Despotism, Revisited

Thoughts upon belatedly reading an (anti-)administrative law classic

I have, rather belatedly, read an (anti-)administrative law classic, The New Despotism by Lord Hewart’s  ― an attack on the power of what would come to be called the administrative state published in 1929 by the then-Lord Chief Justice of England. The book made quite an impression when it was published, prompting the government to set up an inquiry, and even has its own Wikipedia page. However, I don’t think The New Despotism is often discussed in Canada these days. (A quick HeinOnline search shows no more than occasional citations in the past decade; and, what little that’s worth, I hadn’t heard about it until I sat in on my colleague Vernon Rive’s administrative law lectures.) So perhaps some comments here may be of interest, if only to my fellow dabblers, despite the book’s antiquity.

In a nutshell, Lord Hewart was alarmed by the expansion of unreviewable legislative and adjudicative powers delegated by Parliament to officials within the executive branch. While he is almost certainly skeptical of the administrative state generally, Lord Hewart mostly suspends this skepticism and focuses his attacks not on the exercise of power by administrative decision-makers as such, but on the fact that, all too often, administrative power is exercised more or less secretly, without the persons affected by it being able to make submissions to decision-makers, or without decision-makers having to take these submissions into account, or to explain how they reached the conclusions they did. He criticizes legislation empowering administrators to override statutes, or to interpret and apply them without any judicial oversight. Such legislation, he insists, creates a system that is not, properly speaking, one of “administrative law”, such as it exists in Europe (Lord Hewart doesn’t share A.V. Dicey’s notorious disdain for continental administrative law), but one of “administrative lawlessness”.

The remarkable thing is that, while it is fashionable to describe The New Despotism (insofar as it is referred to at all) as a “tirade” delivered by an apologist for the nightwatchman-state dark ages, his critique has been largely accepted ― including by the latter-day defenders of the administrative state ― and incorporated into modern administrative law. Whatever our views on the Canadian (and American) practice of deference to administrative interpretations of statutes, even those who defend this practice accept that some judicial oversight over administrative decision-makers is constitutionally essential. And they, like their critics, would share Lord Hewart’s indignation at decision-making processes in which anonymous officials may act without receiving evidence or submissions from affected parties, whom they need not appraise of their concerns, and are not required to give reasons. He might not be kindly remembered, but in a very real sense, Lord Hewart won the battle of ideas. Pro- or anti-administrativists, we largely agree with him, and indeed among ourselves. The outstanding disagreements are of course significant, but not nearly as significant as the general assent to the subjection of administrative decision-making to judicial review in matters both procedural and substantive.

Interestingly, however, this consensus was not implemented in the manner Lord Hewart envisioned. It is largely reflected in the development of the common law, and not so much in changes to legislative practice which he urged. Some legislative changes have occurred. In particular, there are better, though I suspect still deficient, mechanisms for Parliamentary review of regulations, which Lord Hewart called for. But legislatures have not ceased purporting to delegate vast and unreviewable powers to the executive. What has changed is that the courts came to take a much more skeptical approach to such legislation, and seldom give it its full effect. This, I think, is not surprising. Lord Hewart thought that, to eradicate administrative lawlessness, “what is necessary is simply
a particular state of public opinion”, for which to “be brought into existence what is necessary is simply a knowledge of the facts”. (148) This seems almost touchingly naïve ― almost, because, as a former politician himself, Lord Hewart ought to have known better. It is implausible that public opinion can be drawn to, let alone firmly focused on, issues that are bound to strike non-lawyers as purely technical matters. This is something worth pondering as we reflect on the relative legitimacy of judicially-articulated and legislated rules, whether generally or specifically in the context of administrative law.

Let me now go back to the disagreement between those who favour judicial deference to administrative decision-makers and those who resist it. That Lord Hewart would surely have been in the latter camp will not persuade anyone who is not, given his reputation as an arch-anti-administrativist. But there is another jurist, whose name carries more authority in Canada than Lord Hewart’s, whom I am happy to claim for non-deferential camp (to which I belong): none other than Lord Sankey, of the “living tree” fame. In an extra-judicial speech, delivered just months before the opinion in Edwards v Canada (Attorney General), [1930] AC 124, a.k.a. the Persons Case, and quoted by Lord Hewart, Lord Sankey emphasized the importance of the Rule of Law, and of the courts as its enforcers:

Amid the cross-currents and shifting sands of public life the Law is like a great rock upon which a man may set his feet and be safe, while the inevitable inequalities of private life are not so dangerous in a country where every citizen knows that in the Law Courts, at any rate, he can get justice. (151)

And then, describing the threats to the courts’ role in upholding the Rule of Law, Lord Sankey pointed to

what has been described as a growing tendency to transfer decisions on points of law or fact from the Law Courts to the Minister of some Government department. (151)

