Administrative Law

Administrative Law Markus Dubber

Shell v. Vancouver (SCC ’94):Municipalities/City Councils • Vancouver City Council (6-5), having “measured the moral character of its business relations,” resolves to • “not do business” with Shell and • declare Vancouver “Shell free” until Shell stops doing business with Apartheid South Africa • Vancouver Charter 148. A by-law or resolution duly passed by the Council in the exercise of its powers, and in good faith, shall not be open to question in any Court, or be quashed, set aside, or declared invalid, either wholly or partly, on account of the unreasonableness or supposed unreasonableness of its provisions or any of them. 153. Except as otherwise provided by this or some other Act, the Council shall not have the power to grant to any person any special rights, franchise, privilege, immunity, or exception beyond such as all others in the like case are entitled to, unless the granting of the same has been authorized by a by-law requiring the assent of the electors. 189. The Council may provide for the good rule and government of the city. 199. The Council, in addition to the powers specifically allotted to it, shall have power to do all such things as are incidental or conducive to the exercise of the allotted powers.

The Lower Courts… • BC Supreme Ct (trial ct) • Shell picked as symbol • Apartheid in South Africa has nothing to do with “the business of the city of Vancouver” • City Council’s authority is limited to “the business of city of Vancouver” • Therefore, resolutions quashed as ultra vires • BC COA • Council’s commercial power is unlimited (exc. Charter) • Council “may decline, for any purpose whatsoever, to purchase goods and services from anyone whom it pleases to put, for political reasons, on its own collective blacklist” • Therefore, trial ct overturned

SCC: Sopinka (5) vs. McLachlin (4) • Sopinka • loser in Consolidated-Bathurst ‘90, winner here • Reviewability (ultra vires?) • Legislative vs. quasi-judicial vs. business/commercial • Limited relevance of classification • quasi-judicial (e.g., licenses, permits, zoning): duty of fairness • commercial: private law (tort, contract) • Irrelevance for purposes of reviewability • All actions, however classified, reviewable for jurisdiction--all power is delegated via statute (municipality “creature of statute”), which also defines the power’s scope—ultra vires • “only remedy is at the polls” cold comfort for minority • McLachlin agrees…but within limits… • Improper Purpose (ultra 1) • Unauthorized Discrimination (ultra 2)

Sopinka: Improper Purpose = • Roncarelli! • Shell = Roncarelli; Council = Duplessis • Martland, not Rand… (relationship to intent of liquor act) • Municipal power defined by municipal purpose • Purpose? • advancing city’s “health, welfare, safety and good government” • Charter: s. 189. The Council may provide for the good rule and government of the city. • Police • Relation to purpose? • No: matter “external (!) to the interests of the citizens” • “extraterritorial purpose” is “extraneous to the power of a municipality” • “beyond the boundaries of the City” • see Lewisham(UK Shell case) ∧ ∧ =

Sopinka: Unauthorized discrimination • Interpreting an Absence • Absence of explicit (specific) authority to discriminate • Conclusive: • Therefore, no authority to discriminate [Sopinka], or • Inconclusive: • Possibility of implied (general) authority [BC COA] • Absence of explicit prohibition to discriminate • Conclusive: • Therefore, authority to discriminate [BC COA], or • Inconclusive: • Possibility of prohibition if no explicit authorization [Sopinka] • Same issue: scope of general authority • Sopinka: extraneous to “promoting health, safety or welfare of the inhabitants of the City” • BC COA: not so [taken up by McLachlin…] • No need to address constitutional questions

McLachlin: Reviewability (of commercial acts, incl. purchasing) • Pro • Public nature of municipality’s commercial activity • Public funds, equal access, integrity, community values (!) • Municipalities “unlike private individuals, are statutory creations” • “statutory flavour” anyone? • Con • Private law (commercially, public body = “any private individual or corporation which seeks to contract with another party”) • Remember Dunsmuir? • The Pros have it! And so McLachlin continues…

