Tuesday, 31 December 2013

Professional Privilege in the Administrative Process: a Question of Law of Central Importance to the Legal System?

At last! From the Quebec Court of Appeal, a plausible contender for a general question of law of central importance to the legal system (which, in Canada, is a type of question reserved for the courts and not administrative decision-makers).

In Association des pompiers professionnels de Québec inc. c. Québec (Ville de), 2013 QCCA 208, the issue was the scope of solicitor-client privilege. The city of Québec had secured a legal opinion regarding the restructuring of its fire service. Restructuring was opposed by the union, which made multiple complaints to the labour relations board (the Commission des relations du travail). One of these was for interference in union activities.

It was in the context of this complaint that the CRT ultimately ordered the city to hand the opinion over in its entirety to counsel for the firemen. The reasoning of the CRT appeared to be that the director-general of the city had waived privilege by relying in her testimony on the conclusions of the legal opinion to demonstrate that she had acted in good faith.

The Court acknowledged that the categories of decision to which the intrusive correctness standard of review applies are narrowing. Nonetheless, it took the view that solicitor-client privilege requires uniform application regardless of the particular administrative context:
[20]        Il en va autrement en matière de secret professionnel de l’avocat. Peu importe le contexte, en pareille matière, les conditions d’application et de renonciation à un tel droit fondamental demeurent les mêmes. Les organismes administratifs aux prises avec une question de renonciation au secret professionnel doivent statuer correctement sur ce point. L'importance de la question du respect du secret professionnel pour le système juridique est fondamentale et doit être tranchée de manière uniforme et cohérente, étant donné ses répercussions sur l'administration de la justice dans son ensemble...
It is also worth noting that professional privilege has quasi-constitutional status in Quebec, where it is protected by s. 9 of the Quebec Charter.

I am willing to be persuaded otherwise, but this result seems right to me. Professional privilege is something that requires uniform application across regulatory regimes. A lawyer, for example, ought to be able to give frank legal advice regardless of the particularities of the context. It would be odd if a lawyer felt obliged to advise a client differently on the same issue depending on whether it arose before a court or an administrative tribunal which had developed a unique line of reasoning with regard to privilege.

This is quite unlike the application of, say, the rules of evidence, which an administrative decision-maker can tailor to fit a particular context. It would have quite the opposite effect, by requiring professional advisers to tailor their advice to a particular context. This may undermine the lawyer's duty of candour and lead to similarly situated clients being treated unequally.

Quite apart from these pragmatic considerations, the quasi-constitutional status of professional privilege suggests that resolution of privilege questions has not been delegated to administrative decision-makers. Moreover, professional privilege is a question on which courts have a great deal of expertise.

On the merits, the CRT was wrong (and did not expressly address the waiver question (at para. 23). The director-general's references to the opinion in her testimony were extremely limited and did not amount to a clear waiver of privilege over the entirety of the opinion (at para. 24). A partial waiver was present and the city had indeed handed over the relevant portions of the retainer and opinion (at para. 29). There was no basis for the CRT to go any further.

H/T Karim Renno.

UPDATE: Given the influence of the Quebec Charter in this case, it would be remiss of me not to mention Lethbridge Regional Police Service v Lethbridge Police Association, 2013 ABCA 47, where the Alberta Court of Appeal held that the appropriate standard of review on "human rights issues" is correctness (at para. 28). To be fair, this follows a consistent line of Supreme Court of Canada cases beginning with Canada (Attorney General) v. Mossop, [1993] 1 SCR 554. I have always preferred the dissent in that case. We will have to wait and see what the Supreme Court of Canada says whenever a "human rights issue" pops up on its docket.

Saturday, 28 December 2013

Deference and the Rule of Lenity

In a recent American case, Carter v. Welles-Bowen Realty, Inc, the question arose whether the rule that ambiguous penal statutes are to be construed in favour of defendants (the "rule of lenity") could 'trump' the rule that courts are to defer to administrative interpretations of ambiguous statutes (Chevron deference).

Sunday, 22 December 2013

250 and Counting: What I've Been Blawging About and Why

Although I had not planned to reach a staging post by this time of the year, the happy coincidence of year-end and post #250 gives me a chance to reflect on my blawging enterprise.

Why Blawg?
I was pleasantly surprised to find a large gap in the blawg market: there was no sustained commentary dedicated to administrative law. I found this puzzling not least because "administrative law" can cover such a wide variety of issues. This year alone I have written about assisted suicide, Supreme Court of Canada appointments, drug-taking mayors (although we didn't know about the drugs at the time) and guns. And the usual suspects have provided a steady diet: substantive review, procedural review, remedial discretion, the prerogative, justiciability, and so. This mix seems interesting to me and evidently to quite a few of you.

The blawg also serves as a personal notebook. The content is a mix of commentary on cases and articles of interest and ideas I have developed or am developing. The majority of the content focuses on Canada, but I also try to keep an eye on major developments elsewhere. With cases and articles, I tend not to comment on everything I read (though my Twitter feed is more extensive): my primary goal when posting is to alert readers to interesting developments, but I also try to add something extra, usually by taking a position on a case or article. This notebook is useful when I am invited to give conference talks and also when putting class materials or articles together.

Its utility for the purpose of writing articles leads me to the vexed question of whether blawging should get academic credit. Requesting academic credit for this blawg was not something that crossed my mind when I started, though the positive feedback I have received from readers in all walks of legal life has tempted me to change my views.

I am expected to shoulder a 40/40/20 workload: 40% teaching, 40% research and 20% community involvement. Blawging should certainly count, in my view, towards the 20% community involvement requirement. Newspaper articles and interviews with journalists do, so blawging should too. But community involvement is rarely if ever what makes the difference to an academic's reputation or tenure decisions.

The tougher question is whether blawging should count towards the 40% research requirement. My view (though I welcome comments) is that it should not. Peer review rightly remains the gold standard as far as academic credentials are concerned (with textbooks, at least in my part of the world, running a close second). Blawging is not subject to the same restrictions. Nor should it be. Blawging is better seen as facilitating the development of ideas, which may later become peer-reviewed publications or academic textbooks. My posts on the destruction of the gun registry data will appear in article form in the New Year; my posts on l'Affaire Nadon should also probably provide the basis of a publication in the near future.

There may be situations in which the academic content of a blawg is so excellent that it deserves recognition itself. But in that case, the author will presumably rely on the blawg content in developing articles and books for peer review.

In short, when the time comes for my tenure application, this blawg will be in there, but it will not be at the front page. I have a contract renewal submission coming up shortly and will report back on how the blawg is received!

Clawbies 2013
I have been humbled to receive several nominations for the Canadian Law Blog Awards. Thanks to all those who nominated me. Fingers crossed!


