Liam Sadmin CAN Paul S Edits #Dhand2013

Liam’sAdmin CAN [Paul’s Edits] | #dhand2013

Table of Contents

Framework for Analyzing an Administrative Law Problem

A. Is Judicial Review Available? (Now, or at all)

(1) Is there a basis for the court to exercise its discretion not to grant relief?

(2) Is the decision/body amenable to judicial review?

B. Procedural Fairness

(1) Is a duty of fairness owed?

(2) What is the content of the duty?  Hearing Rights

(3) What is the content of the duty?  Rule against bias

C. Substantive Review

(1) What is the applicable standard of review?

(2) Should the decision stand when reviewed under the standard identified?

D. Remedies

E. Conclude

I. Introduction

Basics

Baker

The Rule of Law and the Administrative State

Tribunals: Why Bother?

Common Law Judicial Review Remedies

II. Procedural Fairness

A. Duty of Fairness

Sources of Procedural Obligations & Threshold (Common Law Duty)

Limits on the Duty (Legislative Decisions)

Content of Hearing Rights (Regardless of Source)

Reasons

Charter s 7 & the Bill of Rights

B. Independence, Impartiality, and Bias

Institutional Independence

Personal Bias

Institutional Bias

III. Substantive Review

A. Standard of Review Analysis

Background

Standard of Review Analysis

Correctness

Reasonableness

Statutory Standards of Review

B. Substantive Review & the Constitution/Charter

Charter Rights and Administrative Law Review

Tribunal Jurisdiction to Consider Constitutional Issues

Note:Solid box = from Austin’s 2012 CAN | Dotted box = fun pix c/o Ruby | Double box = Lili’s thoughts

Framework for Analyzing an Administrative Law Problem

A. Is Judicial Review Available? (Now, or at all)

Two potential issues:

(1) Is there a basis for the court to exercise its discretion not to grant relief?[1]

(2) Is the decision/body amenable to judicial review?

B. Procedural Fairness

(1) Is a duty of fairness owed?

(i) Identify potential sources of the duty – common law, statute (usually enabling), constitution, Bill of Rights…

(ii) Threshold analysis (common law – Cardinal/Knight; constitutional - s. 7 analysis or analysis under relevant section of Bill of Rights, or other quasi-constitutional leg.; Statute – may define procedural rights)

(iii)Baker analysis

(2) What is the content of the duty?  Hearing Rights

(i) Review Baker 5 factors (analysis of the context) to identify the relative ‘level’ of procedural protection called for in the context;

(ii) Consider how that “level” translates into particular hearing rights;

(iii) Analyze whether the procedural steps taken in the circumstances were adequate. Apply any additional criteria to evaluate the adequacy of procedural protections associated with particular hearing rights (i.e., right to counsel, duty to give reasons, etc…).

(iv) Conclude.

Notes:

• If it helps, develop a checklist of procedural rights (notice, discovery/disclosure, x-exam…etc.) to run through in step 2.
• Remember that the Baker factors relate to the common law duty of fairness, but are applied in the statutory and constitutional contexts as well. But statutes (and contracts) must be considered to see how and if common law procedural prescriptions are altered or replaced. If the analysis is under s. 7, don’t forget about s. 1.
• Don’t lose track of the point of all of this: IS THE PROCESS FAIR IN ALL THE CIRCUMSTANCES?
• Remember (could you forget???) that content of the duty of fairness is flexible and variable. The goal is not procedural perfection, but a balance between fairness and efficiency (see statements of L’Heureux-Dubé, for e.g., in Knight and Baker).

(3)What is the content of the duty?  Rule against bias

(i)Identify potential breaches of the rule against bias and whether they raise issues with respect to personal bias, institutional bias, independence or all three. If personal, go to 2. If institutional, go to 3. If independence, go to 4.

(ii)Personal bias:

(a) Identify the relevant standard of bias (draw from the Baker analysis regarding context), including whether there are particular interests that lead to an assumption of bias.

(b) Analyze whether the facts satisfy the applicable standard.

(iii)Institutional bias:

(a) Identify the relevant standard of bias that should apply (draw from the Baker analysis regarding context).

(b) Analyze whether the facts satisfy the applicable standard.

(iv)Independence:

(a) Consider what legislative intent is and what the context (draw from Baker analysis) demands relative to the 3 indicia of independence.

(b) Analyze the facts to see if the facts satisfy the required level of independence.

(c) Consider whether there is statutory authorization for any problems with independence that are identified.

(v)Conclude.

Notes:

• Don’t lose track of the point of all of this: JUSTICE MUST NOT ONLY BE DONE BUT MUST BE SEEN TO BE DONE.
• Consider whether there is statutory authorization for the bias (i.e., whether the common law procedural prescriptions have been altered or replaced).

C. Substantive Review

(1)What is the applicable standard of review?

(i) Is the applicable standard of review set out in a statute (Consider the Federal Courts Act, Administrative Tribunals Act or enabling legislation in other jurisdictions)? If so, apply as set out the statute.

