Admin Final Outline – Janisch Spring 2010
“Not all Administrative bodies are the same. Indeed this is an understatement. At first glance, labor boards, police commissions, and milk control boards may seem to have about as much in common as assembly lines, cops and cows! Administrative bodies do, of course, have some common features, but the diversity of their powers, mandate and structure is such that to apply particular standards from one context to another might well be entirely inappropriate”
o LeBel in Blencoe v. BC (HRC)
Chapter 8
Standard of Review: The Pragmatic and Functional Test
Introduction
· JR of admin action brings up different sets of questions than normal court proceedings
o Is there always only one correct answer?
o Who is better situated to determine the answer; the first level specialist decision-maker or the generalist reviewing judge?
· A court called upon to review the interpretation or application of a stat provision by an admin decision maker will apply a pragmatic and functional test to determine who, as between the court and the decision maker, is in the best place to make the determination of the issue
· The rest of the test tells the court how much deference to give the original decision
· Deference à quantified through standard of review applied to the impugned decision
· While procedural matters usually review on correctness standard, and there is strong access to courts
· Substantive matters à argue for higher levels of deference, less access (though not entirely cut off from court)
The Prequel (“Bad Old Days”)
· JR ordinarily available for:
1) breaches of procedural fairness
2) errors of law
3) abuse of discretion
4) factual findings made in the absence of evidence
· Review in face of privative clause was all or nothing:
o If a decision is within jurisdiction (within ambit of Priv. Clause), hands off
o If a decision is outside jurisdiction = review
· Used to be 2 techniques used by courts to get around privative clauses/justify reviewing a decision for being outside jurisdiction:
1) “preliminary/collateral question” doctrine (used in Parkhill)
§ by asking a collateral question at outset, tribunal goes beyond its jurisdiction
2) “asking the wrong question” doctrine (used in Metropolitan Life)
§ These techniques criticized as devices manufactured by courts to meddle in spheres that the leg. had deliberately and explicitly excluded them from
· Privative Clauses
o “Red flags” waves in front of courts
o Courts WANTED to challenge them
o Judges were immediately sympathetic to your cause, and would ignore the tribunal’s decision in favor of substituting its own
o Courts would use “jurisdiction” to say an admin body had no place to make the decision and \ could get in
§ “Decisions or findings that are not lawfully made are nullities; one way in which a decision may be unlawfully made is where the decision maker lacks jurisdiction (legal authority) under the constitutive statute to make the decision; therefore, decisions or findings that are insulated by a privative clause do not include actions that exceed the jurisdiction granted to the decision maker” Excerpt from Anisminic
o Why jurisdiction? Courts must always be subject to q’s of jurisdiction (Crevier) otherwise creating a s. 96 court
o Usually, the issue is the interpretation of a statutory provision
§ Judges assign themselves the ask of decision if the issue fell within jurisdiction, and therefore within the ambit of the PC, or whether it was a “jurisdictional question” that determined the outer boundary of the decision maker’s authority, and therefore in the realm of the court
o Parkhill Bedding and Furniture v. International Molders
§ Parkhill purchased assets of a bankrupt company that had been bound by a collective agreement with the union of the bankrupt company
§ The MB Labor Board determined that Parkhill was under the Labor Act a “new ER to whom passes the ownership of the business” and that he was bound by the collective agreement with the union
§ Parkhill sought JR
§ MB CA Decision: The board’s order exceeded it’s jurisdiction
· The question of whether Parkhill was a new ER was preliminary or collateral to the main issue that the board had exclusive jurisdiction to address, namely, whether the collective agreement bound Parkhill
· Resolving whether he was a new ER was a matter of bankruptcy law, not labor law
· Went on to determine that the board wrongly determined him to be a new ER
o Metropolitan Life v. International Union of Operating Engineers
§ Facts: Ont Labour Board certified a union as the sole bargaining agent for a group of EE’s engaged in janitorial and maintenance work. Provision relied on to certify required evidence that at least 55% of the EE’s were members of the union. They found it was and granted certification
§ The ER sought JR
§ SCC Decision:
· Although the question of whether 55% of the EEs were members was definitely in jurisdiction of the board, the board lost jurisdiction because it used a fault reasoning process to determine that yes, it was