I made my nominations for this year on my twitter feed.

2014
I have just started a period of parental leave which will last until March 2014, so things may slow down depending on whether little Liam approves or not. But whether they slow down or speed up, the diet will remain the same.

A happy festive period to you all and good luck in the New Year!

Friday, 20 December 2013

Enforcement Discretion: Thinking about the Executive, the Rule of Law and the Separation of Powers

The topic of enforcement discretion is the subject of an interesting series of posts by Zachary Price over at the Volokh Conspiracy. The impetus for Price's series and his underlying article ("Enforcement Discretion and Executive Duty") comes from several recent American episodes, such as President Obama's decision not to enforce certain provisions of the Affordable Care Act (see e.g. here), the policy not to pursue certain breaches of federal drug laws and the policy not to seek minimum sentences for some drug offences.

At first blush, this looks much like the dispensing power that common law jurisdictions dispensed with many centuries ago. Price argues, however, that there are constitutional provisions that give the American executive discretion to refuse to enforce laws on a case-by-case basis though not as a matter of general policy. My interest is less in the specifics of U.S. constitutional law than in the generalities of enforcement discretion.

Monday, 16 December 2013

Behavioural Economics and Regulation

There was a long piece in the New York Times last week about Britain's eager adoption of the approach to regulation and law reform set out by Richard Thaler and Cass Sunstein in Nudge: Britain's Ministry of Nudges.

Here is an extract:
It is an American idea, refined in American universities and popularized in 2008 with the best seller “Nudge,” by Richard H. Thaler and Cass R. Sunstein. Professor Thaler, a contributor to the Economic View column in Sunday Business, is an economist at the University of Chicago, and Mr. Sunstein was a senior regulatory official in the Obama administration, where he applied behavioral findings to a range of regulatory policies, but didn’t have the mandate or resources to run experiments.
But it is in Britain that such experiments have taken root.  Prime Minister David Cameron has embraced the idea of testing the power of behavioral change to devise effective policies, seeing it not just as a way to help people make better decisions, but also to help government do more for less.
In 2010, Mr. Cameron set up the Behavioral Insights Team — or nudge unit, as it’s often called. Three years later, the team has doubled in size and is about to announce a joint venture with an external partner to expand the program.
The unit has been nudging people to pay taxes on time, insulate their attics, sign up for organ donation, stop smoking during pregnancy and give to charity — and has saved taxpayers tens of millions of pounds in the process, said David Halpern, its director. Every civil servant in Britain is now being trained in behavioral science. The nudge unit has a waiting list of government departments eager to work with it, and other countries, from Denmark to Australia, have expressed interest.
In fact, five years after it arrived in Washington, nudging appears to be entering the next stage, with a new team in the White House planning to run policy trials inspired in part by Britain’s program. “First the idea traveled to Britain and now the lessons are traveling back,” said Professor Thaler, who is an official but unpaid adviser to the nudge unit. “Britain is the first country that has mainstreamed this on a national level.”
One interesting issue, however, is whether the insights of behavioural economics can and should be applied to the regulators as well as the regulated. Each of the "tics" to which we are susceptible as individuals are capable of plaguing us just as much at work as at play, as James C. Cooper argued last month in Behavioural Economics and Biased Regulators:
Regulators are likely to use heuristics—mental shortcuts—to form what they consider the optimal long-run policy choice. Behavioral economics demonstrates that these shortcuts, although timesaving, may lead to systematically flawed decision-making. Experimental research has documented the existence of several of these flawed heuristics.
The availability heuristic, for example, causes people to overemphasize recent and particularly salient events when estimating the likelihood and cost of those events in occurring in the future. The hindsight bias leads people to overestimate the ex ante probability of an event occurring given that it has actually occurred. Finally, optimism bias causes individuals to underestimate their own probability of experiencing a bad outcome. In addition, regulators may suffer from myopia, which can arise due to cognitive inabilities to process life-cycle costs or from self-control problems.
Regulators who suffer from these cognitive flaws are likely to commit systematic errors when forming policies. Myopic regulators, for example, will focus excessively on short-run considerations, such as measurable increases in activity that are clearly associated with their tenure, rather than optimal long-run considerations that may suggest pursuing policies that pay off only after the regulator’s tenure. The availability bias, moreover, would cause regulators to overestimate the future risk of certain bad outcomes that may have recently occurred, and thus take too much precaution to avoid them. In the context of the quasi-negligence determinations involved in certain consumer protection violations, for example, hindsight bias is likely to cause an agency to look more skeptically on practices that led to harm ex post. Finally, optimism bias may cause regulators to hold an unduly optimistic view of the likely success of a policy choice. Apart from flawed heuristics and myopia, there is a class of cognitive errors that tends to wed people irrationally to the status quo. The endowment effect, for example, leads experimental subjects to require more compensation to part with an endowment than they are willing to pay to gain it.
I touched on the times of behavioural tics and bounded rationality in a review of Andrew Ross Sorkin's book on the credit crunch (Too Big to Fail) a couple of years ago:
It bears mentioning that regulatory bodies are composed of individuals and are also subject to these cognitive tics. Once limitations on human cognition are understood, it is not as difficult to appreciate why Ireland’s Financial Regulator, and equivalent American bodies, did not intervene in markets that appeared to be running smoothly. Once the markets ground to a half, hindsight choice bias worked in the opposite direction. People roamed the streets, waving copies of Nassim Taleb’s The Black Swan or Morgan Kelly’s opinion pieces like Chamberlain’s piece of paper, declaring wildly that it had been perfectly obvious all along. It rarely is, as Ross Sorkin’s pitch-perfect description of the bafflement on a besieged Wall Street, traumatised by the emergence of the possibility of even the leading investment bank, Goldman Sachs, going to the wall demonstrates.
Other phenomena afflict government agencies. Regulatory arteriosclerosis can set in over time. An initial burst of enthusiasm – such as that being shown at present by Professor Patrick Honohan, the new governor of the Irish Central Bank – leads to creative regulation, but as the years pass the enthusiasm begins to wane and the once vigorous body expends its decreasing energies on maintaining its position rather than innovating. A more troubling phenomenon is that of agency capture, the idea that government bodies tend to further the interests of regulated bodies, rather than the interests of the public. Agency capture is not as sinister as it sounds. Regulators are closely identified with the industry they regulate and because the success of the industry reflects well on them, they will tend naturally to promote the interests of the industry. If banks’ profits are increasing and share values are rocketing, a regulator will be loath to intervene. And if house prices are rising and the downtrodden can fulfil their ambition to own a home, a regulator is more likely to facilitate more lending than to call a halt to the extension of easy credit.
- See more at: http://www.drb.ie/essays/cognitive-tics-of-the-herd#sthash.5xjnfX39.dpuf

