Transcript Slide 1

2011 BCCAT Educational Conference
& Annual General Meeting
Recent Developments in Administrative Law
Professor Mary Liston
Faculty of Law
University of British Columbia
October 3, 2011
River Rock Conference Centre
Richmond, BC
It’s ALL about the STATUTE
Overview
1.
2.
3.
4.
Standard of Review
a.
Legislative Intent
b.
Reasonableness v. Correctness
c.
Subordinate Legislation
Duty to be Fair
a.
Content
b.
Legitimate Expectations
c.
Adequate Reasons
Constitutional Developments
a.
Remedies
b.
Public Law and Private Law: Intersection
Discretionary Decisions
a.
5.
Fettering
BC ATA
a.
Patently Unreasonable Standard: Discretionary and Non-Discretionary Decisions
Standard of Review
1. Standard of Review
1 Standard of Review
1a
Legislative Intent
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
Standard of Review: Legislative Intent
Aids used to find legislative intent
Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25
 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
Standard of Review: Legislative Intent
“While I agree that the Access to Information Act may be considered quasiconstitutional 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
Access to
Information
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.
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 …
Interpretation Act
Financial
Administration Act
s.2 “public officer”
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”
“a minister of the
Crown and any person
employed in the federal
public administration”
SCC =
NOT APPLICABLE
Maybe some overlap
Definition only applies
in this Act
Public officer not the
same as “officer of a
government institution”
SCC =
NOT APPLICABLE
Too broad, unrelated
subject, different
context
Standard of Review: Reasonableness
1b
Reasonableness v. Correctness
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
Standard of Review: Correctness
1b

Reasonableness v. Correctness
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
Standard of Review: Subordinate
legislation
1c
Subordinate legislation
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
Procedural Fairness
2 Duty to be Fair
It’s still all about the STATUTE
2a
Determination of content
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.
Duty to be Fair: Content
Non-exhaustive list of factors from Baker (para 42)
 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
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: Legitimate Expectations
2b
Legitimate Expectations
“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)
Duty to be Fair: Adequate Reasons
2c
Adequate Reasons
Spinks v. Alberta (Law Enforcement Review Board), 2011 ABCA 162
 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
Qualities
“…[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)
Constitutional matters
3 Constitutional Matters
Statute statute statute statute statute …
Constitutional matters: Remedies
3a
s.24(1) Remedies
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?
Constitutional matters:
Public law, private law
3b
Public Law/Private Law
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?
Constitutional matters:
Public law, private law
Mavi
Celgene
• Undertaking required by
statute
• “Sold” has dual residency in
private law and public law
• Terms dictated by statute
• It is open-textured, not
fixed and clear language
• Minister uses statutory
power to fix the terms of
sponsorship
= Contract is a creature of
statute
• Need to look to the purpose
of the statute
= Sold must be interpreted in
relation to consumer
protection goals which
inform statutory context
Discretionary Decisions
4 Discretionary Decisions
Canada (Attorney General) v. Mavi, 2011 SCC 30
Discretionary Decisions
Fettering
“[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)
BC ATA
5 BC Administrative Tribunals Act
BC ATA: Patently Unreasonable
5a
Patently Unreasonable
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
BC ATA: Patently Unreasonable
5a
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
BC ATA: Patently Unreasonable
5a
Patently Unreasonable
Jozipovic v. British Columbia (Workers’ Compensation Appeal Tribunal), 2011 BCSC 329
 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
Conclusion
read the statute
Read The Statute
READ THE STATUTE