for the purposes of this analysis. For my part, I think refusing to so recognize them is to privilege a formal conception of “law”. Guidelines are not simply internal tools but have an effect on the exercise of administrative powers and, in turn, on the legal rights of individuals. Given this effect, the foreseeability and predictability requirements of Article 8(2) kick in, and, more generally, disclosure of the guidelines becomes important.

As to the more general point about discretion and guidelines, I agree with Aileen. If enforcement discretion is being exercised, it is preferable that the relevant considerations be made publicly available. That is not to say that guidelines should always be required, just that administrative guidelines do no less violence to the rule of law than case-by-case decision-making behind closed doors.

Tuesday 21 May 2013

Reviewing Regulations

The Supreme Court of Canada heard argument last Monday in an important case on reviewing delegated legislation: Shopper's Drug Mart v. Minister for Health. The pharmacies lost in the Ontario Court of Appeal: 2011 ONCA 830; though Epstein J.A. delivered a convincing dissent. Up for discussion at the Supreme Court of Canada was the vires of the regulations and, in particular, whether they sought to use a power to regulate to prohibit commercial activities.

Monday 20 May 2013

Deference on Jurisdictional Questions: the SCOTUS Weighs In

Should courts defer to administrative decision-makers' interpretations of the limits of their own statutory authority? The Supreme Court of the United States finally answered that question in the affirmative today, in City of Arlington v. Federal Communications Commission. I think the majority is absolutely right, as I explain below. Indeed, Scalia J.'s majority opinion is must-read material for lawyers and law students interested in the concept of "jurisdictional error".

Tuesday 14 May 2013

Refusal to Review Factual Error

Common law courts are generally quite reluctant to review decisions for factual errors. Like all generalisms, this significantly understates the complexity of the area. Nonetheless, a recent Irish decision provides a fine illustration.

In Richardson v. Mahon, [2013] IEHC 118, the applicant challenged a factual assertion in a report issued by the respondent tribunal. The factual assertion was based on the applicant's alleged failure to account for a sum of money. But, as the applicant observed, counsel for the tribunal had never asked him to account for the sum of money in question!

Death, Democracy and Delegation

I have a new post at the UK Con Law Group blog. I praise the Ménard report recently commissioned by the Assemblé Nationale while reiterating my earlier criticisms of the Irish High Court decision in Fleming v. Ireland, [2013] IEHC 2.

Here is the closing paragraph:
Whatever its ultimate fate, the Ménard report’s orientation is preferable to that of the Irish High Court. Legislators cannot foresee every eventuality. A legitimate response is to vest discretion in administrative actors. Once this has been done, however, decision-making with a public aspect is preferable to decision-making behind closed doors. Moreover, published guidelines can provoke popular debate and legislative reaction, thereby playing a democracy-enhancing role. Even if the Ménard report proves legally flawed, it has highlighted the democratic potential of administrative guidelines.
I should say, given that I have come back to give it several kicks, that I think the High Court's analysis of the constitutionality of the prohibition on assisted suicide was much, much better than that of the Supreme Court. 

Thursday 9 May 2013

Revue annuelle de jurisprudence en droit administratif 2012-2013

J'espère de voir plusieurs d'entre vous la semaine prochaine. Je donnerai la Revue annuelle de l'Association du Barreau Canadien, à Québec mercredi le 15 et à Montréal vendredi le 17. Vous pouvez vous inscrire au site-web de l'ABC.

Au plaisir!

Deference on Questions of Procedural Fairness

Historically, judges have developed and enforced the rules of procedural fairness. Little or no deference is owed to procedural choices made by administrative decision-makers.

In an important new decision, however, Bich J.A. of the Québec Court of Appeal has challenged the prevailing orthodoxy. Bich J.A. taught law at my institution, the Université de Montréal, before her appointment to the bench and is a recognized authority on labour law and administrative law. She has been mooted as a possible appointee to the Supreme Court of Canada. Which is to say, her judgment in Syndicat des travailleuses et travailleurs de ADF - CSN c. Syndicat des employés de Au Dragon forgé inc., 2013 QCCA 793 demands careful attention from administrative lawyers across Canada and, indeed, beyond.

Monday 6 May 2013

Recent Publications

If you are a regular follower, you have probably seen these before, but two of my recent essays have been published and are now available for free download and citation:

The Unfortunate Triumph of Form over Substance in Canadian Administrative Law (2012) 50:2 Osgoode Hall Law Journal 317.

Courts and Copyright: Some Thoughts on Standard of Review in Michael Geist ed., The Copyright Pentalogy: How the Supreme Court Shook the Foundations of Canadian Copyright Law (University of Ottawa Press, 2013).

Procedural Fairness in Public Procurement

Public procurement is governed by a plurality of legal regimes. Statutes, regulations, international law and common law all have a say. Norms are enforceable by judicial review and (somewhat more lucratively) in private actions. Given the pluralistic nature of legal regulation of public procurement, it is unsurprising that norms associated more with public law have seeped into the private law framework. A recent Canadian example is Entreprise P.S. Roy inc. c. Magog (Ville de), 2013 QCCA 617.

Friday 3 May 2013

Out of Time, Back of the Line

What should a government do when its system for processing immigration applications has ground almost to a halt and is no longer fit for purpose?

The Canadian government tried reforming its "foreign skilled worker programme" on several occasions, to no avail. It ultimately enacted the following provision, s. 87.4 of the Immigration and Refugee Protection Act:
  •  (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class.

Thursday 2 May 2013

Deference to Doctors as Gatekeepers

The Irish Government has published the heads of its proposed legislation to implement the Supreme Court's judgment in the X Case and the European Court of Human Rights' judgment in the A, B, C case. Abortion is illegal in Ireland: the unborn child has constitutionally protected status. But in some cases, as the Supreme Court recognized in X, there will also be a threat to the life of the mother necessitating a termination of the pregnancy.

This is being parsed by others much more qualified than me (here is a good primer with helpful links) so I will just make two brief observations.

The first is that much is placed on the shoulders of doctors in the proposed legislation. In emergency situations, the opinion of one doctor as to the seriousness of the threat to the mother's life is required. In 'regular' situations, two opinions are needed. In cases where the threat to the mother's life is that she is suicidal, three doctors must be consulted. Appeals will lie from these doctors to a review board. There is much deference to doctors in this scheme. One wonders how medical decisions will be treated if -- as seems inevitable -- refusals to permit abortions are judicially reviewed in the High Court.

The second is that there is a risk that doctors may not wish to exercise this gatekeeper function. A related problem has (allegedly) occurred in Ontario in respect of medical marijuana. Sufferers from chronic pain have a constitutional exemption from the general criminal prohibition on cultivation and possession. Certification by a doctor is a pre-condition to the exemption. In R. v. Mernagh, 2013 ONCA 67, a challenge was made to this scheme on the basis that an insufficient number of doctors were participating and that some of those participating exercised their functions in an arbitrary manner. The challenge failed on appeal for want of convincing statistical evidence. Nonetheless, it demonstrates how reliance on doctors as gatekeepers might lead to trouble in the future.

Wednesday 1 May 2013

Internal Standard of Review

Suppose there is an administrative decision-maker. Suppose the legislature, in its wisdom, provides for an internal means of appeal. What standard of review should the appellate decision-maker apply to the first-instance decision-maker? And how should a court judge the choice of standard on judicial review?