And as for Lord Hewart himself, he did have an answer to at least one objection to judicial oversight of the administrative state that the defenders of deference still trot out from time to time: that allowing unobstructed judicial review of administrative decisions will lead to too much costly litigation. (For instance, in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, Justice Karakatsanis’ majority opinion claimed that “[a] presumption of deference on judicial review … provides parties with a speedier and less expensive form of decision making”. [22]) Lord Hewart responded to this concern by pointing out that

what is desired is not that there should be endless litigation but rather that litigation should be rendered as a rule unnecessary by the diffused and conscious knowledge that, in case of need, recourse might be had to an impartial public tribunal, governed by precedent, and itself liable to review. (155)

The point is one that goes to the very nature of the Rule of Law:

Nobody outside Bedlam supposes that the reason why Courts of law exist in a civilized community is that the founders of the State have believed happiness to consist in the greatest possible amount of litigation among the greatest possible number of citizens. The real triumph of Courts of law is when the universal knowledge of their existence, and universal faith in their justice, reduce to a minimum the number of those who are willing so to behave as to expose themselves to their jurisdiction. (155)

Just last year, the UK Supreme Court adopted essentially this reasoning in R (Unison) v Lord Chancellor [2017] UKSC 51, in the course of explaining the importance of access to adjudication ― perhaps ironically, in that case, adjudication in administrative tribunals, albeit ones functioning quite differently from those decried by Lord Hewart. Arch-anti-administrativist he may have been, but Lord Hewart was a more intelligent, and is a more relevant, jurist than those who dismiss him might realize. If you are interested in administrative law and haven’t read The New Despotism, you probably should read it.

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.

The Merits of Dunsmuir

Rightly or Wrongly Decided (Then and Today)?

The Honourable Joseph T Robertson QC, formerly of the Federal Court of Appeal and the New Brunswick Court of Appeal

This digital symposium marks the 10th Anniversary of Dunsmuir’s release. Undoubtedly, attention will focus on whether this “transformative” decision has achieved its stated objective of simplifying the law of administrative deference. Regrettably, the Supreme Court’s post-Dunsmuir jurisprudence has generated allegations of doctrinal “incoherence” and “inconsistency”. It is also alleged that the deferential standard of review has had little impact on case outcomes that hinge on the interpretation of enabling legislation. Too often the Court is caught applying the correctness standard under the banner of reasonableness (“disguised correctness review”). While that contention falls within my terms of engagement, the others do not.

The title of this post is obviously disingenuous. The “rightness” or “wrongness” of any Supreme Court decision is largely a matter of personal judgment. Importantly, I fail to qualify as a disinterested observer, having authored Dunsmuir on behalf of the New Brunswick Court of Appeal. That decision was upheld in the result, but for reasons that bear little upon what was argued and decided in the lower court. In the circumstances, I hope to sustain reader interest by advancing the following thesis: there is an arguable case that Dunsmuir would be decided differently today when it comes to the underlying merits. I also address the procedural fairness issue in a way that others have not.

While Dunsmuir has generated more than its fair share of commentaries, few have looked to the underlying issues that motivated Mr. Dunsmuir to seek leave of the Supreme Court. Most have forgotten the central issue. The adjudicator was asked to decide whether non-unionized employees of the government were to be treated like unionized employees when it came to termination of employment. Mr. Dunsmuir was a non-unionized employee who had been terminated with severance in lieu of notice. The government consciously chose not to allege cause, as is its prerogative under common law principles.

I pause here to draw attention to what every employment lawyer knows. The underlying issue and fact pattern in Dunsmuir parallel those found in a relatively recent decision: Wilson v Atomic Energy Canada Inc., 2016 SCC 29 (“Wilson”). Better still, the same holds true in regard to Knight v Indian Head School Division No. 19, [1990] 1 SCR 653 (“Knight”) which was central to Dunsmuir’s analysis of whether Mr. Dunsmuir was owed a duty of procedural fairness.

After exhausting the government’s internal grievance procedure, Mr. Dunsmuir filed a third-party grievance that was heard by an adjudicator appointed by the labour board. A preliminary issued was raised with respect to whether, on a discharge with notice/severance, the adjudicator was “authorized” under the enabling legislation to look into the reasons underlying the government’s decision to terminate Mr. Dunsmuir’s employment. The government argued that, under the enabling legislation, it retained the right to terminate with proper notice/severance and, therefore, it was irrelevant whether the government had sufficient grounds for dismissal. In effect, the government argued that only employees who had been discharged for cause could invoke the third-party grievance procedure (save in regard to the amount of notice/severance). In response, Mr. Dunsmuir insisted that the same legislation authorized the adjudicator to look into the true reasons for his dismissal.

The adjudicator ruled that “[a] grieving employee is entitled to an adjudication as to whether a discharge purportedly with notice or with pay in lieu of notice was in fact for cause, either disciplinary or non-disciplinary.” Inexplicably, however, the adjudicator made no finding as to whether the underlying facts supported a dismissal for cause. He simply left us with the understanding that the decision to terminate Mr. Dunsmuir’s employment was not “disciplinary” but related to “work performance” and his “suitability for the positions”.