Other cognitive tics affect how individuals process information. Through the operation of the availability heuristic, important, high-profile events are given more weight than recurring, low-profile events. The collapse in airline travel after the 9/11 attacks is a good example. Did flying suddenly become more dangerous? Surely not, but the endless rewinds of planes crashing into buildings made the event a salient one, apt to influence people not to fly. Consider, by way of contrast, road fatalities, which are generally events of low salience and do not exert great influence on individuals’ propensity to drive. During the 1990s and 2000s, all the happy stories about individuals buying their beautiful first homes, about investors making millions in the markets and Wall Street executives pocketing enormous pay packets triggered the availability heuristic at all levels of society. A phenomenon known as hindsight choice bias contributes something to the availability heuristic. Individuals create narratives to explain past events. In those narratives, happy events are more likely to feature. The five friends who reaped huge capital gains when they sold their houses loom larger than the one friend who couldn’t meet the mortgage repayments. In the financial world, the collapse of Long Term Capital Management is discounted in favour of tales of the derring-do of Bear Sterns and Lehman Brothers. We all write our own Whig histories.
It bears mentioning that regulatory bodies are composed of individuals and are also subject to these cognitive tics. Once limitations on human cognition are understood, it is not as difficult to appreciate why Ireland’s Financial Regulator, and equivalent American bodies, did not intervene in markets that appeared to be running smoothly. Once the markets ground to a half, hindsight choice bias worked in the opposite direction. People roamed the streets, waving copies of Nassim Taleb’s The Black Swan or Morgan Kelly’s opinion pieces like Chamberlain’s piece of paper, declaring wildly that it had been perfectly obvious all along. It rarely is, as Ross Sorkin’s pitch-perfect description of the bafflement on a besieged Wall Street, traumatised by the emergence of the possibility of even the leading investment bank, Goldman Sachs, going to the wall demonstrates.
...
The view of government agents as knights in shining armour often takes the rosier perspective of perfect rationality, or even bounded rationality. In 2008 though, the government muddled its way through. Individual firms were initially the focus of attention: first Bear Sterns, then Lehman Brothers and Merrill Lynch (eventually rescued by Bank of America). Concerted efforts were made to save the endangered firms, but it was not until the collapse of Lehman Brothers imperilled the entire financial system that Paulson, Geithner and Ben Bernanke, chair of the Federal Reserve, took a broader view. The Troubled Asset Relief Program (TARP) then emerged. Although some of Paulson’s staff members had outlined a basic TARP a few months previously, those calculations were of the “back of an envelope” variety. Initially, the idea behind the TARP was similar to the one underpinning Ireland’s National Asset Management Agency (NAMA). If lines of credit were becoming frozen because everybody knew that there were toxic assets in the financial system but nobody knew exactly who held the toxic assets, how much the toxic assets were worth, what the effect was on the value of non-toxic assets, or how the good could be separated from the bad, it followed that the financial system could not be restored to full health without removing the toxins. Moreover, because valuing the toxic assets was so difficult, purchasers were reluctant to buy them. But by setting up some sort of government-led auction to establish a floor price for the toxic assets, perhaps the value of the assets could be ascertained and boosted, ultimately allowing the toxins to be flushed out and credit to begin flowing through the system again. TARP, like NAMA, was a synoptic response to the toxic asset problem. Tellingly, it was only in the face of a full-blown crisis that TARP emerged as the solution: “The entire economy, [Paulson] said, was on the verge of collapsing”. Until that point, it had been incrementalism all the way. Similarly, in Ireland, NAMA came after the bank guarantee, the nationalisation of Anglo Irish Bank, and the pumping of capital into Bank of Ireland and Allied Irish Banks.



It bears mentioning that regulatory bodies are composed of individuals and are also subject to these cognitive tics. Once limitations on human cognition are understood, it is not as difficult to appreciate why Ireland’s Financial Regulator, and equivalent American bodies, did not intervene in markets that appeared to be running smoothly. Once the markets ground to a half, hindsight choice bias worked in the opposite direction. People roamed the streets, waving copies of Nassim Taleb’s The Black Swan or Morgan Kelly’s opinion pieces like Chamberlain’s piece of paper, declaring wildly that it had been perfectly obvious all along. It rarely is, as Ross Sorkin’s pitch-perfect description of the bafflement on a besieged Wall Street, traumatised by the emergence of the possibility of even the leading investment bank, Goldman Sachs, going to the wall demonstrates.
Other phenomena afflict government agencies. Regulatory arteriosclerosis can set in over time. An initial burst of enthusiasm – such as that being shown at present by Professor Patrick Honohan, the new governor of the Irish Central Bank – leads to creative regulation, but as the years pass the enthusiasm begins to wane and the once vigorous body expends its decreasing energies on maintaining its position rather than innovating. A more troubling phenomenon is that of agency capture, the idea that government bodies tend to further the interests of regulated bodies, rather than the interests of the public. Agency capture is not as sinister as it sounds. Regulators are closely identified with the industry they regulate and because the success of the industry reflects well on them, they will tend naturally to promote the interests of the industry. If banks’ profits are increasing and share values are rocketing, a regulator will be loath to intervene. And if house prices are rising and the downtrodden can fulfil their ambition to own a home, a regulator is more likely to facilitate more lending than to call a halt to the extension of easy credit.
- See more at: http://www.drb.ie/essays/cognitive-tics-of-the-herd#sthash.5xjnfX39.dpuf
It bears mentioning that regulatory bodies are composed of individuals and are also subject to these cognitive tics. Once limitations on human cognition are understood, it is not as difficult to appreciate why Ireland’s Financial Regulator, and equivalent American bodies, did not intervene in markets that appeared to be running smoothly. Once the markets ground to a half, hindsight choice bias worked in the opposite direction. People roamed the streets, waving copies of Nassim Taleb’s The Black Swan or Morgan Kelly’s opinion pieces like Chamberlain’s piece of paper, declaring wildly that it had been perfectly obvious all along. It rarely is, as Ross Sorkin’s pitch-perfect description of the bafflement on a besieged Wall Street, traumatised by the emergence of the possibility of even the leading investment bank, Goldman Sachs, going to the wall demonstrates.
Other phenomena afflict government agencies. Regulatory arteriosclerosis can set in over time. An initial burst of enthusiasm – such as that being shown at present by Professor Patrick Honohan, the new governor of the Irish Central Bank – leads to creative regulation, but as the years pass the enthusiasm begins to wane and the once vigorous body expends its decreasing energies on maintaining its position rather than innovating. A more troubling phenomenon is that of agency capture, the idea that government bodies tend to further the interests of regulated bodies, rather than the interests of the public. Agency capture is not as sinister as it sounds. Regulators are closely identified with the industry they regulate and because the success of the industry reflects well on them, they will tend naturally to promote the interests of the industry. If banks’ profits are increasing and share values are rocketing, a regulator will be loath to intervene. And if house prices are rising and the downtrodden can fulfil their ambition to own a home, a regulator is more likely to facilitate more lending than to call a halt to the extension of easy credit.
- See more at: http://www.drb.ie/essays/cognitive-tics-of-the-herd#sthash.5xjnfX39.dpuf

