Wednesday, 16 April 2014

Symposium on the Nadon Reference: May 28, University of Ottawa

I have been organizing this event with Carissima Mathen from Ottawa. We have a stellar line-up of guests to analyze the decision and its consequences. I look forward to seeing you there!

Tuesday, 15 April 2014

A New Blog on Administrative Justice

I previously mentioned Unjust by Design, an excellent book on administrative justice by Ron Ellis. The book was recently shortlisted for the prestigious Donner Prize.

Ron now has a website and blog, Administrative Justice Reform, on which he discusses various aspects of administrative justice. His recent series of posts on the restructuring of federal tribunals is a must-read.

Monday, 14 April 2014

Sunstein on Breyer on Reasoned Decision-making

Cass Sunstein has a nice short essay on Justice Breyer in a forthcoming issue of the Harvard Law Review, "From Technocrat to Democrat":
There is an epistemic argument for judicial deference to the decisions of administrative agencies and legislatures: courts do not have easy access to relevant information, and they should defer to those who do. People who are steeped in technical issues, and alert to the importance of those issues, might well be inclined to embrace judicial modesty. In administrative law, then-Professor Stephen Breyer pioneered the view that judge-made doctrines reflect unarticulated assumptions about regulatory policy, and he urged that such doctrines could not be evaluated without a sense of the underlying substance and the likely human consequences. In light of the complexity of the substance, Breyer argued for a degree of modesty. On the Supreme Court, Justice Breyer has often embraced judicial modesty as well, emphasizing the importance and relevance of complex judgments of fact (sometimes with the aid of what we might call "the Breyer Appendix"). The principal qualification is his insistence on reasoned decision making, which he appears to regard as a quid pro quo for deference, as an aspect of the rule of law, and as an indispensable check on arbitrariness.
Reasoned decision-making as a condition precedent to deference is an increasingly attractive proposition in Canada, where affidavits and agency litigating positions can be used to place a decision-maker's thumb on the interpretive scales. 

To borrow from Sunstein:
The most important point here is that an agency may not defend its policy simply by asserting its preference. It has to offer reasons. To be sure, there is a risk that a judicial demand for reasoned decision making will serve, in practice, as a judicial demand for reasons with which judges agree...Nonetheless, a requirement of reason-giving can be seen as an effort to ensure that technical expertise is in fact being applied...
As Sunstein suggests, the presence of a reasoned decision may be a good proxy for the application of administrative expertise. It is interesting that the recent decline in importance of relative expertise in Canadian doctrine has coincided with the decline in importance of reasoned decision-making.

Three Strange Things about Martin v. Alberta (Workers’ Compensation Board), 2014 SCC 25

Martin v. Alberta (Workers’ Compensation Board), 2014 SCC 25 does little or nothing in the way of doctrinal development, and so should not be expected to have a lasting impact on the law. Three aspects of this Supreme Court of Canada decision are nonetheless worth highlighting in an effort to explain why Martin is best confined to its special facts.

Friday, 11 April 2014

Who Decides Here? Deference on Ministerial Interpretations of Law (Again)

I was rather optimistic in thinking that the question of deference to ministerial interpretations of law had been settled by the Supreme Court of Canada in Agraira (see my post here).

Two stern responses arrived last week from the Federal Court of Appeal, the body which deals more than any other with judicial review of ministerial decision-making. Most notably, Canada (Citizenship and Immigration) v. Kandola, 2014 FCA 8, but also Canada (Citoyenneté et Immigration) c. Dufour, 2014 CAF 81.

Wednesday, 9 April 2014

Breaking Out of Federal Court: Mission Institution v. Khela, 2014 SCC 24

Under the Federal Courts Act, the Federal Court has exclusive jurisdiction
to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal.
A notable absentee from this list is the writ of habeas corpus. Since its assertion that the "rule of law must run within penitentiary walls", the Supreme Court of Canada has given prisoners a choice between making habeas claims in the provincial superior courts or judicial review applications in Federal Court.

Monday, 7 April 2014

Judicial Review of Administrative Action is Always Interesting: Kennedy v. The Charity Commissioner 2014 UKSC 20

Towards the beginning of his classic essay "The Core of the Case against Judicial Review", Jeremy Waldron notes that his argument is not directed against review of executive action, that is, most of what we conventionally call administrative law.

The exclusion has always struck me as strange. Waldron's argument is that courts are ill-suited relative to the political branches to determining questions involving rights. For precisely this reason, many supporters of 'political constitutionalism' would prefer the judiciary to withdraw from the field of judicial review of legislation.

Yet courts engaged in judicial review of administrative action end up determining just these sorts of questions on a regular basis. A remarkable recent example is the decision of the UK Supreme Court in Kennedy v. The Charity Commissioner 2014 UKSC 20.