2011 BCCAT Educational Conference & Annual General Meeting Recent Developments in Administrative Law Professor Mary Liston Faculty of Law University of.

2011 BCCAT Educational Conference & Annual General Meeting

Recent Developments in Administrative Law

Professor Mary ListonFaculty of Law

University of British Columbia

October 3, 2011River Rock Conference Centre

Richmond, BC

1. Standard of Review

a. Legislative Intent

b. Reasonableness v. Correctness

c. Subordinate Legislation

2. Duty to be Fair

a. Content

b. Legitimate Expectations

c. Adequate Reasons

3. Constitutional Developments

a. Remedies

b. Public Law and Private Law: Intersection

4. Discretionary Decisions

a. Fettering

5. BC ATA

a. Patently Unreasonable Standard: Discretionary and Non-Discretionary Decisions

Overview

It’s ALL about the STATUTE

1. Standard of Review

Standard of Review

Proper interpretive approach to statutes:

The “General Roadmap”

Words are read in:

Entire context

Grammatical and ordinary sense when not defined

Harmoniously with the scheme of the Act, the purpose or object of the

Act, and the intention of Parliament

Textual, contextual and purposive analysis

1a Legislative Intent

1 Standard of Review

Legislative history Hansard debates

Minister’s statements affirming statutory purpose in subsequent amendments

Legislative silences regarding potential amendments

Judicial interpretation Statutory purpose affirmed in jurisprudence

Functional analysis of institutional relations and positions

Rules of construction: express intent versus silence; absurd results; structural analysis; consistent

expression across a number of related statutes

Agency interpretation Statements regarding statutory purpose by Agency Officials

Expert evidence Political scientists in Information Commissioner provide contextual information that is not for use

in actual interpretation

Aids used to find legislative intentCanada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25

Standard of Review: Legislative Intent

“While I agree that the Access to Information Act may be considered

quasi-constitutional in nature, thus highlighting its important purpose,

this does not alter the general principles of statutory interpretation. …

The Court cannot disregard the actual words chosen by Parliament and

rewrite the legislation to accord with its own view of how the legislative

purpose could be better promoted.” (Information Commissioner, para.

40)

Standard of Review: Legislative Intent

Concordant and inconsistent statutes

Standard of Review: Legislative Intent

Access to Information

Privacy Act Interpretation Act Financial Administration Act

Exemption

19. (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined in section 3 of the Privacy Act.

s.3 “personal information” means information about an identifiable individual that is recorded in any form …

but, for the purposes of … section 19 of the Access to Information Act, does not include

(j) information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual …

s.2 “public officer”

“any person in the federal public administration who is authorized by or under an enactment to do or enforce the doing of an act or thing or to exercise a power, or on whom a duty is imposed by or under an enactment”

SCC = NOT APPLICABLE

Maybe some overlapDefinition only applies in this ActPublic officer not the same as “officer of a government institution”

s.2 “public officer”

“a minister of the Crown and any person employed in the federal public administration”

SCC = NOT APPLICABLE

Too broad, unrelated subject, different context

Parties cannot, by simply agreeing with each other, contract out of the

appropriate standard of review (Celgene, para. 33-34)

Reasonableness will be the presumptive standard when:

Specialized tribunal

Expert tribunal

Interpreting enabling legislation

Outcome of decision falls within “range of possible, acceptable

outcomes which are defensible in respect of the facts and law”

= Deference

1b Reasonableness v. Correctness

Standard of Review: Reasonableness

Refusal by government to disclose documents requested by Commissioner

under Access to Information Act is reviewed by courts on a standard of

correctness

Standard used by appellate courts to review application judge’s decision re:

statutory interpretation is correctness

Standard used by appellate courts to review decision on facts is deferential

unless

Wrong legal principle

Palpable and overriding error

1b Reasonableness v. Correctness

Standard of Review: Correctness

Regulations can inform the statutory context when (Mavi, para. 57):

Form an integrated scheme with the enabling legislation

Statute indicates that they are mutually informing

Interpreting enabling legislation

1c Subordinate legislation

Standard of Review: Subordinate legislation

2 Duty to be Fair

Procedural Fairness

Canada (Attorney General) v. Mavi, 2011 SCC 30

Fundamental question (para. 38)

What specific rights does the duty of fairness reasonably require of

an authority in a particular legislative and administrative context?

General rule (para. 39)

Legislator always intends a duty of fairness to apply unless clear

statutory language or necessary implication demands the contrary.