· Used the “asking the wrong question technique”
o They board failed to deal with the question remitted to it (whether the EE’s in question were members of the union at the relevant date) and instead asked the question “whether in regard to those EES there has been fulfillment of the conditions for membership”
o These two techniques are formalistic, malleable, instrumental devices used by courts to meddle
o They have been discarded and issues of jurisdiction muted for the most part
· Problem: Over/Under Intervention
o Courts would either over intervene, especially in labor cases, or under intervene, claiming not a jurisdictional question so not going to address it
· Metro life led to big division in the courts
o The ON CA had written a very strongly worded judgment only to have the SCC overturn it
o Strongly influenced by Anisminic
The Blockbuster: CUPE v. New Brunswick Liquor Corporation
CUPE v. NB Liquor Corporation (SCC 1979)
· Shifted the legal landscape to curial deference in 3 ways
1) Administrative actors no longer “inferior tribunals”, but deserve respect as specialized decision-makers
2) Often there is not a single correct interpretation of legislation (= rationale for deference)
3) Previous lack of principled framework to distinguish reviewable questions from those protected by a privative clause (what is and is not jurisdictional)
§ Jurisdictional question = standard of correctness (less deference)
§ Questions within jurisdiction = standard of patent unreasonableness (more deference)
· Facts: Employer complained that union was picketing (contrary to a provision) and union complained that employer was filling striking employee’s positions with management personnel (contrary to a provision)
o Issue in case was interpretation of the latter provision, specifically whether “with any other employee” includes management personnel
· Dickson:
o A court should only interfere (by labeling as jurisdictional error), an interpretation of the provision that is “so patently unreasonable that its construction cannot be rationally supported by the relevant legislation”
· Important to note that Dickson doesn’t propose an alternative approach, and further it doesn’t get RID of jurisdiction doctrines, it just muted them (because s. 96 always have to be able to get in via jurisdiction – Crevier came after CUPE)
The Sequels
· Bibeault (1988 SCC)
o Not totally following CUPE
o Beetz:
§ Cites CUPE but doesn’t use the word “deference”
§ The Central question for him was: Did the legislator intend the question to be within the jurisdiction conferred on the tribunal?
§ Framing question in this way retains the rule of law commitment to parliamentary supremacy
A. Judicial Review is Constitutionally protected
o Legislation cannot completely insulate from courts with a privative clause (Crevier 1981 SCC) + Royal Oak, Pasienchyk
o “The role of the superior courts in maintaining the rule of law is so important that it is given constitutional protection” (Bibeault)
B. Beyond Privative Clauses
· CUPE’s “Should the court defer” expands beyond tribunals that have privative clauses to where statutes have finality clauses, preserve the option of JR or provide appeal to the courts
· Jurisdictional question is replaced by expertise as key determinant of standard of review (Pezim 1994 - Iacobucci)
· A 3rd standard of review is created: reasonableness simpliciter (by Iaccobucci in Southam)
o “An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination.”
o Retrospectively, it is the standard that was used in Pezim
Pezim (1994 SCC Iacobucci)
· BC Securities Commission had jurisdiction over parties and subject matter (given curial deference)
· The statute gave a right of appeal to the courts
· BUT Iacobucci wanted to show deference (he was securities lawyer, knew the nature)
· “Even where there is no privative clause and where there is a statutory right of appeal, the concept of the specialization of duties requires that deference be shows to decisions of specialized tribunals on matters which fall squarely within the tribunal’s expertise”
· Features that pointed to greater deference to specialized BCSC:
o Subject area is elaborate/complex
o Commission is granted public interest mandate, plus broad discretion to determine what is in the public interest
o Commission has broad powers to administer the statute, including authority to conduct investigations, audits, and hearings to issue orders
o Statutory definitions (including material change) are only meaningful within factual regulatory context
o Agency played a policy development role in addition to adjudicative functions
o Interpretation of the statutory provision in question “goes to the heart of the regulatory expertise and mandate of the Commission”
Southam (1997 SCC Iacobucci)
· Competition Tribunal found that Southam’s acquisition of newspapers within a given advertising market lessened competition
· SCC:
o Emphasizes complexity of statutory scheme, and Tribunal is expert
Between Southam and Pezim, the standard of “reasonableness simpliciter” arose.