McLachlin: Small r review, large R Respect • There is Reviewability, and then there is reviewability • McLachlin prefers the latter • Golden Middle: Judicial review of municipal decisions is necessary. It is important that municipalities not assume powers which have not been conferred on them, that they not violate civil liberties, that disputes between them and other statutory bodies be resolved, and that abuses of power are checked. On the other hand, it is important that the courts not unduly confine municipalities in the responsible exercise of the powers which the legislature has conferred on them. • Two approaches: • narrow construction, pro-interventionist (Sopinka) • Strict construction, only explicit specific authorization • more liberal, more generous and flexible, benevolent, deferential, broader (McLachlin) • “Public interest” matter for municipal council’s discretion • No interference absent “bad faith or absurdity” • Benevolent inquiry into benevolence…

McLachlin: Why small r review is preferable • sub rosa substitution; formal review hides substantive interference (CUPE redux) “Rather than confining themselves to rectification of clear excesses of authority, courts under the guise of vague doctrinal terms such as "irrelevant considerations", "improper purpose", "reasonableness", or "bad faith", have not infrequently arrogated to themselves a wide and sweeping power to substitute their views for those of the elected representatives of municipalities. … The result is that …, "despite the court's protestations to the contrary, they do, in fact, interfere with the wisdom which municipal councils exercise". • And some more (later on, @100), now naming names: As discussed earlier, scholars are critical of the frequency with which courts disguise an assessment for reasonableness in the cloak of a review for vires. On one view of my colleague's reasons, they do this very thing.Sopinka J. correctly states that the reasonableness of the Resolutions is not in issue, only the power of the City to pass them. Yet he goes on to hold that the Resolutions must fall because they are "based on matters external to the interests of the citizens of the municipality”. But that is the very question at stake.

Still more reasons • Respect • For democracy! (remember Andy Wells in NF Telephone?); whatever happened to expertise?; or is representativeness, electedness, a form of expertise? • Efficiency • Excessive (!) litigation • Autonomy… • Reality • The Modern City • Does so much more than in “rural age” (remember Laskin in Nicholson?) • “Excessive (!) judicial interference in the decisions of elected municipal councils may, as this case illustrates, have the effect of confining modern municipalities in the straightjackets of tradition.” • CUPE (again…) • The broader, more deferential approach to judicial intervention in the decisions of municipalities is more in keeping with the flexible, more deferential approach this Court has adopted in recent cases to the judicial review of administrative agencies. • Sensitivity to context and expertise… • “There can be little justification for holding decisions on the welfare of the citizens by municipal councillors to a higher standard of review than the decisions of non-elected (!)statutory boards and agencies.”

So, what is the test? • more liberal, (more) generous and flexible, benevolent, deferential, broader… • Analogy to judicial review of administrative tribunals: patent unreasonableness? • = “bad faith or some other abuse” • Post-Dunsmuir… • No(t yet); instead vague “clarity” … (shades of Dickson in CUPE): For the purposes of the present case, however, I find it sufficient to suggest that judicial review of municipal decisions should be confined to clear cases. The elected members of council are discharging a statutory duty. The right to exercise that duty freely and in accordance with the perceived wishes of the people they represent is vital to local democracy. Consequently, courts should be reluctant to interfere with the decisions of municipal councils. Judicial intervention is warranted only where a municipality's exercise of its powers is clearly ultra vires, or where council has run afoul of one of the other accepted limits on municipal power.

“Improper Purposes” • “Improper Purposes” inquiry is misleading, reflects intrusive attitude • No inquiry into motives • Exc. “bad faith”… • “duly elected” (again!); proof (Roncarelli…) • Anyway, no “improper purposes” here • Broad view of welfare (vs. Sopinka’s narrow one) • Includes “psychological welfare” (not warfare!) The term "welfare of the citizens", it seems to me, is capable of embracing not only their immediate needs, but also the psychological welfare of the citizens as members of community who have an interest in expressing their identity as a community. … This suggests that City Council may properly take measures related to fostering and maintaining this sense of community identity and pride. Among such measures may be found community expression of disapproval or approval of different types of conduct, wherever it is found. (etc etc etc) • Why (the broad view of municipal purposes)? • In general: CUPE once more: courts “should not be quick to substitute”… • In particular: Vancouver Charter (section 189…) • Reality: “growing sophistication and stature of a contemporary city such as Vancouver” (and that was before the Olympics!) • Territorial limits are so 19th century! • Other cities “interpret their mandate in similar terms” • 30 other cities boycott Shell… • Caselaw… • Umm, what about Lewisham? Distinguishable (UK cities have fewer powers; different issue (scope of Race Relations Act, not of municipal power); punishment…

