Friday, 27 September 2013

Procedural Fairness in Public Sector Bargaining

Public Service Alliance of Canada v. Canada (Attorney General), 2013 FC 91 is an illuminating case on many issues, especially procedural fairness. 

At issue was a labour relations dispute between the federal government and one of its agencies. The bone of contention was a direction by the Minister for Canadian Heritage that a group of workers at the Canada Border Services Agency should hold a vote on the last offer made to them. Section 183 of the Public Service Labour Relations Act allows the Minister to order that a vote be taken where he considers it would be in the public interest to do so.

The direction in the present case was issued without consideration of a report concluded by an expert body which had previously been appointed under the Act. Moreover, it was issued without notice to the applicant. Gleason J.'s ultimate conclusion was that the direction was unfair.

Thursday, 26 September 2013

Administrative Law and the Next Supreme Court of Canada Justice

With Justice Morris Fish's retirement, the federal government must appoint a new judge from the province of Québec to the Supreme Court of Canada. A shortlist of three names is lying on the Prime Minister's desk.

Among them is thought to be Justice Bich of the Québec Court of Appeal. I spoke with the Globe and Mail's Sean Fine last week. He mentioned that there was a sentiment that Justice Bich was thought to be too liberal for nomination by the current conservative government. This characterization seemed to me to be quite inapt, as I explained to Mr. Fine. Here is the relevant extract from his article:
Justice Bich, an expert in administrative law who writes frequently, and with gravitas, and knows civil law thoroughly, is considered a favourite. “Any third-year law student would tell you she’s a contender,” a Montreal lawyer said.
And she can’t be easily pigeonholed. “She’s a very intelligent judge who is likely to go further than the current Supreme Court in deferring to government agencies,” said Paul Daly, a University of Montreal law professor.
Presumably, the idea that Justice Bich is too "liberal" is intended to mean that she will be willing to enforce limits on government action, especially limits drawn from the Charter. But judging by Bich J.A.'s administrative law jurisprudence the idea that Bich J. would be an interventionist is entirely wrong-headed. In fact, she has gone further than the Supreme Court of Canada in advocating (a) deference on questions of procedural fairness; and (b) deferential review of general questions of law. A Supreme Court with Justice Bich on it would offer more latitude to government, not less.

In this, Justice Bich follows in a long tradition of Canadian labour lawyers (for she is, first and foremost, a labour-law expert) who have been suspicious of judicial activism. For example, Paul Weiler's influential 1971 article warning of the "slippery slope" of judicial intervention focused on the Court's meddling in labour law.

In short, Bich J.A. has been an innovative thinker on questions of administrative-law jurisprudence and she has wholeheartedly embraced the Supreme Court of Canada's deferential turn. Not appointing her because of a perception that she would be interventionist or too "liberal" would be profoundly silly.

Wednesday, 25 September 2013

Audrey Macklin on Divito

Audrey Macklin sent on some perceptive, though critical, comments on my post on last week's Supreme Court of Canada decision in Divito. She kindly allowed me to share them:
1. I agree with your preference for the minority view on the breach of s. 6(1). If you are right that an inchoate appeal to positive/negative rights underpins the majority, I would go further and say that such a classification is both distracting and unhelpful when it comes to analysing many Charter rights (and perhaps any const'l rights).  Consider the franchise -- one cannot conceive of exercising a right to vote without considerable state 'intervention' to make it happen.  So too with entry to Canada (coincidentally, another right attached to citizenship).  The default position of all states that consider sovereignty to reside in the right to control borders is that the border is always already closed unless and until the state assents to entry.  And this state practice reaches well beyond the border (as in the title of a 2011 gov't initiative) -- a citizen cannot board a plane for Canada without a passport, and if you pitch up at a land border without one, good luck entering. This is why in Abdelrazik (as I recall) the FC grasped that a right to a passport is encompassed in the right to enter. So there is no zone of freedom within which which [lawful] entry to Canada happens in which one might imagine a negative right to be free of gov't interference in entry to Canada.

2.  The 'floodgates' concern you identify fails to distinguish those impediments to entering Canada that are exclusively within state control (consent to prisoner transfer, border clearance, passport issuance) and those that are not (funding a plane ticket).  As it happens, Canadian embassies/high commissions do sometimes pay for flights of Cdns who are stranded abroad for one reason or another (usually catastrophic events outside their control), but it is often a loan, not a gift. In any case, one need not take a position on whether the gov't has a legal obligation to do that in order to dispense with the floodgates argument.