The adjudicator’s preliminary ruling provided the confidence necessary to pursue the procedural fairness issue. It was framed in terms of whether the duty owed to Mr. Dunsmuir, under the principle established in Knight, had been breached. This argument flowed easily from the facts. Not only was Mr. Dunsmuir a contract employee, he was also an “at-pleasure” appointee of the Lieutenant Governor in Council. As Clerk of the Court of Queen’s Bench, Mr. Dunsmuir easily qualified as a public office holder.

The adjudicator summarily accepted Mr. Dunsmuir’s argument that the government had failed to inform him of the reasons for its dissatisfaction with his work and to provide him with an opportunity to respond and, therefore, the duty had been breached. The adjudicator then declared Mr. Dunsmuir’s discharge void and ordered retroactive reinstatement. Finally, the adjudicator acknowledged the possibility of judicial review before increasing the notice period from four to eight months, but without offering a legal justification for the increase.

In the Supreme Court, the newly minted deferential standard of reasonableness was applied to the adjudicator’s interpretative ruling. Correlatively, the Court was unanimous in declaring his interpretation unreasonable: “The decision of the adjudicator treated the appellant, a non-unionized employee as a unionized employee.” But, as the Court quickly noted, the interpretative ruling was “inconsequential to the overall determination of the grievance.” The adjudicator simply failed to decide whether or not the government had cause for terminating Mr. Dunsmuir’s employment. This meant that the success of Mr. Dunsmuir’s appeal hinged on the application of the procedural fairness duty.

The Supreme Court made no mention of the proper review standard for procedural fairness issues and understandably so. The Court had decided to overturn its earlier ruling in Knight. No longer was Mr. Dunsmuir owed the administrative duty. To borrow directly from Dunsmuir: “where a public employee is employed under a contract of employment, regardless of his or her status as a public office holder, the applicable law governing dismissal is the law of contract, not general principles arising out of the public law.”

Surely no one quibbles with the proposition that Dunsmuir got it “right” on the standard of review issue. And for the record, the notion that the interpretative (preliminary) issue qualified as a “true jurisdictional question” never crossed the mind of anyone and properly so! That said, I acknowledge a movement from within the Court to adopt a single unifying standard of reasonableness for all issues: see Wilson, per Abella J. I also acknowledge a movement from outside the Court to have the deferential standard extended to procedural fairness issues. Paul Daly, C. Bredt and A. Melkov argue in favour while (Justice) John Evans argues for the status quo: with respect to the American debate, see Adrian Vermule v (Judge) Richard Posner.

In the space of five paragraphs, the majority of the Supreme Court concluded the adjudicator’s interpretation of the enabling legislation was “deeply flawed” (paras. 72-76). That opinion was shared by those who wrote concurring opinions. Dunsmuir’s analysis of the interpretative issue has attracted criticism for applying the correctness standard under the banner of reasonableness. Both Matthew Lewans and David Mullan insist that the Dunsmuir Court breached its own directives when applying the reasonableness standard to the adjudicator’s interpretative ruling. And indeed, Professor Mullan made the same observation in regard to the decision of the Court of Appeal. On reflection, he writes with a gentle pen and the criticism of both scholars has merit. However, Dunsmuir is not the only Supreme Court precedent to engage in disguised correctness review. There are close to twenty post-Dunsmuir decisions listed on my scratch pad that warrant the same indictment.

Disguised correctness review means that the reviewing court conducts a de novo analysis of the interpretative issue. Little or no meaningful reference is made to the reasoning of the administrative decision-maker; just the interpretative result. Instead, the reviewing court begins its analysis by turning to the template set out in Elmer Dreidger’s modern principle of statutory interpretation; the one the Supreme Court consistently applies. This leads to an unanswered question: Why does the Court pursue correctness review under the banner of reasonableness? While several plausible explanations are available, Paul Daly offers valuable insights (“The Signal and the Noise in Administrative Law”).

Professor Daly observes, for example, that in cases where the issue is perceived as one of public importance, or of significance to the law, the greater the temptation to seek out the correct or preferred answer. There is no precedential significance in cases that say the interpretative result falls within a range of reasonable outcomes. In theory, such cases should never make it through the Court’s screening process. But once the interpretative issue is recast as a question of whether non-unionized employees should receive the same treatment as unionized ones, what judge would not grant leave to appeal? The opportunity to look into power imbalances in the workplace is the kind of stuff that fits nicely within the job description of any court of last resort. [No one who made an appearance in Dunsmuir anticipated the Supreme Court’s move to a single deferential standard of review and with a revised framework for isolating the proper standard; nor did anyone anticipate that Knight would be targeted.]

Additionally, I maintain the Court’s affinity for disguised correctness review most often stems from the failure of administrative decision-makers to offer an interpretative analysis that comports with Dreidger’s template. One has to assume as much, as the Court’s references to the decision-maker’s reasons invariably focus on the interpretative result to the exclusion of anything that might have been penned in support of one interpretation over another. This leads to the inference that the Court is too often presented with an interpretive result but not much in terms of justification. Accordingly, the Court has no practical alternative than to engage in correctness review.