McLachlin: Unauthorized Discrimination • Was discrimination authorized? • Granting licenses, taxing, municipal privileges • Discrimination requires express authority… • Commercial/business • Implied authority will do just fine • That authority appears in general police power delegation: “promoting the health, safety or welfare” of city inhabitants” • Once again, broad vs. narrow, McLachlin vs. Sopinka • Roncarelli? No problem: within the scope of delegated power, though broadly conceived… • Constution (en passant) • No problem: • No interference with federal commerce power • Resolutions “in pith and substance” municipal, not international • Freedom of opinion non-issue • Either corporation doesn’t have freedom of opinion or, even if it does, it’s “really complaining about unequal treatment” under s. 15 (vis-à-vis Chevron): “That case, however, was not made, and need not be considered.”…

Baker v. Canada ‘99 (Take 2: Substance): The Minister (aka Officer Lorenz) • Mavis Baker, “worked illegally” ‘81-’92, 4 kids, ‘92: paranoid schizophrenic, 1 yr mental health centre; 6-yr-o twins w/ father; 10- and 3-yo foster care • ‘93: out-patient; landing application H&C; ‘94: denied by letter, w/o reasons; case history notes produced upon request

PC is unemployed - on Welfare. No income shown - no assets. Has four Cdn.-born children- four other children in Jamaica- HAS A TOTAL OF EIGHT CHILDREN Says only two children are in her "direct custody". (No info on who has ghe [sic] other two). There is nothing for her in Jamaica - hasn't been there in a long time - no longer close to her children there - no jobs there - she has no skills other than as a domestic - children would suffer - can't take them with her and can't leave them with anyone here. Says has suffered from a mental disorder since '81 - is now an outpatient and is improving. If sent back will have a relapse. Letter from Children's Aid - they say PC has been diagnosed as a paranoid schizophrenic. - children would suf-fer if returned - Letter of Aug. '93 from psychiatrist from Ont. Govm't. Says PC had post-partum psychosis and had a brief epi-sode of psychosis in Jam. when was 25 yrs. old. Is now an out-patient and is doing relatively well - deportation would be an extremely stressful experience. Lawyer says PS [sic] is sole caregiver and single parent of two Cdn born children. Pc's mental condition would suffer a setback if she is deported etc. This case is a catastrophy [sic]. It is also an indictment of our "system" that the client came as a visitor in Aug. '81, was not ordered deported until Dec. '92 and in APRIL '94 IS STILL HERE! The PC is a paranoid schizophrenic and on welfare. She has no qualifications other than as a domestic. She has FOUR CHILDREN IN JAMAICA AND ANOTHER FOUR BORN HERE. She will, of course, be a tremendous strain on our social welfare systems for (probably) the rest of her life. There are no H&C factors other than her FOUR CANADIAN-BORN CHILDREN. Do we let her stay because of that? I am of the opinion that Canada can no longer afford this kind of generosity. However, because of the circumstances involved, there is a potential for adverse publicity. I recommend refusal but you may wish to clear this with someone at Region. There is also a potential for violence - see charge of" assault with a weapon".

Immigration Act, R.S.C., 1985, c. I-2 82.1 (1) An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court — Trial Division. 83. (1) A judgment of the Federal Court — Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court — Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question. 114. (2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations. Immigration Regulations, 1978 2.1 The Minister is hereby authorized to exempt any person from any regulation made under subsection 114(1) of the Act or otherwise facilitate the admission to Canada of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.

