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THE SIX-MINUTE Administrative Lawyer 2017 THE SIX-MINUTE Administrative Lawyer 2017 chairs Jeff Cowan WeirFoulds LLP Margaret Leighton Counsel to the Executive Chair/Manager of Legal Services Social Justice Tribunals of Ontario March 1, 2017 *CLE17-0020801-A-PUB* DISCLAIMER: This work appears as part of The Law Society of Upper Canada’s initiatives in Continuing Professional Development (CPD). It provides information and various opinions to help legal professionals maintain and enhance their competence. It does not, however, represent or embody any official position of, or statement by, the Society, except where specifically indicated; nor does it attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein should be used prudently, as nothing in the work relieves readers of their responsibility to assess the material in light of their own professional experience. No warranty is made with regards to this work. The Society can accept no responsibility for any errors or omissions, and expressly disclaims any such responsibility. © 2017 All Rights Reserved This compilation of collective works is copyrighted by The Law Society of Upper Canada. The individual documents remain the property of the original authors or their assignees. The Law Society of Upper Canada 130 Queen Street West, Toronto, ON M5H 2N6 Phone: 416-947-3315 or 1-800-668-7380 Ext. 3315 Fax: 416-947-3991 E-mail: [email protected] www.lsuc.on.ca Library and Archives Canada Cataloguing in Publication The Six-Minute Administrative Lawyer 2017 ISBN 978-1-77094-809-0 (Hardcopy) ISBN 978-1-77094-810-6 (PDF) THE SIX-MINUTE Administrative Lawyer 2017 Chairs: Jeff Cowan WeirFoulds LLP Margaret Leighton Counsel to the Executive Chair/Manager of Legal Services Social Justice Tribunals Ontario March 1, 2017 9:00 a.m. to 12:00 p.m. Total CPD Hours = 2 h 30 m Substantive + 30 m Professionalism The Law Society of Upper Canada 130 Queen Street West Toronto, ON SKU: CLE17-0020801 Agenda 9:00 a.m. – 9:05 a.m. Welcome and Opening Remarks Jeff Cowan, WeirFoulds LLP Margaret Leighton, Counsel to the Executive Chair/Manager of Legal Services, Social Justice Tribunals Ontario 1 9:05 a.m. – 9:15 a.m. Practices, Procedures and Preliminary Objections in Judicial Review The Honourable David Stratas, Federal Court of Appeal 9:15 a.m. – 9:40 a.m. Rebottling Old Wine: Modifications of Procedural Law in Response to Substantive Changes in Standard of Review Dr. Paul Daly, Senior Lecturer in Public Law, University of Cambridge and Derek Bowett Fellow in Law, Queens' College (Vidyo Presentation - UK) 9:40 a.m. – 9:48 a.m. Standards of Review of Administrative Decision-makers Nicholas McHaffie, Stikeman Elliott LLP 9:48 a.m. – 10:03 a.m. Question and Answer Session 10:03 a.m. – 10:11 a.m. Fairness and Active Adjudication Brian Gover, Stockwoods LLP 10:11 a.m. – 10:19 a.m. Investigation and Fact Finding in the Role of Integrity Commissioner Janet Leiper, C.S., Barrister and Solicitor 10:19 a.m. – 10:27 a.m. First Nations and the Duty to Consult Scott Robertson, Nahwegahbow Corbiere 10:27 a.m. – 10:37 a.m. Go Ahead and Ask Us (Question and Answer Session) 10:37 a.m. – 10:52 a.m. Coffee and Networking Break 2 10:52 a.m. – 11:25 a.m. Designing the Infrastructure of Tribunals (30 minutes ) Moderator: Dean Lorne Sossin, Osgoode Hall Law School, York University Professor Karim Benyehlf, Ad.E., Director of the Cyberjustice Lab, Université de Montréal, Faculty of Law Rebecca Stulberg, Community Legal Education Ontario E. Ann McRae, Rexdale Community Legal Clinic 11:25 a.m. – 11:33 a.m. Trinity Western and the Application of the Charter in Tribunal Decision Making Linda Rothstein, Paliare Roland Rosenberg Rothstein LLP 11:33 a.m. – 11:41 a.m. Developments in Regulatory Negligence Law - the Liability of Public Authorities Stephen Moreau, Cavalluzzo Shilton McIntyre Cornish LLP 11:41 a.m. – 11:49 a.m. Credibility Issues Refresher Jill Dougherty, WeirFoulds LLP 11:49 a.m. – 12:00 p.m. Go Ahead and Ask Us (Question and Answer Session) 12:00 p.m. Program Ends 3 THE SIX-MINUTE Administrative Lawyer 2017 March 1, 2017 SKU: CLE17-0020801 TABLE OF CONTENTS TAB 1 Rebottling Old Wine: Updating the Adjectival Law of Judicial Review of Administrative Action ………… 1 – 1 to 1 – 19 Dr. Paul Daly, Senior Lecturer in Public Law, University of Cambridge and Derek Bowett Fellow in Law, Queens' College TAB 2 Today is Not That Day: Recent Cases on the Standard of Review ………………………………………………… 2 – 1 to 2 – 7 Nicholas McHaffie, Stikeman Elliott LLP TAB 3 Sketching the Boundaries: Active Adjudication as a Means of Enhancing Fairness in Tribunal Proceedings ………………………………..………… 3 – 1 to 3 – 14 Brian Gover, Stockwoods LLP Pam Hrick, Stockwoods LLP 1 TAB 4 The Nature of the Integrity Commissioner Investigative Function …………………………………………. 