The fact of the matter is that Mr. Dunsmuir never pursued the interpretative issue in terms of whether the legislation only allowed for terminations with cause. It would be unbecoming to engage in “bootstrapping” with respect to the reasons that propelled the Supreme Court to distance itself from the adjudicator’s approach to the interpretative issue (termination for “disguised” cause). In its place, I offer a compromise of sorts. I maintain there is an arguable case that Dunsmuir would be decided differently today.

My thesis rests on one’s acceptance of the premise that the Dunsmuir legislation was ambiguous as to whether all terminations of employment within the civil service must be for cause. As Professor Willis so aptly stated so long ago: “the words are ambiguous enough to induce two people to spend good money in backing two opposing views as to their meaning.” Assuming ambiguity is present and in the absence of compelling evidence that might shine light on the ever-elusive intent of the legislature, then the task of the adjudicator is to settle on an interpretation that it believes is consistent with the legislation’s objectives: see Mclean v British Columbia (Securities Commission), 2013 SCC 67.

Admittedly, any interpretative argument would have to overcome the presumption against legislation that abrogates common law rights such as the right to dismiss with proper notice/severance. That hurdle, however, is not insurmountable. Indeed, Paul Daly argues that administrative decision-makers should not be bound by the interpretative principles that bind the courts, a proposition with which I respectfully disagree. Additionally, he argues that statutory ambiguity should not be the gateway to administrative deference. On that issue we are also in respectful disagreement. Nevertheless, the fact that my real-life hypothetical assumes ambiguity may be sufficient for purposes of deflecting immediate criticism.

In the face of an ambiguity, one would expect the adjudicator’s analysis to embrace a candid consideration of the competing policy arguments in support of competing interpretations. At this point, the adjudicator now has the opportunity to demonstrate the expertise which is otherwise presumed. Surely, it is the expert who is aware of the workplace realities that permeate public sector employment (in New Brunswick) and is able to communicate those realities when explaining why one interpretation should prevail over another. And surely, everyone is entitled to know why the distinction between unionized and non-unionized employees should be dissolved when it comes to termination of employment.

Some will query why any government would want to relinquish its common law right to dismiss with notice in the face of what every employment lawyer knows is an “elevated” threshold for establishing just cause. Arguably, governments must be as fiscally responsible as employers in the private sector. Perhaps the answer lies in the understanding that, as an employer, the Crown owes more to its employees than do private sector employers. Or perhaps it is because of documented abuses surrounding dismissals with notice in the civil service. Surely, these are the kind of questions the labour expert is expected to address (with the assistance of counsel). Unfortunately, that type of analysis is not found in the any of the decisions underlying Dunsmuir (nor for that matter in Wilson).

At this juncture, the legal realist will take over where Paul Daly left off. Cases such as Dunsmuir have nothing to do with deference. The underlying issue is whether the historical power imbalance in the employment relationship is one requiring reform. The rule of law is preserved so long as administrative reform hinges on statutory ambiguity. The non-expert fails to recognize the influence of those who regard the common law as an impediment to achieving justice in the work place and, correlatively, the non-expert fails to recognize that dismissals with notice are unjust dismissals. Of course, this line of reasoning is consistent with that expected of an employee advocate and antagonistic to the majority view expressed in Dunsmuir. Here is what the majority had to say: “In the context of this appeal, it must be emphasized that dismissal with reasonable notice is not unfair per se. An employee’s right to terminate the employment relationship with due notice is simply the counterpart to the employee’s right to quit with notice [para. 105].”

The notion that a dismissal with notice is an unjust dismissal brings into consideration the Court’s post-Dunsmuir decision mentioned earlier. As in Dunsmuir, the issue in Wilson was whether a non-unionized employee could be terminated without cause. Mr. Wilson, an employee of a federally regulated employer, subject to the Canada Labour Code, was dismissed with severance in lieu of notice. Like Mr. Dunsmuir, he sought to grieve the dismissal but his employer objected for the same reason advanced in Dunsmuir. However, the federal legislation differs in wording. Under s. 240(1) of the Code, a person may grieve if she or he believes the dismissal is “unjust”. Relying on earlier arbitral precedents, the adjudicator held that a dismissal with notice/severance is itself an unjust dismissal. A divided Court (5/4) upheld that interpretative result. In short, terminations can only be for cause under the federal legislation. Curiously, the majority opinion did not address Dunsmuir’s observations with respect to dismissals with notice or severance. The minority opinion did!

Parenthetically, the majority in Wilson is also guilty of disguised correctness review and understandably so. The adjudicator based its decision on the earlier arbitral jurisprudence that favoured Mr. Wilson’s interpretation. As a result, there were no reasons upon which to measure the interpretative result. Further, no attempt was made to look for reasons that might lie elsewhere in the arbitral jurisprudence as happened in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61.

