You’re Fired!

Earlier this month, the Saskatchewan Court of Appeal issued a decision which, if legally predictable, offers us a useful opportunity to think about some serious questions in Canadian administrative law. At issue in Saskatchewan Federation of Labour v. Government of Saskatchewan, 2013 SKCA 61, was the constitutionality of s. 20 of Saskatchewan’s Interpretation Act, 1995, which allows a newly elected government to dismiss from office members of boards, commissions, and other administrative agencies (except those appointment can only be terminated by the legislative assembly).

One of the agencies whose members are thus subject to summary dismissal by a newly installed cabinet is the province’s Labour Relations Board. In 2007, an incoming government dismissed its chairperson and vice-chairpersons, appointing in their stead persons with whose ideological leanings it was more comfortable. A number of trade unions challenged the dismissal on administrative law grounds, but that challenge failed. They then challenged the constitutionality of s. 20, alleging that it breached the constitutional principle of judicial independence.

The Court of Appeal unanimously rejected this argument. The question, it found, was settled by the Supreme Court’s decision in Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781, which held that the principle of judicial independence did not apply to administrative tribunals, except insofar as their decisions concerned rights protected by sections 7 or 11(d) of the Canadian Charter of Rights and Freedoms. For all other tribunals ― the majority of them, and in particular all those that deal with citizens’ economic interests, which s. 7 of the Charter does not protect ― legislatures are free to define and limit the extent of their independence. There is a “fundamental distinction between courts and administrative tribunals” (par. 51), the principle of judicial independence applying only to the former.

The unions argued that Ocean Port did not apply, because the administrative body it concerned, a liquor control agency, was of a policy-making character, whereas the Labour Relations Board’s functions were quasi-judicial. That was true, the Court of Appeal found, but not enough to make a difference, because the Supreme Court had not limited the scope of its holding in Ocean Port to administrative tribunals with policy-making functions. Nor did the Supreme Court’s subsequent decisions temper the distinction it had drawn in Ocean Port between courts and administrative tribunals.

This seems the right answer as a matter of law as it is. Whether the law should be this way is a different question. In the immediate context of this case, s. 20 makes all members of administrative tribunals, including those adjudicating disputes that would, if the tribunal did not exist, be settled by judges of ordinary courts, political appointees subject to dismissal by an incoming government for no better reason than ideological disagreement. This is, so far as I know, a very unusual provision in Canadian law. But it is not unusual for administrative tribunals to enjoy very limited independence from the government.

In Ocean Port, the Supreme Court suggests that this is as it should be.

Historically, the requirement of judicial independence developed to demarcate the fundamental division between the judiciary and the executive. …

Administrative tribunals, by contrast, lack this constitutional distinction from the executive.  They are, in fact, created precisely for the purpose of implementing government policy.  Implementation of that policy may require them to make quasi-judicial decisions. They thus may be seen as spanning the constitutional divide between the executive and judicial branches of government.  However, given their primary policy-making function, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it.  (Par. 23-24)

Perhaps so. But the Supreme Court’s other decisions make it clear that courts must defer to an administrative tribunal’s interpretation of law, except on legal questions considered “of central importance for the legal system” (a category that notably includes constitutional questions). This means that legal questions might be settled beyond the reach of judicial review by tribunals not only lacking all the (admittedly generous) trappings of judicial independence granted to courts, but indeed existing for the purpose of implementing government policy. In other realms, courts very much enjoy drawing a sharp line between law and policy and insisting that the two fields must be kept separate. (The Québec Court of Appeal’s recent gun registry decision, Canada (Procureur général) c. Québec (Procureur général), 2013 QCCA 1138, which I summarized here, is a fine example of that sort of rhetoric.) But in administrative law, the combination of a refusal to extend a constitutional requirement of adjudicative independence to administrative tribunals and the emphasis on deference to such tribunals’ decisions even on legal questions blurs that line into invisibility.

I can think of a couple of explanations for why this might be the case. One is practical: there is, as the courts are fond of saying, a “spectrum” of administrative tribunals, ranging from the entirely quasi-judicial to the obviously policy-making. Between these two extremes, distinguishing between the two categories to decide which tribunals should be granted independence would be very difficult, causing no end of litigation, an outcome courts are ― rightly ― keen to avoid. But if distinguishing between quasi-judicial and policy-oriented tribunals is impracticable, refusing to defer to tribunals’ interpretations of law ― and especially to the decisions of tribunals that lack independence ― is not.