Proper Review Attitude • “Discretionary” vs. “interpretation of law” (non-discretionary!) • More vs. less deference • Discretion: “where the law does not dictate a specific outcome, or whether the decision-maker is given a choice of options”!!!! • Post-Shell: no “rigid” dichotomy discretionary vs. non-discretionary • Then: if discretionary, then review only for bad faith; improper purpose; irrelevant considerations • Now: pragmatic & functional • Spectrum: • Patent unreasonableness, reasonableness simpliciter, correctness • Not “reducing the level of deference” (see Dunsmuir) • But: • Discretion must be exercised in a manner that is within a reasonable interpretation of the margin of manouevre contemplated by the legislature, in accordance with the principles of the rule of law (Roncarelliv. Duplessis, [1959] S.C.R. 121 (S.C.C.)), in line with general principles of administrative law governing the exercise of discretion, and consistent with the Charter. [53] • Discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter. [56]

Standard of Review • 1. Privative clause (-) • No • Provision for appeal (tho’ limited to certified question) • 2. Expertise (+) • Plenty (vis-à-vis courts): Minister (Lorenz?) • 3. Purpose (=) • Choice; “open-textured” principles; “exemption,” not rule • But: application to specific individual vs. interest balancing (adjudicative vs. legislative/policy-making) • 4. Nature of question • More fact than law (+) • Goldilocksian middle: not correctness, not patent unreasonableness—reasonableness simpliciter (+) • What now (after Dunsmuir) that Golden middle option is gone?

The Standard Applied • Is decision supported by reasons that can stand up to “somewhat probing examination”? • What reasons? Field notes? • In fact? Or in theory? • Dyzenhaus: R-E-S-P-E-C-T: “respectful attention to the reasons offered or which could be offered” • No: • “inconsistent with the values underlying the grant of discretion” • R-E-S-P-E-C-T: decide “in a manner respectful of H&C considerations” • “Children’s rights, and attention to their interest, are central H&C values in Canadian society” • Evidence • Act • “facilitate reunion” • International Law • Human rights values “inform the contextual approach to stat int” • Ministerial Guidelines • Hypothetical reasonable person • Reasons do not indicate the decision “was made in a manner which was alive, attentive, or [and?] sensitive to the interests of Ms. Baker’s children”

Suresh ‘02 • Suresh: Convention refugee (Sri Lanka) • generally, can’t be returned “to a country where the person’s life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion (53(1) Immigration Act) • Deport on security grounds • 40.1 security certificate: inadmissible on security grounds; arrested • Terrorism (Tamil Tigers) • Fed Ct: 50-day hearing (certificate upheld) • Deportation hearing • Membership in terrorist organizastion • Minister: intent to declare Suresh danger to the security of Canada under 53(1)(b) (permitting deportation of refugee despite threat to life or freedom); Suresh submits written arguments and evidence (of torture) • Immigration officer (Gautier) recommends declaration (insufficient H&C considerations); Minister issues declaration and order deportation • No copy of Gautier’s memo; no opportunity to respond orally or in writing; no reason given, nor required

Immigration Act, R.S.C. 1985, c. I-2 19.(1) No person shall be granted admission who is a member of any of the following classes: (e) persons who there are reasonable grounds to believe (iv) are members of an organization that there are reasonable grounds to believe will (C) engage in terrorism; (f) persons who there are reasonable grounds to believe (ii) have engaged in terrorism, or (iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in (B) terrorism, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest; 53.(1) [N]person who is determined under this Act or the regulations to be a Convention refugee … shall be removed from Canada to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless (b) the person is a member of an inadmissible class described in paragraph 19(1)(e), (f), … and the Minister is of the opinion that the person constitutes a danger to the security of Canada;

Issues (admin only, if you please!) • Substance • Standard of review • (2) Suresh's presence in Canada constitutes a danger to national security • (3) Suresh does not face a substantial risk of torture upon return to Sri Lanka • Dictum: “assist courts in future ministerial review” • Procedure • Procedural fairness/natural justice • Admin/con law (Escherian dialectic…)

Standard of Review • Factual determination • 1. Danger? 2. Torture? • If yes to 2., then constitutional question whether deportation would “shock the Canadian conscience”… [which it would, EXCEPT maybe not] • (Pushpanathan) “test” re: standard • 1. privative clause (=?) • No private clause, but only limited appeal (by leave) (same § as Baker) • 2. expertise (+) • Yes, Minister • Special information and expertise… • 3. purpose of legislation (+) • Balance interests (danger to Canada, to individual) • 4. nature of the question (+) • Fact-based/contextual • Therefore: patent unreasonableness (+++) • “it follows (!) that the weighing of relevant factors is not the function of a court reviewing the exercise of ministerial discretion”

