Transparency and Institutional Bias in Canadian Administrative Law

Why the Dunsmuirian approach is not enough

Laverne Jacobs, University of Windsor

When it comes to the broad platform of procedural fairness, Dunsmuir itself says very little. Yet, the Dunsmuirian approach to determining standard of review has had a significant impact on the review of procedural fairness in Canadian administrative law.

In this contribution, I argue that despite Dunsmuir’s influence on procedural fairness generally, a Dunsmuirian approach without more is not enough to produce meaningful judicial review of the procedural fairness issues relating to independence and accountability. These issues are often presented through cases in which institutional bias is alleged on the part of the decision-making body.  As academics, lawyers, judges and legislators, we would be wise at this juncture to consider more closely the ways in which administrative law can serve to regulate issues of procedural fairness in the administrative state. I propose that we start this endeavour from a largely different perspective: with an articulation of the value of transparency and what it can bring to both public administration and to judicial review, using institutional bias as an example.

a) Dunsmuir and procedural fairness generally

The Supreme Court of Canada in Dunsmuir reduced the number of standards of review from three to two and set out what was hoped to be a simpler methodology for determining the appropriate standard of review. This change was made in response to the growing concerns that the standard of review analysis was becoming unnecessarily complex, time-consuming and confusing, to the detriment of both litigants and the development of the case law (see, in particular, Justice LeBel’s cri de coeur in Toronto (City) v CUPE 2003 SCC 63).

The paragraphs in the Dunsmuir decision that address the standard of review analysis deal primarily with how to determine which standard to apply (Dunsmuir, paragraphs 43-64). In brief, from these paragraphs, the reader learns that the reasonableness standard is animated by deference as respect and that this deference usually exists in situations where there is a privative clause, specialized expertise, and/or questions of law that stem from the tribunal interpreting its own statute or statutes closely connected to its function. Correctness is said to apply to constitutional questions regarding the division of powers between Parliament and the provinces, questions of true jurisdiction or vires, questions of general law that are of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise, and to issues regarding the jurisdictional lines between two or more competing specialized tribunals. Interestingly, procedural fairness is not highlighted in Dunsmuir as containing a set of questions to which correctness review applies (even though the nature of the procedural fairness obligations owed to a public servant is a key issue in the case). In the post-Dunsmuir jurisprudence, it is identified as such for the first time by the Supreme Court of Canada in Khosa (2009 SCC 12) (at para. 43) in the following year.

Yet, despite the affirmation that correctness should be the appropriate standard of review for questions of procedural fairness, in the post-Dunsmuir jurisprudence, one begins to see a door opening towards reasonableness for the review of certain matters within the procedural realm. Admittedly, the door had been pushed ajar much earlier with Baker [1999] 2 SCR 817 where the SCC had outlined five factors for determining the degree of fairness owed. The fifth of these factors requires a reviewing court to pay deference to the procedural choices made by the decision-maker. It wasn’t until the pronouncement by Justice Evans in Re:Sound v Fitness Industry Council of Canada 2014 FCA 48, followed by Justice Stratas’ even more direct grappling with the issue of whether deference should be given to certain procedural matters in Maritime Broadcasting 2014 FCA 59 , however, that the approach raised by Baker’s fifth factor was truly taken seriously. In Maritime Broadcasting, the standard of reasonableness was applied to a labour board’s choice of procedure for receiving the evidence and submissions of parties. The decision was appropriate in its context but the identification of matters of procedural fairness that should receive reasonableness review may be fine-tuned even further by a look at some of the instances in which reasonableness review may be more tricky to accept.

b) Institutional Bias as an Issue of Procedural Fairness

Disqualifying bias on an institutional level exists when a reasonable apprehension of bias can be raised in a significant number of cases before the administrative actor. Questions of disqualifying bias, including institutional bias, reside within the realm of procedural fairness.