The other explanation might (I am really just speculating here) be due to a common, but, in my view, unfortunate, understanding of the rationale for judicial independence. Both courts and scholars often emphasize the role of judicial independence in constitutional litigation, where the rights of citizens or the powers of governments are at stake. This emphasis, I am afraid, tends to make people forget that it is no less important in “ordinary” than in constitutional litigation that decisions be made according to law rather then anyone’s policy preferences. As it is, it is thought that review of constitutional decisions independent courts is enough.

It isn’t. Don’t count on the Supreme Court to change its approach though. And unless it does, courts will have to defer to administrative tribunals to whom governments can, if the tribunals’ decisions are not to their liking, say “you’re fired!”

Not So Great Expectations

Whatever his other merits and demerits, Conrad Black has made some noticeable contributions to the development of the law of justiciability in Canada. The latest came this week, in the form of a judgment of the Federal Court of Canada, in Black v. Advisory Council for the Order of Canada, 2012 FC 1234.

The first had come in Black v. Canada (Prime Minister), (2001) 54 OR (3d) 215  (ON CA), in which Mr. Black, as he then was, tried to challenge the advice that Jean Chrétien, then Prime Minister of Canada, give to the Queen regarding Mr. Black’s possible appointment to a peerage in the United Kingdom. The Court of Appeal for Ontario held that the matter was not justiciable.

Now, decade, a peerage, and a couple of criminal convictions later, Lord Black is trying to dissuade the Advisory Council for the Order of Canada from recommending the termination of his appointment to the Order due to his criminal convictions in the United States. Having notified Lord Black that it was considering making such a recommendation to the Governor General (who makes all the final decisions regarding the appointment to and termination from the Order), the Council invited him to make submissions on the matter, in writing. Lord Black, however, demanded an oral hearing, arguing that it was necessary to let him explain why his convictions were unjust, and thus not grounds for terminating his appointment. The Council refused, and Lord Black applied for judicial review of the refusal.

The first question facing Justice de Montigny was whether the application for judicial review was premature. Normally, a court will not review an interlocutory decision of an administrative tribunal―such as whether to allow a person to make written or oral submissions. These decisions can be reviewed as part of the review of the tribunal’s final decision. However, this case is exceptional: the Council’s final recommendation is not a “decision” at all, and so is not subject to review for that reason, while the Governor General’s eventual decision to withdraw an honour such as an appointment to the Order of Canada is discretionary and probably non-reviewable, so that there is no juncture at which the Council’s decision not to give Lord Black the opportunity to make oral submissions could be reviewed. The time to review it is now or never.

If, that is, it is the sort of decision that can be reviewed by courts at all―if it is justiciable. The decision to grant an honour is certainly not. It is made in the exercise of the royal prerogative over honours―a discretion belonging to the monarch (though in most cases exercised on the advice of others political actors, such as the Prime Minister or the Cabinet). That in itself does not make it non-justiciable. The question is rather whether it is purely discretionary and political, or concerns rights or legitimate expectations. The grant of an honour does not. It is inherently subjective and motivated by moral and political considerations rather than legal ones; it is a matter of discretion, not right or entitlement. And, says Justice de Montigny, so is the decision to withdraw an honour. Lord Black could have no expectation of remaining an Officer of the Order of Canada forever; indeed, the Order has an explicit policy stating that the Council will review the membership of those who have been found guilty of a criminal offence. However, the policy also lays down a specific procedure for such a review. And that, says Justice de Montigny, is what makes this case justiciable. Lord Black could have no legitimate expectations as to the substance of the review of his membership, but he could have such an expectation about the procedure that would be followed. (This is also the difference between this case and the 2001 one: there, there was no predetermined procedure for the Prime Minister to follow.)

The trouble for Lord Black is that the review procedure prescribed by the Council’s policy affords the person concerned an opportunity to make written, but not oral submissions. An oral hearing is possible, but not required. Therefore there can be no legitimate expectation that one will be held. Nor is there anything wrong with that, says Justice de Montigny, either as a general matter, or in Lord Black’s specific case. Generally speaking, a hearing is not required to make an administrative procedure fair, even one that can have very grave consequences, such as a person’s deportation from Canada. Hearings are generally required only in proceedings where credibility is at stake. Lord Black claimed that this was his case because what is really at issue is his innocence of the misdeeds of which he was found guilty by American courts. Not so, says Justice de Montigny. His reasons on this point are a little confusing, because he says both that the Council cannot second-guess the decisions of the U.S. Courts and that

if, as [Lord Black] submits, he was treated unfairly in the American justice system, there is nothing preventing him from making that argument in writing.  …  He has provided the Council with a copy of his book on the subject of his convictions which runs to more than 500 pages.

In any event, the fairness of the U.S. criminal proceedings does not depend on Lord Black’s credibility.