National Corn Growers
L’H-D: labour relations, telecommunications, financial markets, and international economic relations are places courts are not as expert as tribunals to deal with issues Parliament has chosen to regulate through admin bodies
The Story so far: Pushpanathan v. Canada
· Framework for determining appropriate standard of review established in Pushpanathan (SCC 1985, Bastarache)
o 4 Factors relevant to determining standard of review (But first 2 are really the thrust of the exercise):
1) Legislative indication of what judicial supervision should look like
§ Privative Clauses: Presence tends to favor deference, finality clause less so
§ BUT effect of PC can be outweighed by expertise
2) Expertise = Most important!
a) characterize expertise of tribunal
b) Court considers own expertise relative to tribunal
c) Identify nature of issue relative to expertise
· Ex: Because of tribunal expertise in Southam and Corn Growers, applied PU = deferential
· Deference Spectrum:
o Lower end = human rights – HR tribunals impose decisions on parties that have direct influence on society at large in relation to basic social values
o Questionnable = decision-making bodies staffed with elected officials (Chamberlain = reasonableness)
o High = Labour arbitrators, Professional bodies (Law Society in Ryan)
o Quite High = Labour boards
o Higher end = economic, financial, technical, securities commissions, int’l trade tribunals, telecommunications
· Expertise analysis is limited to statutory role of administrative actor, not the merits of the actual person occupying the position
3) Purpose of the Statute as a Whole, and the Provision in Particular
§ If statute is polycentric = more deference
· Polycentric = engages a balancing of multiples interests, constituencies, and factors
§ If statute is more bipolar = less deference
§ Justification = judges have more expertise in bipolar issues
4) Nature of the problem (question of law, fact, or mixed law and fact)
§ Question of law = less deference
· Precedential value (the more, the more legal)
o “pure” law (Barrie Utilities)
o concept derived from common law/civil code (Bibeault)
o general question of law (Mossop)
o not scientific or technical (Mattel)
o HR issue (Pushpanathan, Chamberlain)
§ Question of mixed law/fact = neutral
§ Question of fact = more deference
§ Charter question = NO deference, standard of correctness
· Pushpanathan
o Pushpanathan made refugee claim in Canada
o Before claim heard, convicted of trafficking narcotics = excluded from refugee protection
o Issue: whether “acts contrary to the purposes and principles of the United Nations” included a criminal conviction for trafficking
· Chamberlain (SCC 2004)
o Local school board passed resolution NOT to authorize books showing same-sex families to be used in the classroom
o Court: reasonableness standard of review
· Ryan
o Sanction for misconduct on lawyer
o HUGE deference to expertise of Law Society
o Court: reasonableness SOR
Coming Attractions
A. Disaggregation
o Don’t isolate issues and subject each of them to a different SOR (Retired Judges)
vs.
o Isolate each issue (Mattel, dissent in Canadians with Disabilities)
o Up for the court to make a decision and take a principled approach
B. Is 3 Standards Too Many?
o Lebel summarized all the criticism of having 3 standards in Toronto (City)
§ Called for 2 standards: correctness and reasonableness
o Court blended PU and R into “demonstrably unreasonable” in Canadians with Disabilities
C. Converging Tests?
· Overlap b/w Pragmatic and Functional Test and Procedural Fairness 5 Factors
· Both list nature of decision, statutory scheme, and expertise as relevant
D. The Last Word on Legislative Intent
o 2004 BC Administrative Tribunals Act:
§ If enabling statute has privative clause: PU SOR
§ No privative clause:
· Questions of fact: unreasonableness
· Questions of law: correctness
· Exercise of discretion: PU