3. If one recognizes (and takes seriously) that withholding consent to a prisoner transfer does violate s. 6, the discretionary criteria in s. 10 are not so 'evidently pertinent' after all. If I am a citizen, why does it matter how long I have been absent, whether I have family members, what my intentions were in leaving or remaining outside Canada, my health status etc.?  The point of being a citizen (as opposed to a permanent resident) is that these things don't matter.  I cannot see how the fact that I'm a prisoner seeking transfer transforms them into justifications for a denial of my s. 6 right, unless one implicitly downgrades the right to a privilege.  The only plausible contenders for justified grounds to limit the right are those that relate to security/public safety.  This is what the FCA's fanciful hypothetical was about.  Yet even this is ultimately irrational:  It relies on the notion that a person in a Canadian prison poses a risk to public safety/security. In other words, it asks us to accept that Corrections Canada cannot protect Canadians from offenders while those offenders are INSIDE prison, even though the detaining state seems able to do so, and Canada seems able to do so with respect to all the dangerous people already in Canadian prisons. (The Federal Court's fanciful hypothetical tried to maneouvre around this). Indeed, if a Canadian is convicted in Canada, Canada simply has no choice but to find a way to incarcerate that person and keep everyone safe.  So it is neither rational nor plausible to claim that the same can't be done with a Canadian incarcerated abroad.  That is, there is no justification once one genuinely recognizes that the right of a citizen to enter is breached by withholding consent to a transfer. I suppose one could try to make something out of the cost considerations of incarcerating Canadians transferred from abroad, but this seems pretty lame and, in any case, it ignores the reciprocity upon which prisoner transfer is based -- Canadians are transferred into Canadian prisons, but foreign nationals are also transferred out. 
The factum prepared by the Asper Centre can be found here.

Any further thoughts or comments are welcome!

Friday, 20 September 2013

Positive and Negative Mobility Rights: Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47

In Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, handed down yesterday, the Supreme Court of Canada was unanimous in upholding the International Transfer of Offenders Act against (a long-shot) constitutional challenge. But the judges mapped out two different routes to that conclusion, evidence I think of difficulty in tracing the contours of the right at issue. Understanding these two routes is important, because it will have an effect on how the Act is treated in future cases. Not all of what follows is in my core area of expertise, so I welcome comments.

Public Interest Immunity and Good Record Management

Where disclosure of documents would be detrimental to the public interest, courts have the power to refuse it (see e.g. here). So-called public interest immunity is a hugely important topic, especially where the powers of public bodies are concerned. The issue very recently divided a very strong bench of the Federal Court of Appeal in an important case, Slansky v. Canadian Judicial Council, 2013 FCA 199 (not yet on FCA website; link courtesy of Rob Centa).

The division sheds light on the nature of public interest immunity and how best courts might respond to claims that information should not be disclosed. In particular, their power to manage the judicial-review record might be usefully employed to minimize the damage to the rule of law that sweeping claims of immunity can do.

Wednesday, 18 September 2013

Formalism and Deference: a Striking Contrast

I have posted previously about the Irish courts' preference for a narrow approach to judicial review of administrative action. Another recent example is Walsh v. Revington, [2013] IEHC 408. This time, the judgment is useful as a means of throwing into contrast formal and deferential approaches to judicial review. A Canadian court, I suspect, would have come to a different conclusion.

Thursday, 12 September 2013

Good Faith Bargaining and Deference

The Supreme Court of Canada has granted leave in National Gallery of Canada v. Canadian Artists’ Representation, 2013 FCA 64. This has the potential to be a very interesting administrative law case. I think that the majority of the Federal Court of Appeal was wrong and hope that the Supreme Court will favour the approach taken by Pelletier J.A. in his dissent.

Wednesday, 11 September 2013

Administrative Guidelines in the Form of Art?

I don't want to add too much to the hubbub about the Charter of Values that Québec's nationalist minority government 'unveiled' yesterday. The basic idea is that religious neutrality is to be required in the public sphere (but there are numerous exceptions). I have a couple of administrative-law-related points.

Tuesday, 10 September 2013

Sossin and Baxter on Tribunal Clusters

Lorne Sossin and Jamie Baxter have posted on SSRN their paper on Ontario's approach to reforming administrative justice:
Claimants who come to administrative tribunals in Canada, as elsewhere, expecting a convenient forum to resolve their problems may discover that institutional resources and expertise, their own knowledge of the system, and their statutory entitlements and legal rights are fragmented between agencies with diverse norms and mandates. The provincial government of Ontario in Canada has recently enacted a novel strategy called tribunal clustering to confront these challenges. This paper explores the structure and rationales behind Ontario’s new tribunal clusters and compares these with reform models in Australia and the United Kingdom. The authors argue that tribunal clusters offer a flexible approach to institutional change that is responsive to the needs of users and can ultimately improve access and the quality of decision making. In their view, clusters represent a promising first step – but not a final destination – to achieve a more effective and coherent system of administrative justice.
The clustering approach (bunching similar tribunals together) is to be distinguished from the amalgamation approach (a general appellate tribunal). Sossin and Baxter's take is nuanced, but they helpfully outline some of the possible benefits of clustering:
 First, bigger may not always be better. Clusters allow tribunals, government and independent reviewers and academics alike to put that proposition to the test. For example, large-scale amalgamations may trade off flexibility and adaptability within the super-tribunal in return for greater conformity across the organization. Second, clusters allow for learning across and between tribunals. Tribunals previously in relationships with separate ministries can, in one cluster, highlight the best practices and procedures from each in order to give the cluster a distinct identity. Third, the structure of tribunal clusters may accurately reflects how users actually experience justice problems in some circumstances. National civil legal needs surveys conducted in several countries over the past decade have confirmed that recognizable patterns emerge in the ways that individuals experience multiple issues.56 The surveys reveal that specific problems tend to cluster together – meaning that, for example, an individual who experiences a housing problem would be more likely to also encounter challenges related disability benefits. Tribunals will adjudicate many of these clustered subject matters. These survey data suggest that tribunal systems might be more effective at addressing administrative justice problems if they are structured to reflect the underlying needs of their users. Tribunal clusters offer one means of moving toward this outcome.
You can download it here.

