Creatures of Statute: Born Free, Bound in Chains. A Unifying Principle of Administrative Law?

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Thursday, April 23, 2020
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Imagine. You are a dog. A small dog with big attitude. You are out for a walk in the park, minding your own business. You head for the spot you always go for. As you run, all of a sudden SNAP! The leash becomes taught, the collar tightens, and you can’t breathe. You fall to the ground, stunned. Just yesterday you were able to go that far. Now someone is holding you back.

When you get up, and turn around, you see two groups of people fighting over the handle of the leash. One group is dressed in black gowns, with white tabs. The other is in business attire, each one accompanied by a young aide carrying a briefcase. Some of the aides are boys in short pants. Then you see people are gathering. Members of the public looking on. Wondering what is happening, and why this seemingly incomprehensible struggle is taking up so much public space, attention and resources.

Then you wake up. You are back at your desk. Realizing that, you need to get back to writing the decision that is already overdue. So, there it is. Life in the ever-changing world of administrative law. Full of good intentions, or at least presumed intentionality. Sometimes purposive and pragmatic, other times contextual and functional. Sometimes demanding cogent reasons, other times reasonable cogency will have to do.

In this year’s CIAJ National Roundtable on Administrative Law, we will explore whether there are unifying principles of administrative law. Is it a question worth asking? Is it something that could ever be achieved? And if it is, Qui Bono?

Putting the pieces back together again: The Vavilov framework

“When I use a word, in means exactly what I intend it to mean, nothing more, nothing less,” (Humpty Dumpty: Alice Through the Looking Glass). Are we entering a new world of intentionality in reviews of tribunal decisions? Is it now simply what the legislature intended, through the use of magic words? Is it now all about the intention of the tribunal decision maker as expressed in its reasons? Does the decision in Vavilov really rest on a purely textual analysis as suggested by the minority? If so, what needs to be done to make it all work, and by whom? Professor Paul Daly will provide his insights and thoughts on the recent trilogy, and what it may mean for legislatures, legislative drafters, and the rest of us.

Expertise: Each according to their ability?

Some argue that the Vavilov decision marks a turning point, downgrading the importance of expertise for determining the standard of review. Indeed, others go so far as saying the decision undermines the long-established raison d’être of tribunals themselves. The majority of the Court disagreed, arguing that it remains the role and responsibility of the legislature to define the scope of a delegate’s jurisdiction on questions of fact, law and the Charter. While the minority warned that this view will create chaos, many jurisdictions have long had statutes that expressly set out the powers of particular tribunals, boards and commissions, including the power to decide Charter questions. In this session we explore models of statutes that seek to regulate the workings and mandates of administrative decision makers. What should be the basis for these statutes, and how far should a legislature go? Does regulation (or the lack thereof) impact independence? What responsibility does the executive have to ensure a tribunal, board or commission has the necessary expertise, resources and clarity of authority in order to fulfill their responsibilities to the public.”

Time is on my side—but should it be?

Justice delayed is justice denied. We always say this, but in the administrative justice field, it is a rule that is often honoured in its breach. Is it a matter of culture? Is it a matter of resources? Is it a matter of how we structure our processes? In this session we examine the limits and possibilities of trying to achieve timely and fair dispute resolution, including the role of the courts, governments and tribunals themselves.

The long (or short) arm of the law

Access to Justice, the Charter, the people’s law. What kinds of issues should be subject to judicial review and oversight? If certain decisions are outside the law, does it mean that certain people are above the law? In a world where so many of our relationships and transactions are governed by private contract and dispute resolution mechanisms, where do the fundamental principles of natural justice, procedural fairness and human rights fit in? How will they get addressed? In this panel we explore the shifting sands of judicial reach, where it has been extended, and where it has stopped. Has the claim of immunity from judicial oversight created a realm of public concerns that are beyond effective public contestation?

Towards a unified theory of administrative law

In Ocean Port the Supreme Court said that administrative decision makers span the constitutional divide between the Courts and the Executive. If this is true, does searching for unifying principles of administrative law make sense? Perhaps natural justice? But even here, in Baker the Court held that the required rules of procedural fairness may be fashioned to fit the circumstances. Access to Justice? Maybe, but for whom, and how much?

CIAJ’s 2020 National Roundtable on Administrative Law will allow us to address these questions, hear from various perspectives, reflect on the day’s discussions, and look forward to what may bring greater coherence to an area of the law whose principles remain elusive.

Michael Gottheil is a Co-Chair and speaker at CIAJ’s 2020 National Roundtable on Administrative Law, which will be held online on May 29, 2020.

About the author

Michael Gottheil

Michael Gottheil

Chief of the Commission and Tribunals, Alberta Human Rights Commission