Admin Law: History, Procedural Fairness and the Rule Against Bias

Admin Law: History, Procedural Fairness and the Rule Against Bias

Professor Crane

Gabriella Jamieson

Fall 2014- FINAL

1. INTRO TO THE ADMINISTRATIVE STATE

a. Administrative Law v Constitutional Law

b. Scope of Administrative Law

c. Theory and the Rule of Law

d. The Rule of Law in the SCC: a jurisprudential principle

e. The Functionalist thread in Canadian Administrative Law

JUDICIAL REVIEW

A. Supervisory Role

B. Constitutional Basis for Judicial Review

2. PROCEDURAL FAIRNESS

A. Historical Development of the Common Law

Historical Theories

Re Webb and Ontario Housing, 1978 ONCA

B. Framework for Analysing Procedural Fairness Rights at Common Law

Knight v Indian Head of School Division no.19 (1990 SCC)

Baker v Canada (MCI) (1999 SCC)

Mavi v Canada (Attorney General) (2011 SCC)

C. Framework for Assessing Participatory Rights

1. THRESHOLD QUESTION

Rights, Privileges, or Interests

Limitations and Exceptions to the Application of Procedural Fairness

i. “Legislative and General” Decision-Making

CARI v Canada (1994 FCA)

Homex v Wyoming (1980 SCC)

ii. Non-final decision Making

Re Abel (1979 ONSC)

Irvine v Canada (1987 SCC)

Taiga Works v BC (2010 BCCA)

iii. Public Office Holders, Emergencies, and Contractual Relationships

Canadian Arab Federation (2013 FC)

v. Justiciability (Royal Prerogative)

2. WHAT LEVEL OF PF IS REQUIRED?

1. The nature of the decision and the process followed

2. The nature of the statutory scheme

3. Individual Impact

4. Legitimate Expectations

Re CAP (1991 SCC)

Mount Sinai Hospital v Quebec (2001 SCC)

Mavi (2011 SCC)

5. Deference to procedures

3. REQUISITE LEVEL ACCORDED?

Content and Choice of Procedures

PRE-HEARING

1. Notice

2. Pre-hearing disclosure

HEARING

1. Oral or Written Hearings

2. Righ to Counsel

3. Disclosure of the “case against” (Right to a Decision on the Record)

4. Evidence and cross-examination

TIMELINESS

POST-HEARING

1. Duty to Give Reasons

4. DOES STATUTORY AUTHORIZATION APPLY?

Constitutional/Rights Documents Trump the Statutory Defence or Apply where PF would otherwise not apply

The Charter: s.7 Procedural requirements

The Canadian Bill of Rights- Federal Statutes

Other Quasi-Constitutional Provisions

5. IS THERE A REMEDY?

Remedies: Historical and Modern

Where the court can refuse relief:

Legislated Procedural Fairness requirements

THE RULE AGAINST BIAS

a. Pecuniary Interest Cases

b. Personal Relationship Cases

c. Prior Involvement Cases

d. Attitudinal Bias Cases

i. The Effect of Academic Papers written before Appointments

ii. The Relaxed Standard for Bias

iii. Institutional Bias

e. Statutory Authorization Defence

ADMINISTRATIVE INDEPENDENCE

1. INTRO TO THE ADMINISTRATIVE STATE

Admin Law is:

• Public Law: between the citizen and the state
• Judge-made Law: common law, not all governed by statute
• “General” Law:
• is an umbrella over other regulatory regimes
• not concerned with the substantive law pertaining to particular subject matters
• provides general principles that apply in many contexts and ranges of government decision making
• may be tailored for specific circumstances

The Purpose of Admin Law is:

• Controlling Government Power: to ensure legality and deter arbitrariness of the executive and administrative branch.
• To confine government power to its proper scope
• Promotes Accountability: of the executive and administrative branches of government, ensures effective performance of tasks assigned by the legislature
• Fosters Participation: by interested parties in the decision-making processes that affect them (through procedural rights)

a. Administrative Law v Constitutional Law

Intersections (are growing) / Distinctions

• Admin law is rooted in fundamental constitutional principles such as:
• The rule of law
• Legislative supremacy
• Separation of powers
• Constitutionally protected s.96 courts
• s.7: increasing the intersection (Insite) scope is narrow: according to current interpretations of s.7
• what procedures would have to be in place when s.7 is at play? What is a procedurally fair process in this type of decision making? (this is one leg of the principles of fundamental justice)