Friday, 6 September 2013

Bagley on the Puzzling Presumption of Reviewability

An interesting new paper by Michigan's Nicholas Bagley:
The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, or the Constitution. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors — appellate-style arbitrariness review — was not only unheard of prior to the twentieth century, but was commonly thought to be unconstitutional. The ostensible statutory source for the presumption — the Administrative Procedure Act — nowhere instructs courts to strain to read statutes to avoid the preclusion of judicial review. And although the text and structure of the Constitution may prohibit Congress from precluding review of constitutional claims, a presumption responsive to constitutional concerns would favor review of such claims, not any and all claims of agency wrongdoing.

To date, however, the presumption has gone unchallenged. This is regrettable. Congress has the constitutional authority, democratic legitimacy, and institutional capacity to make fact-intensive and value-laden judgments of how best to weigh the desire to afford private relief against the disruption to the smooth administration of public programs that such relief may entail. Courts do not. When the courts invoke the presumption to contort statutes that rather clearly preclude review to nonetheless permit it, they dishonor Congress’s choices and limit its ability to tailor administrative and regulatory schemes to their particular contexts. The courts should end this practice. Where the best construction of a statute indicates that Congress meant to preclude judicial review, the courts should no longer insist that their participation is nonetheless indispensable.
Bagley's focus is on American law, but the question of the basis for judicial review of administrative action is one which preoccupies judges and jurists alike in many jurisdictions. English academics have spent two decades with horns locked over the question.

For my part, I would state the presumption of reviewability slightly differently: where there is an effect on an individual's rights or interests (and the individual can scale procedural hurdles, such as standing), administrative action is presumed to be reviewable. This, I think, is the Canadian position and the position in other Commonwealth countries. So stated, the presumption is simply an aspect of the rule of law.

One argument that Bagley does not consider is the one made most elegantly by David Dyzenhaus. Where a statute purports to exclude judicial review, it speaks out of both sides of its mouth: it imposes limits yet asks courts to ignore them. Here is what I said about the problem in A Theory of Deference in Administrative Law:

It might be argued that in order to truly give effect to legislative intent, a reviewing court would have to give full effect to a statutory provision that purports to exclude judicial oversight. This is not necessarily so. The problem with privative clauses, so called because they deprive a reviewing court of jurisdiction, is that they create tension within a statute. On the one hand are provisions that prescribe limits to statutory powers; on the other hand is a privative clause which purports to render these limits unenforceable by reviewing courts. Privative clauses are, as a result, incoherent, as the much-maligned Lord Hewart observed in the context of a “conclusive evidence” provision:
In passing such a clause Parliament, it may be thought, was really stultifying itself, because, having inserted express provisions in the Act for the protection of persons liable to have their property taken without their consent, and having enacted that the council in making…an order must have regard to these provisions, it then, by means of this ‘conclusive evidence clause’ rendered such provisions nugatory, and, so far as victims are concerned, a mockery.
I also had something to say about the Administrative Procedure Act, suggesting that the best way to resolve the tension created by privative clauses is to ratchet up judicial deference, rather than excluding judicial review altogether:


Section 701(a) of the APA provides that judicial review will be generally available ‘except to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law’. The presence of these clauses gives rise to the same incoherence that is created by the presence of a privative clause in a statute. Indeed, the situation created by the APA is indistinguishable from the situation created by an individual privative clause, for the APA only legitimates the exclusion of review; that exclusion is, in the final analysis, effected by privative language in the statute. Where language in the relevant statutory provisions satisfies the two clauses in the APA, it has a privative effect. Such language is permitted, but not mandated, by the APA. The incoherence could be removed by treating the satisfaction of the two clauses as factors going to the choice of the appropriate standard of review.
Bagley notes that intrusive judicial review can undermine statutory schemes: he gives the example of the Veterans' Administration. I agree, but I think the solution lies in deference to agencies rather than in the exclusion of judicial review.

You can download the thought-provoking paper here.

Treaties, Aboriginal Rights and Judicial Review

Canadian courts have recently begun to recognize a "duty to consult" Aboriginal peoples in respect of government decisions that may affect their rights. Precisely when this duty is triggered, and against which organs of government, is an important question. In Hupacasath First Nation v. Canada (Foreign Affairs), 2013 FC 900, the claim was that the duty applied to the ratification of an international treaty -- an issue usually considered beyond the pale as far as judicial review is concerned.