Thursday, 12 December 2013

Administrative Remedies and Class Actions

This morning's Supreme Court of Canada decision in AIC Limited v. Fischer, 2013 SCC 69 involved an application of the "preferable procedure" test for certification of class actions to a case in which the Ontario Securities Commission reached a settlement with mutual fund managers about the controversial practice of "market timing".

Tuesday, 10 December 2013

L'Affaire Nadon: a Note on Justice Rothstein's Recusal

A few weeks ago I appeared before the Senate Standing Committee on Legal and Constitutional Affairs about the proposed modifications to the Supreme Court Act. You can watch the hearing here (warning, quicker to stream than to download). I prepared lengthy written submissions, which you can download here.

These modifications are, of course, the subject of a reference to the Supreme Court of Canada itself, which will be heard on January 15. The most interesting recent news is that Justice Rothstein has recused himself. This is unsurprising. Justice Rothstein was appointed from the Federal Court of Appeal. The reference specifically asks the Court to opine on whether such an appointment [EDIT: to one of the "Québec seats"] would have been lawful. If he had taken part in the reference, Justice Rothstein may have had to opine on the legality of his own appointment [EDIT: especially because Parliament proposes to clarify both sections 5 and 6 of the Supreme Court Act]. Moreover, several of his former colleagues are intervening in the reference [EDIT: and he is a former colleague of Justice Nadon]. Helpfully, Justice Rothstein's sensible decision also ensures that the reference will not result in a tie (although this is a case in which, for institutional reasons, the Court is likely to speak with one voice).

Although Justice Rothstein recused himself about a month ago, the decision was only made public yesterday. Matters seem to have been brought to a head by an argument made by Rocco Galati, one of the interveners, last week. On Galati's motion to intervene, he requested (it seems) that Justice Rothstein recuse himself from the motion. The Chief Justice heard the motions and responded that Galati's request was moot. As we now know, it was moot because Justice Rothstein has recused himself entirely, as the Chief Justice informed the parties to the case yesterday.

This information is only available due to the Court's willingness to make available on its website the dockets of all pending cases. It also publishes the written submissions of all parties to pending cases. And of course it streams and archives its oral hearings. Its website is an excellent resource for which the Court should be commended.

Here is the summary of the written submissions I made to the Senate committee:
The Committee has been asked to consider sections 471 and 472 of Bill C-4, which modify the Supreme Court Act. It has been asked to consider them in the midst of an important controversy. In late September, 2013, Prime Minister Harper nominated the Honourable Justice Marc Nadon, then a member of the Federal Court of Appeal, to replace the retiring Morris J. Fish as a member of the Supreme Court of Canada. After Justice Nadon was sworn in, but before he could take an active part in proceedings before the Court, a challenge was launched to the legality of his nomination. Mr. Rocco Galati, a Toronto lawyer, contended amongst other things that Justice Nadon was not eligible for elevation to one of the three seats on the Court reserved for jurists from Québec. Justice Nadon stepped aside pending the resolution of the challenge to his nomination.

Subsequently, the federal government took two steps. It proposed modifications to the Supreme Court Act as part of Bill C-4. And it referred two questions to the Court for the decision: whether federal court judges can be appointed to the Court pursuant; and whether Parliament can enact declaratory provisions to end the ongoing uncertainty about the validity of Justice Nadon’s appointment and to confirm for the future that judges from the federal courts can be elevated to the Court.

In my written submissions, I propose to address three issues: (1) Can a member of the Federal Court or Federal Court of Appeal be appointed to one of the three Québec seats on the Supreme Court of Canada in accordance with the provisions of the Supreme Court Act? (2) Do the provisions of Bill C-4 alter the existing law? (3) Do the provisions of Bill C-4 require a constitutional amendment?

A brief summary of my answers is as follows: (1) No: The most natural reading of the English and French versions of ss. 5 and 6 of the Supreme Court Act is that sitting or former judges and lawyers with 10 years’ experience are eligible for appointment (s. 5), but that in the case of the three seats on the Supreme Court of Canada reserved for Québec there is an additional requirement that the appointee be a current judge or practitioner from the province (s. 6).

A purposive approach underpins this conclusion. The most obvious inference is that the object of s. 6 is to ensure that the Québec judges on the Court have current knowledge of Québec’s Civil Code. This is confirmed by the legislative history leading to the adoption of s. 6 and its subsequent evolution. The purpose of ensuring familiarity with civil law underpinned the policy choice to list the Québec courts and Québec bar as the sole sources from which the Québec seats on the Court could be filled.

(2) Yes: Parliament may enact declaratory provisions to cure doubts or mistaken interpretations of existing law by declaring the law’s ‘true meaning’ not only for the future but also for the past. A court faced with the question will have to take the declaratory provisions into account and will likely conclude that the proposed ss. 5.1 and 6.1 serve to put the appointment of Justice Nadon beyond all doubt. Whether the deployment of Parliament’s powers in the judicial domain is desirable is a separate question.

(3) Maybe: It remains to be seen what approach the Supreme Court of Canada will take to the interpretation of the amending formulas set out in Part V of the Constitution Act, 1982. There is scope for it to take an approach which would protect core provisions of the Supreme Court Act from unilateral amendment by Parliament. The Court may well conclude that a change to s. 6 of the Supreme Court Act constitutes a change to the “composition of the Supreme Court of Canada” and requires a constitutional amendment. There is accordingly a risk that s. 6.1, declaratory or not, is beyond the powers of Parliament because alterations to s. 6 of the Supreme Court Act can be accomplished only by a constitutional amendment. Equally, however, the Court may conclude that the Supreme Court Act can be amended by Parliament.
A useful counterbalance to the arguments made in my written submissions is the Attorney General's factum, which can be downloaded from the Supreme Court's website.

Internal Appellate Review: the Role of the New Refugee Appeal Division

I made a presentation last week to the members of the new Refugee Appeal Division and their legal advisers. The RAD hears appeals from the Refugee Protection Division: most of the relevant statutory provisions are contained in Part IV of the Immigration and Refugee Protection Act.

