Legal Process

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.

There have been a considerable number of allegations of late that the Federal Government has been improperly interfering with independent Federal Agencies, Board and Commissions (or, for short, Federal ABCs). From a dispute about veiled women voting to a dispute about shutting down a nuclear facility, both the diversity and the importance of independent administrative ABCs has been on display. But just how independent are they? When we refer to a body as at “arm’s length” from the Government, does that imply it still may be within the Government’s grasp. Below I suggest these administrative bodies may not be as independent as we think they are, but that their vulnerability to government interference is precisely what is intensifying public scrutiny of government and enhancing public support for administrative justice.

On June 4, 2008, a Roundtable was held at the Faculty of Law, University of Toronto on the Dunsmuir v. New Brunswick decision from the Supreme Court of Canada (handed down in March of 2008).  The aim of the Roundtable was to explore the implications of this decision for the development of Administrative Law, and in particular the Court's wide-ranging discussion of the standard of judicial review of administrative action, deference, and the applicability of procedural fairness to public office holders.

The background material for the Roundtable, including the Dunsmuir case, the facta filed at the Supreme Court, and some early commentaries are available for download at: http://www.law.utoronto.ca/conferences/dunsmuir.html.

Below, we have prepared a summary (in PDF format) of the themes, ideas and arguments raised during the Roundtable in the hopes that it will serve as a catalyst for further discussion and debate.  We invite comments on any aspect of the discussion which might interest readers of this blog.

• Summary of the Roundtable on Dunsmuir (PDF)

This commentary was first published in the Toronto Star on November 1, 2008.

The days and weeks following a national election are invariably a time of reflection and recrimination.

The Liberals in particular are in for a period of intense soul-searching as they begin yet another leadership campaign.

But it is not only Liberals who should reflect on the recent election.

All Canadians should be disturbed by the results because once again we have gone to the polls and ended up with a government that almost two-thirds of the country opposes.

The flaws in this election go way beyond party politics and political egos. The way we count votes and award seats in the House of Commons, it turns out, deserves much more of the blame.

In a commentary in the National Post, Professors Lorraine Weinrib and Lorne Sossin argue that the Governor-General's decision-making should be public and transparent in situations such as the recent request by the Prime Minister to prorogue Parliament ("Canada's constitutional 'black box'," December 11, 2008).

Last Thursday, Governor-General Michaelle Jean granted a request from Prime Minister Stephen Harper to prorogue Parliament until late-January. She thus protected the Conservative government from a confidence vote that would have likely toppled the minority government, and perhaps prompted her to invite a Liberal-NDP coalition, supported by the Bloc Quebecois, to form a government. We would like to be in a position to share with you the arguments that the Prime Minister submitted to the Governor-General and her reasons for accepting them.