In the end, then, Lord Black was no luckier than 11 years ago. But maybe he can console himself with the fact that this time, his claim was, at least, found to be justiciable.

Operation Dismantle at the Olympics

Citizens concerned that the deployment of a weapons system in their place of residence will expose them to an increased risk of a devastating attack turn to the courts to try to block the deployment. They fail. To a Canadian constitutional law junkie, that’s the short story of Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441. But that is also the story, on which the BBC reports, of a group of London residents who tried to challenge the decision by the British defence ministry to install a missile system on the roof of their apartment building as part of the security deployment for the upcoming Olympics. The High Court rejected their claim yesterday in Harrow Community Support Ltd v The Secretary of State for Defence, [2012] EWHC 1921 (Admin). But although the two cases can, I think, be fairly summarized in much the same way, there are substantial differences in the courts’ reasoning.

Operation Dismantle was an attempt by a coalition of civil society groups to block the testing of American cruise missiles in Canada on the ground that it increased the likelihood of nuclear war and thereby contravened Canadians’ right to the security of the person, protected by section 7 of the Charter. The Supreme Court had “no doubt that the executive branch of the Canadian government is duty bound to act in accordance with the dictates of the Charter” (455) – and that the judiciary could verify compliance with this duty even of a cabinet decision having to do with foreign policy (459).

However, the Court held “that the causal link between the actions of the Canadian government [in allowing the missile test to go forward], and the alleged violation of appellants’ rights under the Charter is simply too uncertain, speculative and hypothetical to sustain a cause of action” (447). Chief Justice Dickson insisted that judicial “remedial action will not be justified where the link between the action and the future harm alleged is not capable of proof” (456). The problem for the appellants was that given the inherent uncertainty of international relations, “it is simply not possible for a court, even with the best available evidence, to do more than speculate upon” (454) the consequences of the decision to allow missile tests. And as subsequent decisions of the Supreme Court show, the same can be true of other governmental decisions in the realm of foreign policy. Thus the actual consequences of the Supreme Court’s holding that “disputes of a political or foreign policy nature may be properly cognizable by the courts” (459) are rather less far-reaching than they might first seem to be. A sweeping assertion of judicial power is combined with a very cautious approach to its exercise.

The decision of the High Court might seem to be, in a sense, the opposite. Justice Cave-Haddon professes extreme caution, asserting that “[m]ilitary operational deployments for reasons of national security are matters for which the Government is answerable to Parliament and not – absent bad faith or acting outside the limits of the discretion – the Courts” (par. 27). And yet he makes – on the strength of a fairly scanty record quickly put together for an application heard on an expedited basis – detailed findings of fact, including a finding regarding degree to which the installation of the missile system makes the claimants’ apartment block more likely to be a terrorist target. Unfortunately for claimants, this degree is, in the judge’s view, nil. The claimants lose, but – purportedly – on the merits, rather than because their claim is inherently incapable of prof.

The reason for my skepticism as to whether this really is a decision on the merits is that the judge appears to have accepted with no reservations the government’s testimony, and in particular that of the general responsible for the military’s Olympics security deployment. Now it is not clear whether, or how seriously, the claimants challenged that evidence. But what seems clear enough is that much of it was opinion (about the missiles’ necessity, safety, etc.), not fact capable of proof in court. And even if we treat such testimony as expert evidence, what chance would the claimants have had to challenge it even if they had tried? A high-ranked military officer is, after all, presumably the best expert on such questions, and a court would be naturally inclined to defer to him.

Perhaps it is better simply to admit, as our Supreme Court did in Operation Dismantle, that the allegations of claimants in such cases are not capable of proof. Or to hold, as both the English High Court and our Supreme Court ostensibly did not,  that such cases are, quite simply, not justiciable.

En Français S.V.P./In English Please

In 2008, the Township of Russel, just outside Ottawa, passed a by-law requiring any new commercial sign to be bilingual. An angry activist and a shopkeeper challenged the validity of the by-law. The Court of Appeal for Ontario has rejected their challenge, in Galganov v. Russel (Township), 2012 ONCA 409, released last Friday.

Before getting to the challenge itself, the court addressed the preliminary issue of Howard Galganov’s standing to bring it. Mr. Galganov neither lives nor carries on a business in the township, and is not personally affected by the by-law. At common law, he does not have standing. But subs. 273(1) of Ontario’s Municipal Act, S.O. 2001 c. 25, provides that an illegal by-law can be quashed on application of “any person”. That’s great, says the court, but “any person” isn’t just any person. “The words ‘any person’ in s. 273(1) of the Act mean ‘any person who has standing under the common law relating to standing'” (par. 15). The old presumption that legislation will not be interpreted to depart from the common law unless clear language indicates that it does still has some life in it.