One of the questions the members of the RAD have been asking themselves in their decisions to date is whether they should be deferential to findings made by the RPD. My presentation focused on this. My answer was a heavily qualified yes: the RAD should show some deference to the RPD, but it should not apply rigidly tests developed for review by courts of administrative decisions.

Saturday, 7 December 2013

Regulatory Capture and Agency Inaction


There is an interesting piece over at the RegBlog on agency capture and review by America's Office of Information and Regulatory Affairs of agency inaction. Michael Livermore and Richard Revesz argue that agency failures to act may well result from agency capture and may be as damaging as inefficient agency action resulting from capture.

Accordingly, they argue that OIRA's mandate should extend to agency inaction:
Our most important recommendation is to eliminate a basic flaw that significantly limits OIRA’s capture-reducing potential: a near exclusive focus on agency action, without attention to agency inaction. Capture can have deleterious effects on the regulatory system by promoting unnecessary and inefficient rulemaking and also by impeding efficient regulation that serves the public interest.
Balanced anti-capture review needs to correct for the wide range of effects that outside pressure can have on agency decision making. Limiting review to agency action places an entrenched bias at the heart of OIRA review, sapping normative force from its anti-capture justification.

To remedy this problem, we propose a mechanism to review inaction through review of petitions for rulemakings that have been submitted to agencies, but which have been denied or have languished. This review would help OIRA identify important areas where agencies are failing to act, without remaking OIRA into a roving commission with the power to set agencies’ agendas. The petitioning process strikes a workable balance: debiasing OIRA’s role while providing agencies with continued discretion to set regulatory priorities.

But the focus on agency failure to adopt regulations is surely too narrow. Agency capture is also one possible reason for the retention of regulations that are long past their sell-by date though beneficial to some sectoral interests. Retaining them might benefit groups of bureaucrats, enterprises or associations but not the public at large. OIRA review (and the various fixed or ad hoc arrangements in other jurisdictions that resemble it) should also concern itself with inaction once regulations have been adopted.

Tyler Cowen made this point (albeit without reference to agency capture) in a recent New York Times op-ed:

Many regulations, when initially presented, can sound desirable. The problem is that, taken in their entirety, excess rules divert attention from pressing issues like the need for innovation and new jobs.

Michael Mandel, an economist at the Progressive Policy Institute, compares many regulations to “pebbles in a stream.” Individually, they may not have a big impact. But if there are too many pebbles, a river’s flow can be thwarted. Similarly, too many regulations can limit business activity. When the number of rules mounts, it can become hard for a business to know whether it is operating within the law’s confines. The issue is all the more problematic when federal, state and local constraints all apply...

The Office of Information and Regulatory Affairs, within the White House, has advocated a retrospective review of unnecessary regulations. That’s a good idea, but the office has a full-time staff of only about 50, and its budget, adjusted for inflation, has declined since the early 1980s. The regulatory agencies outspend the office by a factor of about 7,000. The core problem is that the system is not geared for an efficiency-oriented regulatory review.
If Livermore and Revesz are right about review of agency inaction, the next logical step is to start the difficult process of pruning existing regulations, a task that is neither easy nor cheap.

Friday, 6 December 2013

Finding the Range of Reasonableness

Ronald Dworkin gave a good example to illustrate what he called "strong" and "weak" discretion. Imagine a sergeant A who is told to pick "any five men" for a mission. Contrast her with a sergeant B told to pick "the five most experienced men". One has strong discretion, the other weak.

Thursday, 5 December 2013

Time to Double Down on Dunsmuir?

The Supreme Court of Canada released a fascinating administrative law decision this morning: McLean v. British Columbia (Securities Commission), 2013 SCC 67. The majority reasons were written by Moldaver J.; Karakatsanis J. wrote a set of concurring reasons.

Tuesday, 3 December 2013

Closing the Backdoor to a Right to Reasons?

I have been bothered for about a month now by a hypothetical question I received from an audience member at a talk I gave at the end of October. I was explaining some cases which hold either (a) that plainly inadequate reasons make a decision unreasonable or (b) the absence of sufficient reasons makes a decision impossible to review (see also here).

Sunday, 1 December 2013

Gaming Regulatory Processes

There is an interesting new paper by Yehonatan Givati called "Game Theory and the Structure of Administrative Law", interesting principally because of its focus on advance ruling and licensing rather than the well-known distinction between adjudication and rulemaking. Here is the abstract:


How should administrative agencies choose among the different policymaking instruments at their disposal? Although the administrative law literature has explored this question with respect to the instruments of adjudication and rulemaking, it has failed to appreciate two other powerful instruments at agencies’ disposal: advance ruling and licensing. Taking these four policymaking instruments into consideration, this Article provides a general theory to guide agencies in selecting the most suitable policymaking instrument in different policy environments. To do so, the Article utilizes a new game-theoretic framework, focusing on two central dimensions of policymaking instruments in particular: timing and breadth. This framework provides two valuable implications. First, it highlights two key administrative challenges that are underappreciated by the academic literature: the hold-up and leniency problems. And second, the framework shows that administrative agencies are underutilizing two powerful policy making instruments, namely, licensing and advanced rulings. I argue that these two instruments area valuable across areas of law.

Here is an extract:
Specifically, when firms are relatively homogenous, so the agency knows that most firms’ reaction to a chosen policy will be desirable, or that most firms’ reaction will be undesirable, agencies should choose rulemaking as a policymaking instrument. When firms are relatively heterogeneous, so the agency’s only guess is that firms will be more or less evenly split between those with desirable reaction to the policy and those with an undesirable one, agencies should choose either licensing or adjudication supplemented with advance ruling. In this region, the more firms have an undesirable reaction to the policy, the more likely it is for adjudication supplemented with advance ruling to be superior to licensing...
There is some resemblance to Braithwaite and Ayres' classic Responsive Regulation, though Givati's paper is focused more on what happens at the policymaking rather than enforcement stage.The paper can be downloaded here.

Along similar lines is a keynote speech given by regulatory lawyer Rodney V. Northey during the Canadian Energy Summit: "Regulatory Chess: How energy proponents should approach regulatory approvals". Northey likens the search for regulatory approval to a game of chess (and draws illuminating contrasts with dominos and checkers):
In my experience, the game of chess offers an apt image for regulatory strategy. Right off the bat, there are two things about chess that appear well-suited to guide regulatory strategy:
  • Chess reflects the idea that regulatory approvals are not mechanical, straight-line processes. In chess, it is very rare that one side can end the game in a few quick steps.
  • Chess also reflects the idea that regulatory processes involve multiple pieces, doing different things, toward an overall objective.
Indeed, even the image of chess may not quite capture the complexities of regulatory processes which involve multiple players. Sometimes an applicant might find itself playing multiple games of chess simultaneously, facing and responding to different strategies from different players. This is something that requires a lot of smarts.