If Dunsmuir were to be re-litigated, Wilson is the one case that might reasonably impact on the outcome. Admittedly, the statutory scheme in Wilson differs in material respects from the Dunsmuir scheme, and in particular with respect to the history of the legislation and, correlatively, the evidence of Parliamentary intent. In short, Wilson serves as both a shield and a sword. As a shield, it counters a view expressed in Dunsmuir that a dismissal with notice is not “unfair” or “unjust”. In summary, there is an arguable case that Dunsmuir would be decided differently on the interpretative issue.

I turn now to the procedural fairness issue which had been abandoned in the Court of Appeal but resurrected for the benefit of the Supreme Court. Having regard to the Court’s subsequent decision in Canada (Attorney General) v Mavi, 2011 SCC 30, it appears Dunsmuir’s ruling is still good law. Hopefully, supporters of Knight will acknowledge an arguable case with respect to the incompatibility of administrative and contract law principles, having due regard to the significance of the good faith doctrine, as discussed in Dunsmuir, and more recently in the Court’s now lead decision of Bhasin v Hrynew, 2014 SCC 71. I also assume commentators will draw a distinction between express and implied employment contracts.

Personally, I believe that Dunsmuir got it right when it came to overruling the impact of Knight on employees who are subject to a written contract and who are also public office holders. But I am also convinced that even if Knight were still good law, Mr. Dunsmuir could not have succeeded. The adjudicator applied the “wrong” standard. In Knight the Court held: “The content of the duty of fairness would be minimal where dismissal is at pleasure.” In fact, the adjudicator in Dunsmuir imposed an “elevated” duty. As will be explained, the elevated one too closely resembles the one applied at common law for determining sufficient or just cause in those instances where the employment is terminated because of a failure to meet work performance expectations (“incompetence). But first, I offer a rudimentary understanding of the law surrounding Knight.

At common law, at-pleasure appointees could be terminated without notice, without cause and without ever knowing why the employer terminated the appointment. The duty of procedural fairness was intended to ensure that the reasons for termination were communicated to the appointee and, in turn, the appointee had the opportunity to address those reasons before the termination took effect. In theory, the appointee would have a chance to address misinformation that might reasonably influence the decision to terminate. This is administrative law’s equivalent of the last chance doctrine.

In Knight, the director of education for the school board had entered into a three-year contract of employment that provided for the possibility of a renewal for an additional three years. However, the contract also provided for termination by ether party upon the giving of three months’ notice. The parties began negotiations for a renewal but the school board was only prepared to renew for a year due to employment issues that had arisen over the preceding years. With no agreement in sight, the school board decided to terminate the contract with timely notice. Mr. Knight’s first argument was that under the Education Act he could only be dismissed for cause! As that interpretative argument failed, the Court focused on whether Mr. Knight’s employment attracted a public law duty of fairness.

The majority (4/3) of the Knight Court so found, but went on to hold there had been no breach. As an at-pleasure appointee, Mr. Knight was well aware of the reasons why his contract was not renewed. Further, he was given the opportunity to speak at the board meeting where the motion to terminate the contract on notice was passed. In brief, the minimal standard had been met. I now turn to an abbreviated recitation of Dunsmuir’s facts, as told by the Supreme Court.

Mr. Dunsmuir’s employment relationship was “not perfect”. The probationary period was extended twice to the maximum of 12 months. He was reprimanded on three occasions during his two years with the government. Two of the reprimands are relevant to the procedural fairness issue. The second reprimand led to a one-day suspension and to notice of work performance issues, including complaints from unnamed staff, lawyers and members of the public. The third reprimand embraced three alleged incidents relating to his job performance and contained a warning that a failure to improve would result in further disciplinary action up to and including dismissal. This was followed by a few meetings the Regional Director to discuss court backlogs and organizational problems in response to undocumented complaints lodged by staff. A further meeting was scheduled to deal with work-related issues but cancelled because of the decision to terminate Mr. Dunsmuir’s tenure with the government.

Now recall that Mr. Dunsmuir had argued that the government had breached its duty of procedural fairness by failing to inform him of the reasons for its dissatisfaction with his work and to provide him with an opportunity to respond. Recall also that the adjudicator summarily accepted that submission. With great respect, that is not a “minimal” threshold or standard. In fact, it is too closely aligned to the common law standard applied in cases where the termination of employment is for cause based on the employee’s inability to perform (“incompetence”). In such cases the employer must establish progressive discipline: sufficient calls for improvement and a warning that failure may result in dismissal.

Succinctly stated, the adjudicator in Dunsmuir effectively adopted the common law standard for establishing just cause as the administrative standard for establishing a breach of the procedural fairness duty. Importantly, the common law standard is incompatible with the minimal standard adopted in Knight! Finally, even if one were to apply the Knight standard, can one reasonably conclude that Mr. Dunsmuir had no knowledge of his employer’s concerns over his performance and no notice of possible termination of employment? Personally, I think Binnie J’s concurring reasons in Dunsmuir capture the essence of the case. The adjudicator had “stretched the law too far in coming to [Mr. Dunsmuir’s] rescue.” But of course I am not a disinterested observer!

The Privilege of Public Employment

Is Dunsmuir’s treatment of public employees consistent with the principles it articulated?

