2011 BCCAT Educational Conference & Annual General Meeting

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

3. Standard of Review 1. Standard of Review

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

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

6. Standard of Review: Legislative Intent “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)

7. Standard of Review: Legislative Intent Concordant and inconsistent statutes

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

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

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

11. Procedural Fairness 2 Duty to be Fair

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

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

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

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

16. Duty to be Fair: Adequate Reasons 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 2c Adequate Reasons Spinks v. Alberta (Law Enforcement Review Board), 2011 ABCA 162

17. Duty to be Fair: Adequate Reasons “…[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) 2c Qualities

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

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

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

21. Constitutional matters: Public law, private law

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

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

24. BC ATA 5 BC Administrative Tribunals Act

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

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

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

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