One of the notable aspects of the Supreme Court of Canada's recent decision in Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64 is how alive the Court was to the dynamism of the process of regulating drug prices:
[41]                          It bears repeating that Ontario’s totemic struggle to control generic drug prices has been an incremental one, due in part to an evolving awareness of the mechanisms that can lead to high drug prices, and in part to the dynamic nature of the problem: each time the government has introduced new measures, market participants have changed their business practices to obviate the restrictions and keep prices high.
[42]                          The private label Regulations are part of this incremental regulatory process, tailored to address a proposed business model in which the private label manufacturer is a substitute for a manufacturer which already has its drugs on the market in Ontario.
I think the result here was the correct one. Courts responding to regulatory measures in dynamic environments should be deferential. Regulation under uncertainty is a complex business and one which should be left primarily to regulators.

Tuesday, 26 November 2013

Putting the Katz amongst the Pigeons

In Zenner v. Prince Edward Island College of Optometrists, [2005] 3 SCR 645, one of the conditions imposed by his professional body on an optometrist who had lost his licence was that he complete an accredited medical ethics or optometrist course. The problem was that, at the time, the College had not accredited any such course! The condition was impossible to fulfill. There being no rational basis for imposing an impossible condition, it was struck down.

Friday, 22 November 2013

Thursday, 21 November 2013

Chevron Deference in Canada?

The comments of Evans J.A. in Qin v. Canada (Citizenship and Immigration), 2013 FCA 263 are obiter, strictly speaking, but they are comments by Evans J.A. and will carry a great deal of weight.

The Lori Douglas Inquiry

The Lori Douglas affair took a spectacular new turn yesterday, when the entire Inquiry Committee resigned. The Committee, established under the Judges Act, was inquiring into allegations against a Manitoba judge.

The Committee published reasons for its decision. Notably, the Committee felt its function was being frustrated by the resort of various parties to the Federal Court. Allegations of bias have been levelled against the Committee and have led to various applications and motions (see e.g. here).

An eyebrow might be raised at this point. Shouldn't the Committee be allowed to get on with its work and make a decision, after which the bias issue could be addressed? The Supreme Court of Canada recently made it very clear that reviewing courts should not get involved too early in the decision-making process: Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 SCR 364. The facts of that case related to jurisdictional issues rather than allegations of bias but there was an argument to be made here that the Federal Court should not intervene so early on.

But this prematurity argument was (it appears) never made before the Federal Court. Nobody spoke up for the Inquiry Committee.

Why? There is a general rule in Canadian administrative law that administrative tribunals cannot defend the merits of their decisions. The relevant principles are described by Stratas J.A. in Canada (Attorney General) v. Quadrini, 2010 FCA 246.

Had the Committee been heard, it would doubtless have strongly argued for a mandate to continue its operations.

In the event, however, the judicial review applications and associated motions continued and looked set to continue for some time. In the circumstances, the Committee chose to resign. In my view, this decision was not unreasonable, though my perspective is coloured by watching Ireland's public inquiries drag on for years due to court challenges and onerous procedural obligations.

At this point, it would be better just to start over. Perhaps Parliament, in between, could think of amending the Judges Act to ensure that someone is there to speak up for a future Inquiry Committee whose conduct is called into question. Otherwise, a cynical litigant (someone other than Justice Douglas) will be able to raise a claim of bias in order to drag the proceedings out for years.

UPDATE: Great post here with more details by Alice Woolley. 

Tuesday, 19 November 2013

Light blogging, heavy writing

I have been quiet for the last couple of weeks, mainly because I have been working on two fairly extensive projects (along with the usual term-time workload) with short deadlines.

One of these is a set of written submissions to the Senate Standing Committee on Legal and Constitutional Affairs, at which I am giving evidence on Thursday. The Committee is considering the proposed amendments to the Supreme Court Act to ensure that federal court judges can be appointed to the "Quebec seats" on the Supreme Court of Canada. It looks like a webcast of the hearing will be available.

I have posted my submissions on SSRN. The (lengthy) abstract is as follows:

The Committee has been asked to consider sections 471 and 472 of Bill C-4, which modify the Supreme Court Act. It has been asked to consider them in the midst of an important controversy. In late September, 2013, Prime Minister Harper nominated the Honourable Justice Marc Nadon, then a member of the Federal Court of Appeal, to replace the retiring Morris J. Fish as a member of the Supreme Court of Canada. After Justice Nadon was sworn in, but before he could take an active part in proceedings before the Court, a challenge was launched to the legality of his nomination. Mr. Rocco Galati, a Toronto lawyer, contended amongst other things that Justice Nadon was not eligible for elevation to one of the three seats on the Court reserved for jurists from Québec. Justice Nadon stepped aside pending the resolution of the challenge to his nomination.

Subsequently, the federal government took two steps. It proposed modifications to the Supreme Court Act as part of Bill C-4. And it referred two questions to the Court for the decision: whether federal court judges can be appointed to the Court pursuant; and whether Parliament can enact declaratory provisions to end the ongoing uncertainty about the validity of Justice Nadon’s appointment and to confirm for the future that judges from the federal courts can be elevated to the Court.

In my written submissions, I propose to address three issues:

(1) Can a member of the Federal Court or Federal Court of Appeal be appointed to one of the three Québec seats on the Supreme Court of Canada in accordance with the provisions of the Supreme Court Act?
(2) Do the provisions of Bill C-4 alter the existing law?
(3) Do the provisions of Bill C-4 require a constitutional amendment?

A brief summary of my answers is as follows:

(1) No: The most natural reading of the English and French versions of ss. 5 and 6 of the Supreme Court Act is that sitting or former judges and lawyers with 10 years’ experience are eligible for appointment (s. 5), but that in the case of the three seats on the Supreme Court of Canada reserved for Québec there is an additional requirement that the appointee be a current judge or practitioner from the province (s. 6).

A purposive approach underpins this conclusion. The most obvious inference is that the object of s. 6 is to ensure that the Québec judges on the Court have current knowledge of Québec’s Civil Code. This is confirmed by the legislative history leading to the adoption of s. 6 and its subsequent evolution. The purpose of ensuring familiarity with civil law underpinned the policy choice to list the Québec courts and Québec bar as the sole sources from which the Québec seats on the Court could be filled.