Matthew Lewans, University of Alberta

The desire to clarify the parameters of judicial review looms large in Dunsmuir v New Brunswick. In their opening paragraph, Bastarache and LeBel JJ propose to reassess the law of judicial review, because it “has been marked by ebbs and flows of deference, confounding tests and new words for old problems, but no solutions that provide real guidance”. Fifty paragraphs later, they set out a simplified standard of review analysis. So at least from a methodological perspective, one might propose to assess whether and to what extent the decision renders the practice of judicial review more efficient. However, I want to evaluate Dunsmuir’s theoretical foundation as opposed to exploring whether it provides a more efficient framework for judicial review.

In order to do develop this theoretical critique, it is worth comparing Dunsmuir with other paradigmatic cases in the pantheon Canadian public law like Roncarelli v Duplessis (1959) and Nicholson v Haldimand-Norfolk Police Commissioners (1978). These cases are regarded as paradigmatic, because they articulate and defend fundamental principles of fair treatment and substantive review in an attempt to verify the legality of administrative law. This 20th century renaissance resulted in doctrinal reforms that echo Charles Reich’s argument that various forms of government largesse should not be considered mere “privileges” which can be revoked arbitrarily by state actors, but relevant material interests (which he provocatively dubbed “new property”) which warrant constitutional constraints on administrative action. Thus, in Roncarelli Rand J rejected the notion that the plaintiff’s liquor license was a mere privilege to be enjoyed at the pleasure of the Premier, but “a matter of vital importance” which was essential to Frank Roncarelli’s economic livelihood. A similar line of reasoning can be detected in celebrated decisions from other jurisdictions during the same period, most dramatically in Goldberg v Kelly (1970) when the United States Supreme Court held that welfare recipients were entitled to procedural due process under the 14th Amendment prior to the termination of their benefits.

Unsurprisingly, apex courts extended this same right to procedural fairness to public employees. Thus, in Ridge v Baldwin (1964) Lord Reid declared that the decision of the watch committee to dismiss chief constable Charles Ridge was “not a thing to be done lightly”, because it deprived him of his economic livelihood, damaged his professional reputation, and jeopardized his pension benefits as he was nearing the end of a 33-year career in the public service. Therefore, in Lord Reid’s opinion Ridge retained a legally protected interest in maintaining his employment, one which demanded a modicum of natural justice as in cases concerning property rights or the revocation of someone’s professional status. Therefore, he concluded that the governing principles were not to be drawn from the common law regarding “master and servant” nor cases regarding “offices at pleasure”, which would have enabled the watch committee to dismiss Ridge for any reason or no reason at all. Instead, he held that the decision was governed by “an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation.”

Fifteen years later, Laskin CJ cited Ridge as authority for the proposition that a probationary officer was entitled to a hearing at common law. Because the consequences of the decision to terminate Arthur Nicholson’s employment were “serious”, Laskin CJ held that “the old common law rule, deriving much of its force from Crown law, that a person engaged as an officer holder at pleasure may be put out without reason or prior notice ought itself to be re-examined.” In 1980, William Wade lauded Ridge v Baldwin in his Hamlyn Lectures as a constitutional fundamental, saying that “the courts once again accept, as they had always done except in their period of amnesia, that part of their duty was to require public authorities to respect certain basic rules of fairness in exercising power over the citizen.”  

While the majority opinion in Dunsmuir pays tribute to fundamental principles, that commitment evaporates when it applies them to the facts at hand. When Bastarache and LeBel JJ declare that “[t]he function of judicial review is…to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes”, they echo the principle of legality as articulated in cases like Roncarelli, Goldberg v Kelly, Ridge v Baldwin, and Nicholson. It is this same commitment to fairness which led the Adjudicator to conclude that Dunsmuir, like Ridge and Nicholson, was entitled to a pre-termination hearing of some sort; and it was this same commitment to reasonable justification that led the Adjudicator to conclude that s 100.1(2) of the Public Service Labour Relations Act, which provided non-unionized public employees the right to file a “grievance with respect to discharge, suspension or financial penalty”, entitled him to inquire into the employer’s reasons for the dismissal.

Despite that affirmation, the majority opinion concludes that “in the specific context of dismissal from public employment, disputes should be viewed through the lens of contract law rather than public law.” More surprisingly, the Court held that even though the Adjudicator’s decision was entitled to deference, the decision was unreasonable because the adjudicator had interpreted the PSLRA as allowing him “to inquire into the reasons for discharge where the employer had the right not to provide or even have such reasons”. Therefore the Adjudicator’s decision, in the Court’s estimation, “was fundamentally inconsistent with the employment contract and, thus, fatally flawed.”