Be that as it may, another applicant, Jean-Serge Brisson, has a shop in the township, which carries a unilingual French sign, so there is no question about his standing to challenge the by-law. His first claim was that the by-law was ultra vires the township, essentially because the Municipal Act does not include an explicit grant of power over language to municipalities. The court rejected that submission, saying that these days, grants of powers to municipalities are broad and general, and there is no need to look for such a specific authorization as Mr. Brisson claimed was necessary, and holding that the by-law at issue was authorized by par. 11(2)(5) of the Municipal Act, which provides municipalities with the power to make by-laws “respecting the … [e]conomic, social and environmental well-being of the municipality.” Mr. Brisson argued

that, instead of promoting the economic or social well-being of the municipality, the By-law detracts from it.  This argument is based on the supposition that a commercial establishment with a bilingual exterior sign signals that it will be able to serve customers in both languages.  If a commercial unilingual English establishment is compelled to post an exterior bilingual sign, customers will be misled and upset if they cannot be served in French (par. 33).

The court gave this claim short shrift, on the ground that it was not supported by evidence; indeed, there was expert evidence to the contrary. Actually, one can question whether it is the court’s role to venture on such an inquiry at all. No court would question whether an act of Parliament really tended to promote the “Peace, Order, and good Government of Canada” – it is enough that Parliament thinks it does. However, Parliament is sovereign within the competence defined by division of powers provisions of the Constitution Act, 1867, and subject to the Charter. A municipality only exercises limited delegated powers, so courts are justified in ascertaining whether municipal by-laws are within the bounds of the delegation. The problem here is that delegation is so vast that its terms cannot be policed without the courts’ inquiring into the wisdom of the legislation, which is something courts are not very good at, and ought to be (though perhaps they are not) uncomfortable with doing.

Mr. Brisson’s second claim was that the by-law was unconstitutional because it contravened the Charter‘s protection of freedom of expression. Following the Supreme Court’s decision in Ford v. Québec, [1988] 2 S.C.R. 712, which struck down Québec’s prohibition on commercial signs in languages other than French, the court accepted that the by-law did infringe freedom of expression as guaranteed by s. 2(b) of the Charter. However, it held that the by-law was saved by s. 1 of the Charter. Its objective, “the promotion of the equality of status of both French and English,” is pressing and substantial, and it is rationally connected to the objective. As usual, the real question is that of proportionality. Apparently, Mr. Brisson’s main argument on this point was that the by-law prevented people from having signs in a language other than French or English. But the by-law does no such thing, the court points out. “Persons engaged in commerce can use any language of their choice along with French and English (par. 80). Indeed it is rather shocking that much Mr. Brisson and his lawyers placed much reliance on this claim.

The court went on to add that “in the past, Brisson has chosen to express himself only in English; he now chooses to express himself only in French on his exterior sign while continuing to employ English in other aspects of his business. To require him to employ English on his sign in addition to French is a minimal impairment of his right to freedom of expression” (par. 83). That, it seems to me, is bad reasoning. What does it matter that Mr. Brisson chose to express himself in English in the past, if now he wants to express himself in French only? The court seems to be questioning his good faith, or to be contradicting its own holding that his freedom of expression has been infringed. But that is not its role. It has nothing to do with answering the question that the case actually raises: is forcing shopkeepers to express themselves in French and English, whether they want to or not, the least restrictive means open to the township of achieving its pressing and substantial objective of promoting the equality of status between French and English. The court’s judgment, in my view, does not actually answer that question.

A Reasonable Opinion

The Supreme Court delivered an interesting decision in Halifax (Regional Municipality) v. Canada (Public Works and Government Services), 2012 SCC 29, yesterday. On the surface, it is a rather dull, or at least purely technical, case about the proper method of assessing the value of land occupied by a historical monument. But it has much broader implications, because it is a useful reminder of the way in which courts ought to approach discretionary decision-making by the government, something of which the government of the day is very fond.

The case concerns the application of Payment in Lieu of Taxes Act, which authorizes the Minister of Public Works and Government Services to make “payments in lieu of [municipal] taxes” to municipalities in which federal property is situated. Federal property is constitutionally exempt from provincial (and hence municipal) taxation, but as a matter of fairness, Parliament authorizes payments to municipalities that are meant to replace municipal taxes that would otherwise be levied on most federal property. Nonetheless, the statute confers a great deal of discretion on the Minister: he decides whether to make payments; the amount of the payment is calculated using the taxation rate which would be applicable “in the Minister’s opinion” if the property were taxable; and the value to which this rate is applied is also one which “in the Minister’s opinion” would be assessed if the property were taxable.