A common way that institutional bias issues occur is as a result of unrevealed interactions between the executive branch of government in a way that either appears to have or may have had an impact on an administrative actor and/or the way that it is to determine an issue before it. For example, in the ALRB 2004 ABQB 63 case, the executive branch of government consulted the provincial labour board when it was revamping the province’s labour legislation. The purpose of the consultations was, in part, to obtain information from the Board about how the legislation was working on the ground. Much of the discussions were simply unknown, however, with the documents released in response to freedom of information requests made by two of the major unions arriving in redacted form.  The unions brought an application for judicial review, arguing that institutional bias tainted any decision relating to the provisions of the legislation involved in the legislative restructuring. Although their application was unsuccessful, the case raises interesting questions about the need to safeguard the adjudicative independence of administrative decision-makers as well as how to clarify the parameters of any accountability owed to the executive branch of government. Ultimately, guidelines on consultation between the board and the executive were created, setting out positive obligations regarding disclosure to the parties and to the public.

Another example may be found in Geza 2006 FCA 124, where, in the wake of a large influx of Hungarian Roma refugees, the Immigration and Refugee Board (IRB) worked with the executive branch of government to create a “lead case”. For the Federal Court of Appeal, Justice Evans held that although there was no single fact which on its own could establish a reasonable apprehension of bias, a reading of the totality of the evidence would suggest to a reasonable person that reducing the number of successful Roma refugee applications was among the goals of the design of the lead case initiative. This was enough to establish a reasonable apprehension of institutional bias.

It is well-established doctrine that protecting the independence of decision-makers serves the greater goal of ensuring that they can make decisions in an atmosphere free of inappropriate influence or interference. This in turn protects public confidence in the administration of justice (Valente v The Queen, [1985] 2 SCR 673Canadian Pacific Ltd v Matsqui Indian Band [1995] 1 SCR 3).

c) Transparency: Tempering Dunsmuir‘s Effect

The Supreme Court of Canada has not applied a Dunsmuirian approach (review conducted in a manner “respectful of the agency’s choices”) in a procedural case involving institutional bias. This is a good thing. The challenge posed by the Dunsmuir approach of allowing deference in procedural fairness matters is that it risks overlooking the direction of judicial review’s scrutiny. Dunsmuir’s reasonableness is best suited for litigious matters involving parties before the administrative actor. The concept of being respectful of agency procedural choices aligns most logically with choices made internally by the agency alone, based on its expertise and within the context of a specialized process designed to widely improve efficiency across the range of its cases.  In such cases, there may be an expertise in process developed by the tribunal that should be taken into account on judicial review. When it comes to matters involving the tribunal in relation to other institutional actors, however (for example, the executive branch of government), correctness review can provide a useful external check. By its very nature, correctness review as identified in Dunsmuir, focuses on external relationships. The Supreme Court of Canada in Dunsmuir lists examples of external relationships that should attract correctness review — for example, matters involving the tribunal in relation to other tribunals, matters addressing the constitutional division of powers.

In addition to the trend towards deference in the lower court procedural fairness jurisprudence, there is another element that may trigger the courts to lean towards reasonableness review in procedural fairness matters. This is the fact that procedural fairness issues may stem from the tribunal’s interpretation of its “home” legislation, such as its regulations relating to procedure or even its own soft law.

However, without more, a deferential approach could be problematic. An emphasis on the value of transparency would serve to guide both administrative action and judicial review. A norm or culture of transparency would ideally discourage the executive and the tribunal from creating scenarios that work against a particular group or party. Through a norm or culture that favours transparency, the very steps of creating a lead case like the one in Geza may have raised questions about whether the lead case initiative was justifiable, especially in light of the correspondence. Similarly, it may have prompted the Labour Ministry and the ALRB to consider developing disclosure guidelines at an earlier stage. We know a culture of transparency can be difficult to attain on the ground: examples relating to the inception of freedom of information legislation (Worthy) and even its impact after long-term use (Jacobs) show this.

Edging towards reasonableness review in situations of institutional bias could prove harmful to the development of good public administration. Transparency as a value needs to be ascertained within the administrative state, including through judicial review. Collectively, we should work towards this goal. Without more, a deferential approach could be detrimental to ensuring administrative justice.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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