In short, the juxtaposition between the statements of principle at the outset of decision and the application of those principles to the facts makes Dunsmuir a peculiar case from a theoretical perspective. Despite affirming the role of fairness and reasonableness as safeguards against arbitrary administrative decisions, the decision resurrects the notion that public employment (at least for those who are not Crown ministers or judges) is a privilege which can be terminated for any reason or no reason at all so long as employees are provided with reasonable notice. To rephrase the famous analogy in Lord Greene’s opinion in Associated Provincial Picture Houses, Ltd v Wednesbury, the upshot seems to be that a public school board really can dismiss a red-haired school teacher just because she has red hair, so long as it supplies her with pro forma reasons for her dismissal and adequate severance. But to require a public employer to afford some sort of pre-termination hearing well… that’s just unreasonable.

Anti-Bullying Law Struck Down

Last week, the Supreme Court of Nova Scotia struck down the province’s recently-enacted anti-cyber-bullying legislation, the Cyber-Safety Act. In Crouch v. Snell, 2015 NSSC 340, Justice McDougall holds that the Act both infringed the freedom of expression protected by s. 2(b) of the Canadian Charter of Rights and Freedoms, and made possible deprivations of liberty inconsistent with the principles of fundamental justice, contrary to s. 7 of the Charter. In this post, I summarize Justice McDougall’s reasons. (At great length, I am afraid, partly because it is important to explain the somewhat complicated legislation at issue, and mostly because the opinion covers a lot of constitutional ground.) I will comment separately.

Although laws against cyber-bullying are often justified by the need to protect young persons (especially children) from attacks and harassment by their peers, the parties in Crouch were adults, former partners in a technology start up who had had a falling out. Mr. Crouch alleged that “Mr. Snell began a ‘smear campaign’ against him on social media.” [22] Mr. Crouch eventually responded by applying for a “protection order” under the Cyber-Safety Act.

The Act, whose stated “purpose … is to provide safer communities by creating administrative and court processes that can be used to address and prevent cyberbullying,” (s. 2) makes it possible for persons who consider that they are being the victims of cyber-bullying (or for their parents and police officers, if they are minors) to apply for an order that can include prohibitions against its target communicating with or about the applicant, or using specified electronic services or devices. The Act defines cyberbullying as

any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social net works, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably [to] be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includ[ing] assisting or encouraging such communication in any way. (Par. 3(1)(b))

While some earlier cases read this definition as including requirement of malice into this definition, Justice McDougall considers that it included not only actions that had a “culpable intent” but also “conduct where harm was not intended, but ought reasonably to have been expected.”[80]

The applications are made “without notice to the respondent.” (Subs. 5(1)) If “the justice determines, on a balance of probabilities, that … the respondent engaged in cyberbullying of the subject; and … there are reasonable grounds to believe that the respondent will engage in cyberbullying of the subject in the future,” (s. 8) he or she can issue a “protection order.” Once an order is granted by the justice of the peace, it must be served on its target. A copy is forwarded to the Supreme Court, where a judge must review the order and confirm it (with or without amendment) if he or she “is satisfied that there was sufficient evidence … to support the making of the order.” (Subs. 12(2)) If the judge is not so satisfied, he or she must “direct a hearing of the matter in whole or in part,” (Subs. 12(3)) at which point the target of the order as well as the applicant are notified and can be heard.

Mr. Crouch’s application resulted in a protection order being granted by a justice of the peace. Reviewing it, Justice McDougall finds that some of Mr. Crouch’s allegations were unsupported by any evidence; indeed, in applying for the protection order, Mr. Crouch misrepresented a perfectly innocent statement made by Mr. Snell as a threat by taking it out of the context in which it had been made. Nevertheless, there was enough evidence supporting Mr. Crouch’s complaint for Justice McDougall to confirm, in somewhat revised form, the protection order that prohibited Mr. Snell “from directly or indirectly communicating with” or “about” Mr. Crouch, [23] and ordering him to remove any social media postings that referred to Mr. Crouch explicitly or “that might reasonably lead one to conclude that they refer to” him. [73] This confirmation was subject to a ruling on the Cyber-Safety Act‘s constitutionality, which Mr. Snell challenged.

His first argument was that the Act infringed his freedom of expression. Remarkably, the government was not content to argue that the infringement was justified under s. 1 of the Charter, and actually claimed that there was no infringement at all, “because communications that come within the definition of ‘cyberbullying’ are, due to their malicious and hurtful nature, low-value communications that do not accord with the values sought to be protected under s. 2(b).” [101] Justice McDougall rejects this argument, since the Supreme Court has consistently held that “[t]he only type of expression that receives no Charter protection is violent expression.” [102] In finding that both the purpose and the effect of the Act infringed freedom of expression, Justice McDougall cites Justice Moir’s comments in Self v. Baha’i, 2015 NSSC 94, at par. 25 :

[a] neighbour who calls to warn that smoke is coming from your upstairs windows causes fear. A lawyer who sends a demand letter by fax or e-mail causes intimidation. I expect Bob Dylan caused humiliation to P.F. Sloan when he released “Positively 4th Street”, just as a local on-line newspaper causes humiliation when it reports that someone has been charged with a vile offence. Each is a cyberbully, according to the literal meaning of the definitions, no matter the good intentions of the neighbour, the just demand of the lawyer, or the truthfulness of Mr. Dylan or the newspaper.