(ii) Where the standard of review is not set out in a statute, apply Dunsmuir analysis to determine the standard of review.

(a) Step 1 – consider whether precedent determines the standard of review.Precedent tells us, at least, that certain types of questions are correctness.

(b) Step 2 – analyze the factors to determine (or confirm) the standard of review (see para 48 in Dunsmuir excerpt)

(iii) Conclude.

Notes:

• Pushpanathanmay be helpful in understanding the relevant factors.
• Remember that in Dunsmuir, and as reinforced by the majority in Khosa, the analysis is aimed at discerning which institution possesses the relative expertise on the issue at hand (courts or the tribunal), in accordance with legislative intent.
• Remember also that Dunsmuir suggests that the analysis should focus on the review of the decision itself (i.e., the next part of the analysis), not the analysis of the standard of review.

(2) Should the decision stand when reviewed under the standard identified?

(i) Apply the standard of review

(a) Where the standard is reasonableness, analyze the context (reasonableness “takes its colour from context”: Khosa)

(b) Apply the appropriate methodology of review to the decision being reviewed.

(ii) Conclude

Notes:

• There is no set format or set of factors to confine the contextual analysis that appears to be part of the application of the reasonableness standard. Take your cues from the cases and be ready to reason to your characterization of the appropriate approach to deference in the context and hand.
• The contextual application of reasonableness includes Charter rights/interests/values.

D. Remedies

What are the consequences of any breaches of procedural fairness or successful grounds for substantive review?

What remedy is appropriate? (And, if not dealt with above, should the Court exercise its discretion not to grant a remedy?)

E. Conclude

Identify probable result, and best grounds/arguments supporting that result as appropriate.

I. Introduction

Basics

The core function of judicial review of administrative action is to examine how and why the courts decide to intervene in the administrative process. Administrative law is roughly divided into three parts:

(1) Procedural fairness: is this an issue courts should review and, if so, did the administrative decision-maker use the proper procedures in reaching a decision;

(2) Substantive review: regarding the decision itself, did the administrative decision maker make an error of the kind or magnitude that the court is willing to get involved in; and

(3) Remedies and the legitimacy of judicial review: if there are procedural or substantive defects in the decisions, should the court intervener and, if so, how.

Baker

Baker was a seminal case that dealt with a number of administrative law issues. The decision being reviewed was discretionary in nature (the concept of discretion refers to a choice of options within the jurisdiction of that decision maker (para 52)). The remedy in the case is held to have a problem with procedural fairness, is sent back for review by another officer. It is important to note that this outcome means that the actual decision is not taken out of the same tribunal’s hands, it’s just sent back to do it again. The case was decided on the procedural ground of a reasonable apprehension of bias (will be looked at in further detail, later), however it also contains an important discussion on the duty of fairness as well as a number of other areas. Ultimately, this case stands for a lot of major developments:

(1)Established that the proper approach to the content of the duty of fairness was a spectrum approach;

(2) Established a duty to give reasons (where required on the spectrum analysis) in administrative contexts;

(3) Established that discretionary decisions are to be reviewed by the same methodology as other types of decisions (now standard of review analysis);

(4) Established that international human rights norms (from conventions etc) may apply as “values” without the implementation of those norms through statue. In this way,Baker is saying that even if not used domestically, the court should be looking to international norms;

(5) Marked a key moment in the move away from “formalist” approaches to administrative law and brought together developments into a more coherent, deferential approach. Pre-Baker administrative law was focussed on just making administrative decision makers abide by what they were allowed to do (there was almost no deference). It was a formalist model about limiting the powers of administrative decision makers. The theorist Dyzenhaussupports this more democratic role and this is the way the courts turn in Baker – says that there is such a thing as discretion in decision making;

(6) Says that while discretion does exist, there are restraints on it even if they have not been implicated into domestic law, such as international covenants and human rights standards. L’Heureux-Dube: “discretion must be exercised in accordance with the boundaries imposed in the statue, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society and the principles of the Charter” (para 56). The court looked first at procedural review and asked whether there was a duty of fairness owed in deciding Baker’s application, then asked if this duty had been met by looking at what opportunities to participate were owed to Baker (oral hearing, notice,etc), and then whether the decision-maker’s notes gave rise to a reasonable apprehension of bias. The court then looked at substantive review and decided that the standard for review for discretionary decisions should be “pragmatic and functional” (changes in later case law to standard of review). Then the court asks whether the decision met that standard which involved looking at what rules or principles or values apply to guide or constrain the discretionary decision and whether the Convention applies.