What about Baker, then? • Baker: reasonableness simpliciter • “nuanced approach” to standard of review choice • “special situations” where less deferential standard is appropriate • E.g., in Baker: “self-imposed ministerial guidelines”… • Baker: “weight” of factors • “It is the Minister who was obliged to give proper weight to the relevant factors and none other. Baker does not authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process, but draws on an established line of cases concerning the failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors…” • Really? “alive, attentive, or [and?] sensitive” (whether vs. how to consider children’s interest) • Law vs. (Wo)men: • “If the Minister has considered the appropriate factors in conformity with [legislative/constitutional] constraints, the court must uphold her decision. It cannot set it aside even if it would have weighed the factors differently.” • More Baker damage control • Really, no reweighing, we mean it, really: “The court may NOT reweigh the factors considered by the Minister, but may intervene if the decision is not supported by the evidence or fails to consider the appropriate factors.”

Procedure • Admin law/con law • More Baker: “the common law approach to procedural fairness articulated by L’Heureux-Dubé in Baker…” • “The principles of fundamental justice of which s. 7 speaks, though not identical to the duty of fairness elucidated in Baker, are the same principles underlying that duty…. Insofar as procedural rights are concerned, the common law doctrine summarized in Baker properly recognizes the ingredients of fundamental justice…. At the end of the day, the common law is not constitutionalized; it is used to inform the constitutional principles that apply to this case.” ... • So, Baker factors it is then…

Baker Factors… (1) the nature of the decision made and the procedures followed in making it, that is, “the closeness of the administrative process to the judicial process,” Serious yet discretional: = (2) the role of the particular decision within the statutory scheme, No procedural protection (unlike 40.1 (security certificate); 50-day hearing…) + (3) the importance of the decision to the individual affected, Pretty darn important + (4) the legitimate expectations of the person challenging the decision where undertakings were made concerning the procedure to be followed, Convention against torture prohibits deportation if “substantial grounds” to expect torture + (5) the choice of procedure made by the agency itself Gimme: - - This list of factors is non-exhaustive in determining the common law duty of fairness (but of course!) - Result: + - Therefore, fundamental justice (s. 7) requires some procedure (not necessarily “full oral hearing or complete judicial process” but more than nothing “more than Suresh received”… Right to be informed of case; Opportunity to respond; Opportunity to challenge; Written reasons - Process triggered upon prima facie showing “that there maybe a risk of torture”

Khosa ‘08 • IAD: serious crime deportation, no H&C • Landed immigrant (aka PR); “street racing” (criminal negligence causing death): 2 years – 1 day; house arrest, driving ban, community service • Fed Ct: patent unreasonableness; pass • FCA: reasonableness simpliciter; fail • SCC: • reasonableness (Dunsmuir) • Binnie: pass • Fish: fail • statutory standard • Rothstein (and Deschamps): pass • ALL CLEAR!

Federal Courts Act s. 18.1 (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law.

Khosa ‘08 • Binnie • Dunsmuir: yes • standard standard: reasonableness • Presumption not rebutted… • standard: reasonable (pass) • Presumption not rebutted… • Owen: legislature can too displace common law standard of review of analysis (w/in constitutional limits…); intent? • E.g., BC Admin Tribunals Act: patent unreasonableness, but interpreted/applied in light of Dunsmuir • Intent to displace? No • Statute covers only “grounds” of appeal, not “standard” of review • Therefore: Dunsmuir + Pushpanathanfactors …  reasonableness

Khosa ‘08 • Rothstein (Deschamps, too) • Dunsmuir: no • Statutory standard • Perverse/capricious, w/o regard to evidence? pass • See Binnie (some bits) • Owen: legislature can too displace common law standard of review of analysis (w/in constitutional limits…); intent? • Intent to displace? but YES! • Out-deferencingDunsmuir? Out-flanking (limiting) Dunsmuir? Binnie as Dunsmuir protector? • Fish • See Binnie (other bits) • standard standard: reasonableness • standard: but FAIL

Administrative Law