Administrative Law (and the same might be said of Constitutional Law) is for losers. People who receive decisions from government that they like do not challenge them in Court. Principles of fairness and reasonableness are developed in the context of procedural fairness to losers in public decision-making - the student expelled from school, the professional denied a license to practice, the company fined for regulatory infractions, the vanquished in a labour dispute. This is, in some respects, as it ought to be. Persuading losers that an adverse decision was fair and reasonable is one of the central characteristics of the rule of law. But seen from another perspective, that of the integrity of public decision-making, whether a decision is positive or negative for a particular party is beside the point.
For example, since Roncarelli v. Duplessis, the rule of law in Canada has come to mean protection from arbitrary public decisions and public decisions based on ulterior and improper motives and public decisions made in bad faith. Such decisions might as easily be positive determinations grounded in corruption and favourtism as negative determinations which are punitive or discriminatory. Is the decision to grant a license based on the political stripe of an applicant any less offensive than the decision to deny a license on the same basis?
The problem, of course, is that legal accountability for decision-making is complaint based. Somebody has to take the initiative and bring an impugned decision to court. Only in the rarest occasion will someone challenge a positive decision. One such example is the eclectic case of Harris v. Canada, [2000] 4 F.C. 37 (C.A.). In this case, the Federal Court of Appeal accepted that a member of a public interest group had standing to launch a declaratory action on behalf of a class including all taxpayers in Canada alleging, inter alia, that the Minister of Revenue allowed a wealthy family trust to improperly defer certain tax liability because the trust was a major donor to the Minister's political party. This was a challenge by a third party to a positive state decision but the argument was still framed as a loser's challenge - in this case, it was all the taxpayers who lost out on the foregone tax revenue from the family trust (which could have been available to buy public goods and services for all Caandians). Perhaps this is the conceptual move we need - to see someone's win (if arbitrary or improper) as a loss to us all (although not necessarily a loss just to taxpayers..).
The search for accountability in public decision-making in the category of the "unjust winner" is the principle which animated the Inquiry into the Sponsorship Program headed by Justice John Gomery (the Gomery Inquiry). The first part of the Gomery Inquiry detailed an intricate kickback scheme in which public decisions taken in favour of certain advertising firms for sponsorship contracts in the late 1990s led to public funds being funnelled through those firms (which occasionally did little or no work for the contracts) to the Liberal Party through cash donations from the ad firms). For the reasons outlined above, the Sponsorship Scandal could only have resulted in an administrative law challenge only if one of the ad firms who lost a contract challenged that negative decision. Is vigilence over the rule of law in only some public decision-making sufficient? As it was, it came to light and to the centre stage of the most (in)famous public inquiry in Canadian history as a result, once again, of busybody third parties - both internal whistle-blowers and the Auditor General of Canada.
In February of 2006, the Gomery Inquiry issued part two of its report entitled "Restoring Accountability" with a host of recommendations for instilling a rule of law and accountability culture in the federal public service. In a background paper for the Commission I argued for recognition of a constitutional principle of bureaucratic independence. Such a principle is founded on the premise that public servants owe a series of free-standing constitutional obligations (for example, to uphold the rule of law and preserve the non-partisan nature of the public service) which represent higher obligations than the duty of loyalty to the government of the day. The result of this principle and this premise, in my view, would be to open up an entirely new question for administrative law - that is, how is the executive branch to discharge its obligations to ensure the rule of law in ALL decisions (whether positive or negative to affected parties). Interpreting and applying the rule of law, in other words, must be a daily aspect of executive decision-making, not just a judicial response to an unhappy litigant who decides to roll the dice in court. Responding to the challenge of legal accountability from the ground up, outside the framework of the courtroom and judicial oversight, will be, I believe, the bold, new frontier of administrative law.
The rule of law, at the end of the day, is too important to leave to the losers...
Lorne Sossin