/

• Not concerned with the validity of statutes
• Embedded with what states and the rule of law should look like

• Legislative supremacy: trumps the common law, can take away procedural rights

• Admin law is primarily concerned with exercises of power by governmental officials and agencies that are made understatutory authority
• admin law is mostly concerned with exercises of powers that have been delegated by the legislature to government officials and agencies through statutes (control of the exercise of statutory powers)

Issues:institutional interrelationships: how far should the courts go in curbing government action? (Particularly comes up in substantive review)

b. Scope of Administrative Law

 The boundaries of Administrative Law are NOT always east to define

 The 20th century saw the rise of the “regulatory state”, evolved in response to perceived public problems

Within Scope / Outside Scope

• private organizations that exercise delegated statutory powers: subject to admin law in the exercise of those powers

• Universities: are usually treated as decision-makers that ARE bound by admin law principles in much of what they do (e.g. in making decisions about the tenure and promotion of Faculty members or decisions about student discipline)
• Some of the principles of admin law are extended to so-called "domestic tribunals"

• “Private” bodies that do not exercise statutory powers but that do hold quasi-monopolistic powers in relation to the governance of certain spheres of public activity (e.g. sports associations, clubs, religious bodies)

/

• corporations: set up under statute, granted powers by being recognized by statute not caught by admin law as they are not delegating statutorily delegated powers (look to the source and nature of the power given)
• not all uses of state power are dealt with through administrative law (contract, tort, or non-justiciable)

SPECTRUM OF ADMIN LAWAdministrative Boards can:

• adjudicate disputes between individuals
• grant approvals, permits, licences
• confer benefits based on statutory criteria (ex. Welfare, if criteria is met you have a right to benefits, and perhaps appeal and eventually to the courts)
• inquiry process (reports)
• impose restrictions or penalties

THE REASONS FOR CREATING ADMINISTRATIVE AGENCIES:

• Greater legitimacy
• depoliticized decision makers, as opposed to assigning function to a government department, although some have a foot in both the executive and the judiciary?
• Better decision making as there is a high degree of specialization and expertise (this could happen in a department as well)
• Expediency and convenience to having it outside the department (parliament may not have to answer for all of the agencies if they are “independent” especially for political hot potatoes)
• As compared to a court:
• Faster quicker decision making, higher volume (although consider the other side: if not happy with decision you can go to the courts anyways, creates another layer of court)
• Policy laden subject matter: courts should not have to decide policy, not suitable for adjudication
• Broader public participation: does not occur in the courts as much- no public consultation, panels, boards ect (although this is only valid when it actually occurs)
• Ideology: ex. Labour law, distrust of the courts – have many privative clauses to try to keep courts out- some matters are best left to administrative bodies

c. Theory and the Rule of Law

The Foundational Concept of the Rule of Law: it underlies administrative law and provides important rationales for what courts do it forms a part of our constitutional law

Quebec Secession Reference (1998 SCC): identifies ROL as one of the four underlying principles of the Canadian Constitution

Thick ROL / Middle Ground (“thinner”) / Thin ROL

• The ROL is expansive and substantive (liberal theory of substantive justice)
• ROL: what justice requires in a society in substance, ex. “good” law
• Can be used to measure the content of legislation, from a policy perspective: should be able to use ROL to measure any law to see if it meets moral requirements (ex. Doesn’t discriminate on racial grounds)  ideological concept that laws should not be arbitrary or discriminatory
• Because we have the Charter, ROL doesn’t need to be relied on in this way (which is good, because the concept could be arbitrary)

/

• In addition to the thin principles 
• Laws should be sufficiently clear and public (not vague)
• Laws should not be retroactive
• Laws should be general, not single out groups (?)
• Laws should be relatively stable and consistent over time

/

• Formal and primarily procedural
• The basic principle is legality: government accordance with law
• The government must act through law, rather than through discretion
• The lawmaker is subject to law (until the law is changed)
• There is not much about the substantive content of law
• Because we have the charter to protect substantive rights, the courts generally ascribe to this level of ROL theory

Theorists:

Mary Liston (Chapter 2 of textbook): the ROL is characterized by three interrelated features:

(1) a jurisprudential principle of legality

(2) institutional practices of imposing effective legal restraints on the exercise of public power within the three branches of government

(3) a distinctive political morality shared by the Canadian political community

Characteristics of a state and legal system committed to the ROL: prevention of arbitrariness

• Public officials are authorized and bound by the ROL in exercising their powers
• Formal equality (all are equally accountable)

ROL: organizes related principles such as the principle of legality, separation of powers, responsible government, judicial independence, access to justice, fundamental justice, honour of the Crown…

The Legality Principle restrains arbitrary power by:

1) constraining the actions of public officials

2) regulates law making

3) minimizes harm created by the law itself

a. Diceyan Theory (1885) Classical Liberal- legal positivism: Liberty imposes a negative obligation on government to not interfere with individuals.

• no one above the law (gov must act within lawful authority)
• law is administered by the ordinary courts of the land, no one can be punished except for a breach of the law (legality principle)
• these are still core ideas in administrative law (discretion is arbitrary)

John Willis (1930’s): One of a few Canadian legal scholars that embraced the regulatory state (counter to Dicey).

• He supported the creation of “governments in miniature” to hear policy disputes: this addressed current needs, rather than “abstract ideals” that the court deals with.
• Favoured the creation of administrative appeals rather than court review.

b. Joseph Raz and Lon Fuller: recommend a set of formal characteristics that guide all legal subjects (including public officials)

• it permits predicable legal responses- to avoid sanctions and benefit from freedom
• generally is important for criminal law
• determinacy in the law: sees the ROL as legal formalism, laws meet minimum requirements for procedural justice, rather than making resulting laws substantively just
• compliance with the ROL occurs voluntarily, because it confers benefits
• Fuller: reciprocity: lawmakers have to create the optimal legal conditions necessary for voluntary compliance (ex. Ensuring a match between rules as announced and rules applied)
• Does not presume administrative bodies are inherently lawless: if they follow the above principles, they will be more likely to engage in lawful decisions, so that courts may be obliged to show deference
• Raz: law must be capable of guiding the behaviour of its subjects- the legality principle is a practical guide for making effective law, so it constrains the harms created by law.
• Explicitly includes the principle of judicial independence and access to justice, and access to effective remedies
• ROL is instrumental for realising democracy, equality and human rights, because it constrains arbitrariness and vagueness in law (46).
• We require both democracy and the ROL, because courts and legal culture cannot respond as quickly as democratic politics. However they should be separate:
• Through separation of powers, judicial independence, and a complex institution staffed by competent and impartial officials using predictable and fair procedures to make reasoned, public decisions.

d. The Rule of Law in the SCC: a jurisprudential principle

In sum: The ROL is an underlying principle of the Constitution, it cannot per se be used to strike down statutes, and it mainly pertains to constraining the executive and administrative apparatus of the state

Roncarelli v Duplessis:

• No one is above the law

Manitoba Reference:

• The law is supreme, even over government
• The rule of law requires the creation and maintenance of an actual order of positive law

BC v Imperial Tobacco:

• Embraces the principles above, as well as that ROL requires the relationship between the individual and the state to be regulated by law
• ROL requires and includes judicial independence
• Left open the possibility that it may include additional principles
• Unanimously rejected that ROL requires legislation be prospective, general, not confer special privileges on the gov and ensure a fair civil trial
• The government action constrained by the ROL is primarily that of the executive and judicial branches- not the legislative branch (60)
• RoL per se cannot strike down statutes  “Protection from unjust or unfair legislation “properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box” (Major J. in Imperial Tobacco at ¶66 qtd. in Liston CB p. 59)

BC v Christie:

• General access to legal services is not an enforceable aspect of the ROL

Dunsmuir v New Brunswick:

• All exercises of public authority must find their source in law
• All decision making powers have legal limits, derived from the enabling statute, the common or civil law, or the constitution
• JR: the means by which courts supervise those who exercise the powers, to ensure no one oversteps their authority

e. The Functionalist thread in Canadian Administrative Law

 Administrative law should promote the effective functioning of the modern state (regulation of private power in the public interest and promotion of greater social and economic equality)

Concern: The courts are impeding the effective functioning of the state, imposing procedural fairness that undermines the political process

Specific Concerns:

1)Concern that the courts have too zealously guarded common law values against the state who may have redistributive aims (ex. Prefer private property rights in the face of a regulatory state’s attempt to achieve redistribution)

2)Not all decision makers should have an adversarial process imposed on them: this favours those who can afford to engage in litigation and it interferes with the efficiency of the admin system

3)Sometimes, policy must be infused into statutory interpretation: the courts do not always have the monopoly on how to interpret legislative intent in the way that will bestachieve the legislative purpose, and some specialized agencies are better suited than generalist judges

The importance of perspective:it is essentially a political debate (legitimate scope and content of judicial power)

• Green light = functionalist view, friendly to the state, courts should not unduly restrain a state trying to do good things. Law can be a facilitator of regulation, redistribution
• Amber light = now is more fine-tuned, depends on what the state is doing
• is the state interfering with individual rights? If so, more towards the red light (?)
• resolve ROL concerns by broadening public participation in the administrative process
• still police agencies from stepping outside of their enabling statutes
• Red Light: Rule of Law, focus on upholding private property rights and restraining stat power

JUDICIAL REVIEW

A. Supervisory Role

Non-Judicial Mechanisms for containing State Power: / Judicial Mechanisms for Control of state power:

• Democratic elections/ opposition parties
• Politics: legislative scrutiny, standing committees, appointments, special reports, question period
• The media
• Pubic demonstrations/strikes
• Ombudsperson, Auditor General, Attorney General’s office
• Internal appeal in administrative structures (or to cabinet)

/ 1) Original jurisdiction of the court (ex. Tort, contract: “ordinary” court action)
2) Right to appeal (no appeal unless the statute allows for one)

• No inherent right to appeal

3) Judicial Review by superior courts of inferior courts (inherent power, not arising from statute)

• Or Federal Court (statutory court- no inherent jurisdiction) for review of federal tribunals
• Can be limited to only PF through statute: but the JR power exists no matter what the statute says
• Grounds for Review:
• Procedural (oral hearing, reasons, bias, independence, d-maker was not properly authorized (improper delegation of authority under the statute)
• orsubstantive review (no evidentiary basis, error in scope of discretion)

B. Constitutional Basis for Judicial Review

Issue: To what extent does the Constitution guarantee the power of s.96 courts to conduct judicial review of the decisions of provincially constituted administrative agencies?

there is no express guarantee of judicial review of administrative action, it is IMPLICIT in the judicature provisions of the Constitution(ss.96-101)

Prior to Crevier: the SCC had held that the judicature provisions of CA 1867 limits provincial legislatures in relation to the kinds of powers that can be given to administrative tribunals: can’t give a tribunal exclusively s.96 court powers

Crevier v Quebec (AG) (1981 SCC) Constitutional protection of Judicial Review

Facts / Quebec created bodies to discipline members of particular professions. Then they created an appeal to another administrative tribunal (“professional tribunal”) that was staffed by provincial court judges. It had a privative clause barring review of its decisions (even jurisdictional)
Held / The privative clause is unconstitutional: tribunals are not capable of determining the scope of their own jurisdiction
RULE / The judicature provisions have been interpreted so as to guarantee the power of the superior courts in the provinces to conduct judicial review of provincial administrative action on jurisdictional grounds
Res Ten TEST / 1) Historical inquiry: is the impugned power one that was exclusively exercised by a s.96 court at Confederation
2) if yes, is it a judicial power? (normally a dispute between parties to be adjudicated through the application of a recognized body of rules, in fairness and impartiality)
3) Is the power, in its institutional context, sufficiently changed so that the agency should be allowed to exercise it? Is it only ancillary to a broader scheme?
Reasons /

• There is a guarantee of JR that is implicit in s.96 of the Constitution Act. Attempting to shield the tribunal from JR was attempting to create a superior court, which the province can’t do.
• superior court judges have core powers: power to determine what it’s power is – inherent jurisdiction. These core powers cannot be given to provincially constituted bodies (can’t determine the limits of their own jurisdiction)
• courts can review tribunals for “jurisdictional errors”
• Breach of PF
• Errors of law
• Decision on fact where there is no evidence
• a provincially constituted tribunal that is immunized from all review with privative clauses: unconstitutional

General Principle: the judicature provisions constitutionally entrench the right of individuals to seek review of administrative action by a judiciary, to ensure the administrative action has been lawfully authorized (ROL concern)