4 – 1 to 4 – 15 Janet Leiper, C.S., Barrister and Solicitor TAB 5 First Nations and the Duty to Consult ………………… 5 – 1 to 5 – 3 Scott Robertson, Nahwegahbow Corbiere TAB 6 PANEL - Designing the Infrastructure of Tribunals TAB 6A Designing the Infrastructure of Tribunals …………… 6A – 1 to 6A - 1 Professor Karim Benyehlf, Ad.E., Director of the Cyberjustice Lab, Université de Montréal, Faculty of Law TAB 6B About Steps to Justice ………………………………………… 6B – 1 to 6B – 2 Rebecca Stulberg, Community Legal Education Ontario TAB 6C Video Conferenceing as an Option at the Social Benefits Tribunal ……………………………………………..…. 6C – 1 to 6C – 7 E. Ann McRae, Rexdale Community Legal Clinic TAB 7 Regulatory Negligence: Recent Update on and Analysis of "The Duty of Care" ……………………………… 7 – 1 to 7 – 36 Regulatory Negligence and Administrative Law …… 7 – 37 to 7 – 63 Stephen Moreau, Cavalluzzo Shilton McIntyre Cornish LLP TAB 8 Credibility Issues Refresher ………………………………….. 8 – 1 to 8 – 14 Jill Dougherty, WeirFoulds LLP Lara Kinkartz, WeirFoulds LLP Jordan Stone, WeirFoulds LLP 2 TAB 1 THE SIX-MINUTE Administrative Lawyer 2017 Rebottling Old Wine: Updating the Adjectival Law of Judicial Review of Administrative Action Dr. Paul Daly, Senior Lecturer in Public Law, University of Cambridge and Derek Bowett Fellow in Law, Queens' College March 1, 2017 Rebottling Old Wine: Updating the Adjectival Law of Judicial Review of Administrative Action Paul Daly, Faculty of Law, University of Cambridge and Derek Bowett Fellow in Law, Queens’ College, Cambridge Six-Minute Administrative Lawyer, March 1, 2017 The law of judicial review of administrative action has grown in leaps and bounds in recent decades. In particular, modern doctrines of reasonableness and procedural fairness have gradually encroached on what administrative lawyers once called ‘the merits’ of administrative decisions. Where previously errors ‘within jurisdiction’ were more or less immune from judicial oversight and correction, nothing is now off limits as far as reviewing courts are concerned: errors of law and fact alike can provide grounds for judicial intervention. While doctrines of deference ensure that judges exercise their judicial review function with due caution, such that administrative decisions generally tend to survive challenges to their substantive reasonableness,1 there can be no doubt that, in principle, the breadth and depth of judicial review of administrative action is much greater than it was several decades in the past. The Supreme Court of Canada’s formulation of reasonableness review – “justification, transparency and intelligibility” in the reasoning process and oversight to ensure that decisions fall within the range of possible, acceptable outcomes2 – would have been unthinkable a generation ago. The increased breadth and depth of judicial review has, of course, given rise to predictable controversy.3 A less appreciated consequence, however, is that the “adjectival” law of judicial review may have fallen behind substantive administrative law.4 On issues such as the content of the record on judicial review applications, the extent to which administrative decision-makers can participate in judicial reviews of their decisions, superior court review of federal prison decisions and tribunals’ capacity to reconsider their decisions, the adjectival law has lagged the substantive law. My goal in this paper is to set out an analytical framework for updating the adjectival law of judicial review of administrative action. I should note at the outset that the framework I propose does not envisage the adjectival and substantive law moving forward in lockstep. As I hope to demonstrate, the relationship between the adjectival and substantive in the common law tradition is dynamic and unpredictable. I will lay out my proposed framework in Section I. Courts must exercise caution in updating the adjectival law, in order to avoid subsequent pressure to apply broadly or further reform the substantive law. Changes should only be made to the adjectival law of 1 See Robert Danay, “Quantifying Dunsmuir: An Empirical Analysis of the Supreme Court of Canada’s Jurisprudence on Standard of Review” (2016) 66 UTLJ 555. 2 Dunsmuir v. New Brunswick, [2008] 1 SCR 190, at para. 47. 3 See e.g. Mark Elliott and Hanna Wilberg eds., Mapping Taggart’s Rainbow: the Breadth and depth of Substantive Review (Hart, Oxford, 2015). 4 David Mullan (2012) 26 CJALP 87. 1 1 - 1 judicial review of administrative action in an incremental fashion where a development of the law is necessary to ensure that the courts can effectively carry out their reviewing function. These changes fall to be considered, moreover, in a particular setting, one shaped by understandings of the constitutional role of the courts vis-à-vis the administration, in particular that judges may not substitute their judgement for the judgement of the decision-maker designed by the legislature. Finally, changes to the adjectival law should, in the interests of coherence, be made by reference to the same principles or values that shape the substantive law.
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