2a Determination of content

It’s still all about the STATUTE

Nature of decision and process followed

Nature of the statutory scheme and terms of governing statute

Importance of the decision to the affected individual

Legitimate expectations of the individual challenging the

decision

Choice of procedures made by the agency

Agency has jurisdiction to choose own procedures

Agency has expertise in determine appropriate procedures in the circumstances

Non-exhaustive list of factors from Baker (para 42)

Duty to be Fair: Content

Revised institutional procedure in Mavi

Before filing a certificate of debt with Federal Court, government must:

1. Notify sponsor at last known address

2. Offer limited time opportunity to explain in writing

considerations that weigh against immediate collection

3. Consider any relevant circumstances brought to attention

4. Notify sponsor of decision

Duty to be Fair: Content

“Where a government official makes representations within the

scope of his or her authority to an individual about an

administrative process that the government will follow, and the

representations give rise to the legitimate expectation are

clear, unambiguous and unqualified, the government may be

held to its word, provided the representations are procedural in

nature and do not conflict with the decision maker’s statutory

duty. Proof of reliance is not a requisite.” (Mavi, para. 68)

2b Legitimate Expectations

Duty to be Fair: Legitimate Expectations

Inadequate reasons and unreasonable decisions are not identical

Unclear writing does not necessarily indicate deficiency in

reasoning

Deficient reasons do not automatically guarantee allowing an

appeal

Sufficient reasons are mandatory

Tribunal must address all relevant, obvious topics

Matter of fairness and of an appellate court’s ability to review

Not a freestanding ground of appeal

Duty to be Fair: Adequate Reasons

2c Adequate ReasonsSpinks v. Alberta (Law Enforcement Review Board), 2011 ABCA 162

“…[T]he Court of Appeal must have a meaningful and effective role:

legislation allows an appeal from the Board to the Court of Appeal. And the

public and the losing party are entitled to know why (though not how) the

Board's decision was reached, to know that it considered the main

arguments, and to see that only relevant considerations were used. The

reasons must address the substance of the live issues, key arguments,

contradictory evidence, and non-obvious inferences. The reasons must be

intelligible to the parties, and provide for meaningful appellate review. The

test is functional and purposeful. Reasons are especially important if the

law or the facts are unclear.” (Spinks, para. 30)

Duty to be Fair: Adequate Reasons

2c Qualities

3 Constitutional Matters

Statute statute statute statute statute …

Constitutional matters

Court of competent jurisdiction: R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765 &

Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28

Does this tribunal have the jurisdiction to decide questions of law?

Does the statute give express or implied jurisdiction?

Has the legislature clearly intended NOT to withdraw jurisdiction?

If yes

Tribunal can grant Charter remedies for Charter issues

Then ask

Can the tribunal grant this particular remedy?

3a s.24(1) Remedies

Constitutional matters: Remedies

Canada (Attorney General) v. Mavi, 2011 SCC 30: Immigration and Refugee Protection

Act

Does procedural fairness apply in situations governed by the private

law of contract?

Celgene Corp. v. Canada (Attorney General), 2011 SCC 1: Patent Act

Do commercial law principles and ordinary commercial law

meanings control specific language in the enabling statute or should

definition be responsive to surrounding legislative context and

purposes?

3b Public Law/Private Law

Constitutional matters: Public law, private law

Mavi Celgene

• Undertaking required by statute

• Terms dictated by statute

• Minister uses statutory power to fix the terms of sponsorship

= Contract is a creature of statute

• “Sold” has dual residency in private law and public law

• It is open-textured, not fixed and clear language

• Need to look to the purpose of the statute

= Sold must be interpreted in relation to consumer protection goals which inform statutory context

Constitutional matters: Public law, private law

4 Discretionary Decisions

Canada (Attorney General) v. Mavi, 2011 SCC 30

Discretionary Decisions

“[D]iscretion is fettered or abused when a policy is adopted that

does not allow the decision-maker to consider the relevant facts

of the case, but instead compels an inflexible and arbitrary

application of policy” (para. 65)

Fettering

Discretionary Decisions

5 BC Administrative Tribunals Act

BC ATA

Viking Logistics Ltd. v. British Columbia (Workers’ Compensation Board), 2010 BCSC 1340

Dunsmuir reasonableness will affect interpretation of patently

unreasonable

Patently unreasonable is at upper end of reasonableness

spectrum

Requires greatest deference and courts will not second-guess the

outcome

Decision must still be defensible with respect to facts and law

5a Patently Unreasonable

BC ATA: Patently Unreasonable

Principles informing patently unreasonable

Clearly irrational, evidently unreasonable

Privative clause requires highest level of deference

Review applied to the result, not to the reasons leading to the result

Decision set aside only where administrative body commits jurisdictional error

Decision based on no evidence is PU, but insufficient evidence is not

High degree of deference regarding reasons offered for the impugned decision

5a Patently Unreasonable

BC ATA: Patently Unreasonable

Patently unreasonable standard cannot be replaced by

reasonableness simpliciter standard as defined by Dunsmuir

Highest level of deference to questions of fact and proper

interpretation and application of provisions in home statute

No evidence or indefensible outcome = PU

Indefensible or clearly irrational interpretation of statute = PU

5a Patently UnreasonableJozipovic v. British Columbia (Workers’ Compensation Appeal Tribunal), 2011 BCSC 329

BC ATA: Patently Unreasonable

read the statute

Read The Statute

READ THE STATUTE

Conclusion