1. 2011 BCCAT Educational Conference & Annual General Meeting Recent Developments in Administrative Law Professor Mary Liston Faculty of Law University of British Columbia October 3, 2011 River Rock Conference Centre Richmond, BC

2. 1.Standard of Review a.Legislative Intent b.Reasonableness v. Correctness c.Subordinate Legislation 2.Duty to be Fair a.Content b.Legitimate Expectations c.Adequate Reasons 3.Constitutional Developments a.Remedies b.Public Law and Private Law: Intersection 4.Discretionary Decisions a.Fettering 5.BC ATA a.Patently Unreasonable Standard: Discretionary and Non-Discretionary Decisions Overview It’s ALL about the STATUTE

3. 1.Standard of Review Standard of Review

4. Proper interpretive approach to statutes: The “General Roadmap” Words are read in:  Entire context  Grammatical and ordinary sense when not defined  Harmoniously with the scheme of the Act, the purpose or object of the Act, and the intention of Parliament  Textual, contextual and purposive analysis 1a Legislative Intent 1 Standard of Review

5.  Legislative history  Hansard debates  Minister’s statements affirming statutory purpose in subsequent amendments  Legislative silences regarding potential amendments  Judicial interpretation  Statutory purpose affirmed in jurisprudence  Functional analysis of institutional relations and positions  Rules of construction: express intent versus silence; absurd results; structural analysis; consistent expression across a number of related statutes  Agency interpretation  Statements regarding statutory purpose by Agency Officials  Expert evidence  Political scientists in Information Commissioner provide contextual information that is not for use in actual interpretation Aids used to find legislative intent Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 Standard of Review: Legislative Intent

6. “While I agree that the Access to Information Act may be considered quasi- constitutional in nature, thus highlighting its important purpose, this does not alter the general principles of statutory interpretation. … The Court cannot disregard the actual words chosen by Parliament and rewrite the legislation to accord with its own view of how the legislative purpose could be better promoted.” (Information Commissioner, para. 40) Standard of Review: Legislative Intent

7. Concordant and inconsistent statutes Standard of Review: Legislative Intent Access to Information Privacy ActInterpretation ActFinancial Administration Act Exemption 19. (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined in section 3 of the Privacy Act. s.3 “personal information” means information about an identifiable individual that is recorded in any form … but, for the purposes of … section 19 of the Access to Information Act, does not include (j) information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual … s.2 “public officer” “any person in the federal public administration who is authorized by or under an enactment to do or enforce the doing of an act or thing or to exercise a power, or on whom a duty is imposed by or under an enactment” SCC = NOT APPLICABLE  Maybe some overlap  Definition only applies in this Act  Public officer not the same as “officer of a government institution” s.2 “public officer” “a minister of the Crown and any person employed in the federal public administration” SCC = NOT APPLICABLE  Too broad, unrelated subject, different context

8. Parties cannot, by simply agreeing with each other, contract out of the appropriate standard of review (Celgene, para. 33-34) Reasonableness will be the presumptive standard when:  Specialized tribunal  Expert tribunal  Interpreting enabling legislation  Outcome of decision falls within “range of possible, acceptable outcomes which are defensible in respect of the facts and law” = Deference 1b Reasonableness v. Correctness Standard of Review: Reasonableness

9.  Refusal by government to disclose documents requested by Commissioner under Access to Information Act is reviewed by courts on a standard of correctness  Standard used by appellate courts to review application judge’s decision re: statutory interpretation is correctness  Standard used by appellate courts to review decision on facts is deferential unless  Wrong legal principle  Palpable and overriding error 1b Reasonableness v. Correctness Standard of Review: Correctness

10. Regulations can inform the statutory context when (Mavi, para. 57):  Form an integrated scheme with the enabling legislation  Statute indicates that they are mutually informing  Interpreting enabling legislation 1c Subordinate legislation Standard of Review: Subordinate legislation

11. 2Duty to be Fair Procedural Fairness

12. Canada (Attorney General) v. Mavi, 2011 SCC 30 Fundamental question (para. 38)  What specific rights does the duty of fairness reasonably require of an authority in a particular legislative and administrative context? General rule (para. 39)  Legislator always intends a duty of fairness to apply unless clear statutory language or necessary implication demands the contrary. 2aDetermination of content It’s still all about the STATUTE

13.  Nature of decision and process followed  Nature of the statutory scheme and terms of governing statute  Importance of the decision to the affected individual  Legitimate expectations of the individual challenging the decision  Choice of procedures made by the agency  Agency has jurisdiction to choose own procedures  Agency has expertise in determine appropriate procedures in the circumstances Non-exhaustive list of factors from Baker (para 42) Duty to be Fair: Content