(2) Yes: Parliament may enact declaratory provisions to cure doubts or mistaken interpretations of existing law by declaring the law’s ‘true meaning’ not only for the future but also for the past. A court faced with the question will have to take the declaratory provisions into account and will likely conclude that the proposed ss. 5.1 and 6.1 serve to put the appointment of Justice Nadon beyond all doubt. Whether the deployment of Parliament’s powers in the judicial domain is desirable is a separate question.

(3) Maybe: It remains to be seen what approach the Supreme Court of Canada will take to the interpretation of the amending formulas set out in Part V of the Constitution Act, 1982. There is scope for it to take an approach which would protect core provisions of the Supreme Court Act from unilateral amendment by Parliament. The Court may well conclude that a change to s. 6 of the Supreme Court Act constitutes a change to the “composition of the Supreme Court of Canada” and requires a constitutional amendment. There is accordingly a risk that s. 6.1, declaratory or not, is beyond the powers of Parliament because alterations to s. 6 of the Supreme Court Act can be accomplished only by a constitutional amendment. Equally, however, the Court may conclude that the Supreme Court Act can be amended by Parliament.
 These submissions build on the arguments that I have already made on the blog in recent weeks.

Tuesday, 12 November 2013

Canada's Senate: Advisory Elections and the Fettering of Discretion

The Supreme Court of Canada is hearing argument this week on a set of questions relating to the reform (or abolition) of the Senate. Part V of the Constitution Act, 1982 sets out various procedures for constitutional amendment. The Court has to determine which matters fall under which procedures.

The Senate Reference involves classical questions of constitutional law, but administrative law has (thankfully!) managed to insinuate itself into the discussion, thanks particularly to questions during oral argument from Justice Cromwell.

One of the reform proposals put forward by the federal government is the holding of advisory elections. Based on the results of these elections, the Prime Minister would make recommendations that the Governor-General to appoint new senators. At the moment, the formal position is that the power of appointment is vested in the Governor-General, a prerogative power exercisable by convention on the advice of the Prime Minister. There are no statutory limitations.

The question is whether holding advisory elections would be a change to the "method of selecting Senators" which requires a constitutional amendment. Or, to put the point as it was put in the oral arguments this morning, would the Prime Minister's discretion be fettered by a statute requiring him to "consider" the results of advisory elections? There are a few points to make on the administrative-law aspects of the problem.

1. It is difficult to talk of fettering the prerogative, as the Court of Appeal for England and Wales has recently noted (my post is here). As the Court said, "where a policy is made in the exercise of prerogative or common law powers (rather than a statutory discretion), there is no rule of law which requires the decision-maker to consider the facts of every case with a view to deciding whether, exceptionally, to depart from the policy in a particular case" (para. 53). On this reading, a policy of holding elections on the nomination of senators or consultations with law societies on the nomination of judges would not fetter the prerogative at all.

2. If advisory elections are enshrined in statute, however, the situation might be different. If the Prime Minister did not follow the results of an advisory election, the refusal to do so could be subject to judicial review. There is no clear Canadian law on this. One might say, relying on the Conrad Black cases, that appointment to the Senate is a privilege, not a right, and thus non-justiciable.

But where there are statutory requirements which touch what is otherwise a prerogative power, it seems axiomatic that compliance with statute is required and judicially enforceable. This seems to be the conclusion the British Columbia Court of Appeal came to in a recent case involving a challenge to the appointment of a non-lawyer as Attorney General. And in the second Black case, the fact that termination of membership in the Order of Canada is regulated by a written policy was held to mean that he had an enforceable legitimate expectation that the policy would be followed.

3. Yet, if there were a statute which required the holding of advisory elections, and the Prime Minister decided to always follow the results of the advisory elections, this would presumably amount to an unlawful fettering of discretion. One point in favour of the legality of the advisory-elections proposal is that they could not lawfully be treated as binding.

4. As a general matter, surely some prior consultation does not change the formal method of appointment. For example, significant consultations are now held before the nomination of judges by the federal government. These surely are unproblematic. Does it make any difference that they are not statutory?

I do not think any of this is conclusive of the question, but I thought it helpful to set out the administrative law aspects to the problem. They are not straightforward!

Friday, 8 November 2013

Deference Denied on Questions of Procedural Fairness: Osborn v. The Parole Board, [2013] UKSC 61

Traditionally courts have seen themselves as the guardians of fair procedures. The substance of administrative decisions is for the decision-makers: they are the ones entrusted by the legislature with making decisions, and they have the expertise to do so.

Courts have been much less deferential in addressing the processes by which those decisions are reached. When it comes to the fairness of procedures, administrative decision-makers have to get it right. If they do not, courts stand ready to correct them.

Wednesday, 6 November 2013

Sequesters, Quarantines, or Common Sense?

There are important legal questions about the ability of the Canadian federal government to appoint members of the Federal Court and Federal Court of Appeal to the three Québec seats on the Supreme Court of Canada. I discuss some of these in this podcast with the McGill Law Journal.

These questions will be answered by the Court in a reference made to them by the federal government. I think the questions are serious -- especially in light of the legislative history -- and were not dispelled by the opinion provided by former justice Ian Binnie at the time that Mr. Justice Nadon was announced as the government's latest nominee.

In particular, in order to conclude that section 6 of the Supreme Court Act permits the appointment of federal court judges, the Court would have to explain (at the very least):
These are important questions (on which my view is that the best reading of s. 6 is that federal court judges are excluded: I may put my thoughts together in a paper, although I would not be the first to do so).

But one is liable to get sidetracked by relatively trivial issues. One is whether Justice Nadon lived in the province of Québec. This has precisely nothing to do with the question of statutory interpretation at issue.

A more recent one is whether Justice Nadon has been "quarantined", as sensationalist headlines announce, by the Court, and whether it is improper that he has an office in the building.

This language is most unfortunate and evidences a misunderstanding of the situation. Justice Nadon has been sworn in as a member of the Court. Of his own volition, he stood aside temporarily. It is entirely unsurprising that he has an office. Naturally, he does not participate in case conferences and the like. Certainly he does not discuss his own case with colleagues.

This sort of situation is not quite unprecedented. The House of Lords had to address an allegation that one of its members, Lord Hoffman, had an impermissible interest in the Pinochet litigation. They addressed it, indeed, finding that Lord Hoffman's involvement created a reasonable apprehension of bias. Life went on. Lord Hoffman is one of the most distinguished recent members of the House of Lords. Doubtless he did not discuss his own case with his colleagues. Withdrawing entirely from the business of the court, however, would have been inappropriate in the circumstances.