(Self was the case where the judge read a requirement of malice into the definition of cyber-bullying. There had, however, been no constitutional challenge to the Cyber-Safety Act there. Incidentally, Self also arose from a business dispute.)

The more difficult issue, as usual in freedom of expression cases, is whether the infringement is a “reasonable limit[] prescribed by law that can be demonstrably justified in a free and democratic society,” as section 1 of the Charter requires. In the opinion of Justice McDougall, the Cyber-Safety Act fails not only the Oakes test for justifying restrictions on rights, but also the requirement that such restrictions be “prescribed by law.”

Mr. Snell argued that the definition of cyber-bullying in the Cyber-Safety Act was too vague to count as “prescribed by law.” Justice McDougall considers that the definition “is sufficiently clear to delineate a risk zone. It provides an intelligible standard” [129] for legal debate. However, in his view, the same cannot be said of the requirement in section 8 of the Act that there be “reasonable grounds to believe that the respondent will engage in cyberbullying of the subject in the future.” Justice McDougall finds that “[t]he Act provides no guidance on what kinds of evidence and considerations might be relevant here [and thus] no standard so as to avoid arbitrary decision-making.” [130] While risk of re-offending is assessed in criminal sentencing decisions, this is done on the basis of evidence, rather than on an ex-parte application that may include only limited evidence of past, and no indication of future, conduct. Here, “[t]he Legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances,” which is likely to result in “arbitrary and discriminatory applications.” [137]

Although this should be enough to dispose of the case, Justice McDougall nevertheless goes on to put the Cyber-Safety Act to the Oakes test. He concludes

that the objectives of the Act—to create efficient and cost-effective administrative and court processes to address cyberbullying, in order to protect Nova Scotians from undue harm to their reputation and their mental well-being—is [sic] pressing and substantial. [147]

However, he finds that the ex-parte nature of the process created by the Cyber-Safety Act is not rationally connected to these objectives. While proceeding without notice to the respondent may be necessary when the applicant does not know who is cyber-bullying him or her, or in emergencies, the Act requires applications to be ex-parte in every case. It thus “does not specifically address a targeted mischief.” [158]

Nor is the Act, in Justice McDougall’s view, minimally impairing of the freedom of expression. Indeed, he deems “the Cyber-safety Act, and the definition of cyberbullying in particular, … a colossal failure” in that it “unnecessarily catches material that has little or nothing to do with the prevention of cyberbullying.” [165] It applies to “both private and public communications,” [165] provides no defences ― not even truth or absence of ill-will ―, and does not require “proof of harm.” [165]

Finally, Justice McDougall is of the opinion that the positive effects of the Cyber-Safety Act ― of which there is no evidence but whose existence he seems willing to “presume[]” [173] ― do not outweigh the deleterious ones. Once again, the scope of the definition of cyber-bullying is the issue: “[i]t is clear that many types of expression that go to the core of freedom of expression values might be caught” [175] by the statute.

In addition to the argument based on freedom of expression, Mr. Snell raised the issue of s. 7 of the Charter, and Justice McDougall addresses it too. The Cyber-Safety Act engages the liberty interest because the penalties for not complying with a “protection order” can include imprisonment. In Justice McDougall’s view, this potential interference with liberty is not in accordance with the principles of fundamental justice ― quite a few of them, actually. The ex-parte nature of the process the Act sets up is arbitrary, since as Justice McDougall already found, it lacks a rational connection with its objective. The statutory definition of cyber-bullying is overbroad, for the same reason it is not minimally impairing of the freedom of expression. The “requirement that the respondent be deemed likely to engage in cyberbullying in the future is incredibly vague.” [197] Moreover, “the protection order procedure set out in the Cyber-safety Act is not procedurally fair,” due mostly to “the failure to provide a respondent whose identity is known or easily ascertainable with notice of and the opportunity to participate in the initial protection order hearing.” [203] Finally, Justice McDougall adopts Justice Wilson’s suggestion in R. v. Morgentaler, [1988] 1 S.C.R. 30, that a deprivation of a s. 7 right that is also an infringement of another Charter right is not in accordance with the principles of fundamental justice. The Cyber-Safety Act infringes the freedom of expression, which “weighs heavily against a finding that the impugned law accords with the principles of fundamental justice.” [204] As with the infringement of the freedom expression, that of s. 7 is not justified under section 1 of the Charter.

As a result, Justice McDougall declares the Cyber-Safety Act unconstitutional. The statutory scheme is too dependent on the over-inclusive definition of cyber-bullying for alternatives such as reading in or severing some provisions to be workable. The declaration of unconstitutionality is to take effect immediately, because “[t]o temporarily suspend [it] would be to condone further infringements of Charter-protected rights and freedoms.” [220] Besides, the victims of cyber-bullying still “have the usual—albeit imperfect—civil and criminal avenues available to them.” [220]

I believe that this is the right outcome. However, Justice McDougall’s reasons are not altogether satisfactory. More on that soon.

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.