14. Revised institutional procedure in Mavi Before filing a certificate of debt with Federal Court, government must: 1.Notify sponsor at last known address 2.Offer limited time opportunity to explain in writing considerations that weigh against immediate collection 3.Consider any relevant circumstances brought to attention 4.Notify sponsor of decision Duty to be Fair: Content

15. “Where a government official makes representations within the scope of his or her authority to an individual about an administrative process that the government will follow, and the representations give rise to the legitimate expectation are clear, unambiguous and unqualified, the government may be held to its word, provided the representations are procedural in nature and do not conflict with the decision maker’s statutory duty. Proof of reliance is not a requisite.” (Mavi, para. 68) 2bLegitimate Expectations Duty to be Fair: Legitimate Expectations

16.  Inadequate reasons and unreasonable decisions are not identical  Unclear writing does not necessarily indicate deficiency in reasoning  Deficient reasons do not automatically guarantee allowing an appeal  Sufficient reasons are mandatory  Tribunal must address all relevant, obvious topics  Matter of fairness and of an appellate court’s ability to review  Not a freestanding ground of appeal Duty to be Fair: Adequate Reasons 2c Adequate Reasons Spinks v. Alberta (Law Enforcement Review Board), 2011 ABCA 162

17. “…[T]he Court of Appeal must have a meaningful and effective role: legislation allows an appeal from the Board to the Court of Appeal. And the public and the losing party are entitled to know why (though not how) the Board's decision was reached, to know that it considered the main arguments, and to see that only relevant considerations were used. The reasons must address the substance of the live issues, key arguments, contradictory evidence, and non-obvious inferences. The reasons must be intelligible to the parties, and provide for meaningful appellate review. The test is functional and purposeful. Reasons are especially important if the law or the facts are unclear.” (Spinks, para. 30) Duty to be Fair: Adequate Reasons 2c Qualities

18. 3 Constitutional Matters Statute statute statute statute statute … Constitutional matters

19. Court of competent jurisdiction: R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765 & Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28  Does this tribunal have the jurisdiction to decide questions of law?  Does the statute give express or implied jurisdiction?  Has the legislature clearly intended NOT to withdraw jurisdiction? If yes  Tribunal can grant Charter remedies for Charter issues Then ask  Can the tribunal grant this particular remedy? 3a s.24(1) Remedies Constitutional matters: Remedies

20. Canada (Attorney General) v. Mavi, 2011 SCC 30: Immigration and Refugee Protection Act  Does procedural fairness apply in situations governed by the private law of contract? Celgene Corp. v. Canada (Attorney General), 2011 SCC 1: Patent Act  Do commercial law principles and ordinary commercial law meanings control specific language in the enabling statute or should definition be responsive to surrounding legislative context and purposes? 3b Public Law/Private Law Constitutional matters: Public law, private law

21. MaviCelgene Undertaking required by statute Terms dictated by statute Minister uses statutory power to fix the terms of sponsorship = Contract is a creature of statute “Sold” has dual residency in private law and public law It is open-textured, not fixed and clear language Need to look to the purpose of the statute = Sold must be interpreted in relation to consumer protection goals which inform statutory context Constitutional matters: Public law, private law

22. 4 Discretionary Decisions Canada (Attorney General) v. Mavi, 2011 SCC 30 Discretionary Decisions

23. “[D]iscretion is fettered or abused when a policy is adopted that does not allow the decision-maker to consider the relevant facts of the case, but instead compels an inflexible and arbitrary application of policy” (para. 65) Fettering Discretionary Decisions

24. 5 BC Administrative Tribunals Act BC ATA

25. Viking Logistics Ltd. v. British Columbia (Workers’ Compensation Board), 2010 BCSC 1340  Dunsmuir reasonableness will affect interpretation of patently unreasonable  Patently unreasonable is at upper end of reasonableness spectrum  Requires greatest deference and courts will not second-guess the outcome  Decision must still be defensible with respect to facts and law 5aPatently Unreasonable BC ATA: Patently Unreasonable

26. Principles informing patently unreasonable  Clearly irrational, evidently unreasonable  Privative clause requires highest level of deference  Review applied to the result, not to the reasons leading to the result  Decision set aside only where administrative body commits jurisdictional error  Decision based on no evidence is PU, but insufficient evidence is not  High degree of deference regarding reasons offered for the impugned decision 5aPatently Unreasonable BC ATA: Patently Unreasonable

27.  Patently unreasonable standard cannot be replaced by reasonableness simpliciter standard as defined by Dunsmuir  Highest level of deference to questions of fact and proper interpretation and application of provisions in home statute  No evidence or indefensible outcome = PU  Indefensible or clearly irrational interpretation of statute = PU 5aPatently Unreasonable Jozipovic v. British Columbia (Workers’ Compensation Appeal Tribunal), 2011 BCSC 329 BC ATA: Patently Unreasonable

28. read the statute Read The Statute READ THE STATUTE Conclusion