The Court has taken a very protective view of the integrity of the institution in setting out restrictions on contact between its eight other members and Justice Nadon. These restrictions remove any trace of a reasonable apprehension of bias that might taint the reference decision. In truth, they probably go further than is strictly necessary in the circumstances. As Eugene Meehan has said, this is the principle that justice should not only be done but be seen to be done "on steroids". Indeed, the likelihood of sensationalism on the part of the media may have led the Court to act so cautiously. This, I think, is a pity.

The risk is that these silly controversies and alarmist headlines will distract attention from the important issues about the special position of Québec's legal system, the nomination process and Canada's procedure for constitutional amendment.

UPDATE: Added a link to the podcast I did with the McGill Law Journal.

The Basis of Fairness in Administrative Law: Osborn v. The Parole Board

The recent UK Supreme Court decision in Osborn v. The Parole Board, [2013] UKSC 61 has already provoked interesting commentary on the relationship between the common law of procedural fairness and the European Convention on Human Rights. I have nothing to add to that commentary, but one of the things I find interesting about Osborn is the discussion of the basis of fairness in administrative law.

Monday, 4 November 2013

Using Administrative Law to Advance Substantive Equality

This is a second extract from my paper, co-written with Angela Cameron, on Furthering Substantive Equality through Administrative Law: Charter Values in Education. What follows is written for the context of education law, but applies much more broadly.



What spaces exist for the furthering of substantive equality within the existing administrative law framework? Five can be identified.

First, consider the apparent importance accorded to general norms. Questions of general law are both of central importance to the legal system as a whole and outside a decision-maker’s specialized area of expertise fall in the judicial domain.[1] Should a decision-maker make a misstep in answering such a question, the courts stand ready to intervene.[2] Enforcement of these general norms, then, is within the judicial bailiwick. Ensuring that certain important factors are taken into account in decision-making processes might amount to the sort of general norm that deserves Canada-wide enforcement. If there are important characteristics of vulnerable individuals which are common to multiple regulatory regimes, reviewing courts could ensure that administrative actors give the characteristics due consideration. Failure to do so would result in decisions being quashed and remitted for reconsideration of the previously overlooked characteristics. 

For example, prior to the reorientation of judicial review doctrine in Dunsmuir v. New Brunswick,[3] the Court applied a standard of review of correctness in TWU,[4] a case in which the respondent had refused to accredit the teacher training program of a private university. The refusal was based on the homophobic internal policy of the school, Responsibilities of a Membership in the Community of Trinity Western University, to which students and faculty were to adhere. Justices Iacobucci and Bastarache noted that “[t]he existence of discriminatory practices is based on the interpretation of the TWU documents and human rights values and principles. This is a question of law that is concerned with human rights and not essentially educational matters.”[5] TWU provides some support for the existence of a general norm of non-discrimination, which reviewing courts can stand ready to enforce. It may be that the TWU foundation has been washed away by the recent waves of reform.[6] However, regardless of its precise place as a matter of judicial review doctrine, non-discrimination is doubtless a key benchmark against which ministers, civil servants, school boards, principals and teachers should judge themselves.

Second, the Canadian definition of unreasonableness has ample scope for the furthering of substantive equality claims. Failing to pay heed to the need to accord substantively equal treatment to vulnerable individuals or failing to take into account evidence which is relevant because of the need to accord substantively equal treatment could cause a decision-making process to lack the necessary “justification, transparency and intelligibility” or a decision to fall outside the range of acceptable and rational solutions.[7] This may be a more appropriate means of furthering substantive equality claims in Canadian administrative law. Elevating considerations to mandatory status as general norms could reduce the degree of deference accorded to administrative actors, whereas conceiving of failures to take important characteristics into account as tending to lead to unreasonableness strikes a balance between administrative autonomy and the aim of furthering substantive equality. 

Third, administrative actors must take Charter values into account in exercising their discretion. Values must be distinguished from guarantees: even in cases where an individual cannot surmount the formal thresholds of specific Charter rights, “the values they reflect” can still be a relevant consideration for administrative actors.[8] In furthering substantive equality, this distinction is critical. Although many vulnerable individuals would not be able to surmount the high thresholds of, say, section 7 of the Charter, they can invoke the values underpinning them. An individual’s life, liberty and security of the person may not be threatened to such an extent that section 7 is itself engaged, but where administrative decisions touch upon these aspects of vulnerable people’s lives, discretion should be exercised in an appropriately sensitive manner. More broadly still, the notions of compassion and fairness, in a broader setting of constitutionalism, democracy and the rule of law, animate the provisions of the Charter. For the vulnerable individual, these notions are full of vitality. Section 15’s guarantee of substantive equality looms especially large in this decision-making picture, whether or not the formal threshold of section 15 is surpassed.

Fourth, when it comes to statutory values, a broad view should be taken of statutory purposes. As public documents, statutes should be construed by reference to institutional and social values. Imbuing statutory provisions with values such as knowledge, fairness, integrity and compassion will give further guidance to administrative actors as to how they should exercise their authority, to institutions formulating guidelines, and courts in their reviewing roles. For example, the overarching principle of tolerance in British Columbia’s School Act[9] has been held to have the effect that while a school board is “indeed free to address the religious concerns of parents, it must be sure to do so in a manner that gives equal recognition and respect to other members of the community”.[10]

Fifth, “soft law” can be adapted to the requirements of substantive equality. Statutes provide baselines and, by and large, high ceilings. Institutions and those arguing within them can exploit this space to improve the lot of vulnerable individuals. At base, though, the exercise of discretion is a human endeavour and should be treated as such. Training administrative actors what to look for and how to react to it remains paramount. Adapting law and discretion is important, but we should not lose sight of the human element at the heart of government.


[1]       Smith v. Alliance Pipeline, [2011] S.C.J. No. 7, [2011] 1 S.C.R. 160, at para. 26 (S.C.C.), per Fish J.
[2]       Law Society of New Brunswick v. Ryan, [2003] S.C.J. No. 17, [2003] 1 S.C.R. 247, at para. 268 (S.C.C.), per Iacobucci J.
[3]       [2008] S.C.J. No. 9, [2008] 1 S.C.R. 190 (S.C.C.) [hereinafter “Dunsmuir”].
[4]       TWU, supra, note 8.
[5]       Id., at para. 18.
[6]       See, e.g., Syndicat du personnel technique et professionnel de la Société des alcools du Québec (SPTP) c. Société des alcools du Québec, [2011] J.Q. no 12598, [2011] R.J.D.T. 993, at para. 71 (Que. C.A.).
[7]       Dunsmuir, supra, note 87, at para. 47.
[8]       Doré, supra, note 3, at para. 3, per Abella J.
[9]       R.S.B.C. 1996, c. 412 [hereinafter “School Act”].
[10]     Chamberlain, supra, note 28, at para. 19.