 Justice Cromwell, writing for a unanimous Court, summarizes the case very effectively at par. 5:

The Minister … decided that a national historic site is effectively valueless if it does not support economically beneficial uses. He therefore concluded that roughly 40 acres of the [Halifax] Citadel site are worth ten dollars. This conclusion, in my view, is unreasonable for two reasons. First, the property value is to be the value which, in the Minister’s opinion, the local assessment authority would apply to the property … However, in valuing the property the Minister adopted an approach which the record discloses no example of a Canadian assessment authority using, and which significantly differs from the approaches that the record suggests assessment authorities in provinces across the country do use.  The Minister’s opinion that the value he arrived at “would be attributable by an assessment authority” has no basis in and is contrary to the evidence.  Second, the Minister’s decision is inconsistent with the Act’s purpose.  The Act permits payments for national historic sites. To decide that these sites have no value for taxation purposes except to the extent that they could support commercial uses negates the very purpose of their inclusion in the PILT scheme.  For these two reasons the Minister’s decision was unreasonable.

So, the Supreme Court reminds us – and, more importantly, the federal government, – the exercise of discretionary powers is judicially reviewable, and even though the standard of review is reasonableness, it is a meaningful review. The phrase “in the Minister’s opinion” which Parliament uses seems to confer a very wide discretion on the Minister. But this discretion has to be exercised on the basis of evidence and in a logical way. The Minister cannot act on a whim or just because a certain decision suits him better than its contrary. Nor can he act in a way that frustrates the purpose of the legislation he is applying.

None of this is exactly new – these themes go back at least to Justice Rand’s judgment in Roncarelli v. Duplessis, [1959] S.C.R. 121, for example his famous statement that “[i]n public regulation … there is no such thing as absolute and untrammelled “discretion”, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator” (p. 140). But the reminder is timely. Recent federal legislation has taken to delegating considerable powers to the executive, and also, it seems, to trying to insulate executive action from review, by adding discretion-conferring catchphrases such as “in the Minister’s opinion” to already-existing grants of discretionary power. As the Supreme Court’s latest decision shows, however, delegation and conferral of apparent discretion does not free the executive to do whatever it pleases.

Federal Court Roulette

Professor Sean Rehaag of Osgoode Hall has recently posted on SSRN a disturbing statistical analysis of the Federal Court of Canada’s decisions on applications for judicial review of refugee protection determinations by the Immigration and Refugee Board. His main conclusion, based on a study of more than 20,000 cases filed between 2006 and 2010, is that there shocking variations in the rates at which individual FCC judges grant leave for such applications to be heard on the merits (with one judge granting almost 80% of leave applications, and several in over 25%, while for some others, the rate is below 5%), or allow the applications on the merits (with several judges allowing over half of the applications they hear, while many others allow less than 20%). Having clerked at the FCC (for a judge who, on both scores, is somewhat less favourable than average to the applicants), I have to admit that I had no idea that these variations would be so large. I knew that different judges had different approaches to these (as well as any other) cases, but the extent of the disparities is startling.

Prof. Rehaag thinks that leave is not granted often enough, and that in the perfect world the requirement to seek leave would be abolished legislatively or, failing that, declared unconstitutional. If that’s not possible, he suggests a number of other reforms that would make obtaining leave easier. My anecdotal experience makes me wonder if he is right. The experience is one-sided, because I was not at all involved in leave decisions (nor were, I believe, any other clerks). But among the couple dozen merits cases I worked on (including reviews both of refugee status determinations and of other IRB decisions), there certainly were some where the leave grants looked very soft. Nonetheless, prof. Rehaag’s numbers show that applications on which leave is granted by “generous” judges are not necessarily less likely to succeed on the merits than those granted by more “stringent” ones, which means that he seems to be right that many applications that have merit are thrown out simply because the judge reviewing them at the leave stage was a “stringent” one.

Whatever one thinks of the FCC’s overall treatment of immigration cases – whether one is convinced that it is insensitive to the immigrants’ and refugees’ plight, or that its judges are a bunch of pro-fraudster obstructionists, as Jason Kenney apparently believes, one ought to be distressed at these findings of inconsistency between the court’s members. For my part, having had the privilege of interacting with some of them and helping in their work, I am convinced that they are decent, conscientious, and hard-working people. But the fact that conscientious, hard-working people seem to fail so miserably at producing consistent results, to which, I am sure, they would all agree they aspire, is all the more disturbing.  As prof. Rehaag writes, judges are only human, and some discrepancies between individual approaches are inevitable, but surely not such glaring differences.