Baker established the spectrum approach to the content of the duty of fairness. It also established a duty to give reasons (where required on the spectrum analysis) in an administrative context. It also established that discretionary decisions are to be reviewed by the same methodology as other types of decisions (then pragmatic and functional analysis, now the standard or review analysis). It also established that international human rights norms (from conventions) may apply as values without the implementation of those norms through statue. The duty of procedural fairness will require the provision of a written explanation for a decision where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances. The test for a reasonable apprehension of bias is what would an informed person, viewing the matter realistically and practically and having thought the matter through, conclude? Would he think that it is more likely than not that the decision maker, whether consciously or unconsciously, would not decide fairly? In this case, it was determined that Baker was not accorded procedural fairness (she had children and wasn’t given an interview, the children weren’t allowed to make submissions, the written decision didn’t cite reasons by the decision maker, and the written notes of one of the immigration officers gave rise to a reasonable apprehension of bias). A decision that is administrative and that affects the “rights, privileges or interests of an individual” will trigger the application of the duty of fairness” (Cardinal v Kent Institution). The concept of procedural fairness is eminently variable, and its content is to be decided in the specific context of each case. Several factors have been recognized in the jurisprudence as relevant to determining what is required by the common law duty of procedural fairness in a given set of circumstances. (1) The nature of the decision being made and what is the process being used to make it: the closeness of the administrative process to the judicial process should indicate how much of these governing principles should be imported into the realm of administrative decision making;(2) The nature of the statutory scheme: greater protection must be given if there is no appeal procedure provided for in the statute or when the decision is determinative and no further requests can be submitted;(3) The importance of the decision to the individual or individuals affected: the more important, the more stringent the procedural protections that will be mandated;(4) The legitimate expectations are of the person challenging the decision: if the claimant has a legitimate expectation that a certain procedure will be followed, then this procedure will be required by the duty of fairness (doesn’t include substantive rights)(5) The choices of procedure chosen by the agency itself, particularly when the statute leaves to the decision maker the ability to choose its own procedures.

The Rule of Law and the Administrative State

Theorists on the Rule of Law

In terms of the conception of the rule of law, there is an on-going debate between many different theorists over what it means. There are two main approaches: (1) a formalist approach: the idea that valid laws must meet procedural requirements (eg. be published), and (2) a substantive approach: more of a content driven approach that includes substantive rights (eg. equality). Dicey is a major proponent of the common law courts, and the idea that judges have supervision power that comes from the king and that anyone else is an inferior decision maker. The criticism of this approach is that judges tend to be stuffy old white men. Fuller and Raz are two other theorists that have come up with a list of principles of rule of law that include no retroactivity, clarity, generality, and stability. Much of their list centers around constraints surrounding the making of law. Fuller focusses heavily on morality and respect, while Raz takes a similar position but is more of an instrumentalist (focusses on equality). Binghamwrote a book on the rule of law,saying that it contains a number of ingredients including being easy to discover what the law is.

Dicey (formalist) believed that the rule of law contained three features: (1) the absence of arbitrary authority in the government, but especially the executive branch and administrative state, (2) formal legal equality so that every person in the political community is subject to law, and (3) constitutional law that forms a binding part of the ordinary law of the land. In Dicey’s view, the parliament was sovereign and supreme. It was the source of all ordinary power and ought to be the source of all governmental power. The courts acted as a check on all of this. Dicey did not believe that administrative bodies should be trusted, and that deference should not be shown to them by the courts. Dicey’s view held that courts did not have to defer to decisions made by administrative bodies: he argues that correctness should be applied as the standard of review in order to scrutinize administrative decisions on their merits.

Fuller and Raz believed that there should be public, formal characteristics that could guide the conduct of all legal subjects. These include: publicity, non-retroactivity, clarity, generality, consistency, stability and capability of being obeyed. Fuller believed that law had “inner morality”, and that lawmakers therefore had an interest in optimizing the legal conditions necessary for, and conducive to, voluntary compliance and cooperation. He called this relationship between government and the citizen “reciprocity” because the enterprise of law was not a one-way projection of authority onto legal subjects. Fuller disagreed with Dicey’s view of legality; he did not believe that administrative bodies are inherently lawless. For Fuller, procedural fairness was very important. Raz believed that law must be capable of guiding the behavior of its subjects. Most of the requirements we associate with the rule of law can be derived from the idea that the rule of law as the principle of legality acts as a practical guide for making effective law, thereby constraining the harms created by law itself. Raz also believed that judicial independence preserved the rule of law.

Different Approaches to the Rule of Law and Judicial Review

Formalism / Procedural / Substantive
Judicial review as the policing of the separation of powers, application of the rule of law to restrain each branch of government to its proper “constitutional function”. Deference as submission to legislative intent. No deference required on matters of law (as courts are the experts) / Courts are not the sole guardians of the rule of law, although institutions are still specialized. Appropriate degree of inquiry is contextually dependent.
Judges as interpreters of guided discretion; fidelity to legislative intention (Raz) / Judicial review as ensuring consistency in fundamental democratic principles between all branches of government (substantive review appropriate).
Courts don’t have monopoly on the interpretation of law; it is shared with the legislatures, administrative agencies, and citizens. But they do have the final word, at least provisionally

The Rule of Law Generally