323-Macdonald Administrative Process Winter 2006

7/31/2019 323-Macdonald Administrative Process Winter 2006

1/41

ADMINISTRATIVE PROCESSSPRING 2006

Julien Morissette


2/41

May 8th, 2006

PART I: INTRODUCTION AND TRANVERSAL THEMES

Class 1: Aspirations for Public Administration

Law is the endeavour of symbolizing human conduct governed by rules. Administrative lawis about institutions, instruments, processes and values through which public policy is translatedinto law.

Child in the well story Insurance companies and governments function much on the sameway, the idea is to make informed choices based on the big picture, not just individual

problems. Schipol fly in the urinal story Sometimes, commanding or bribing is notnecessary to achieve the desired behaviour.

A. InstitutionsState Non-State International

Parliament, courts, Crowncorporations, departments,PMO-PCO, police, tribunals,statutory agencies (munici-

palities, health boards, airportcorporations), GG, army,

Indian Actbands

universities (close to theState, also RMC), religiousinstitutions, charitable orga-nisations, private corpora-tions, unions, partnerships,local NGOs or quasi-NGOsdependent on the State(quangos), political parties,

clubs, family

UN, WTO, NATO, NAFTAarbitrators, ICC, MSF, ILO,Mercosur, IBRD, ADB,Catholic church, Al-Qaida

B. Processes

We will exclude some things, such as terror. A non-exhaustive list: voting, consultation,lobbying, adjudication, negotiation, contract, arbitration / mediation, markets, conflict,revelation / education / indoctrination, money, bequeathing, command / orders, deliberate resortto chance, practice / custom.

C. Instruments

Making rules, taxing, subsidizing These may also be looked at as processes or eveninstitutions. The three above categories are simply different angles to look at the institution ofgovernment.

D. Snapshot of an Administrative Process: The LCC and Residential Schools

Issue (2a): How to deal with claims of residential school victims without being bankrupted bylawsuits? What kind of answer should be given?Former public policy (2d): Assimilation (hindsight), education, economies of scale (residential)for education, understanding of dominant culture, little supervision, many unqualified /authoritarian / predatory teachers, evangelization, etc.Those looking for the story told in a certain way: department of justice, churches, aboriginalleadership.

2


3/41

What you get from a civil trial: money, publicity, perhaps a moral judgement.

To define the system, the LCC has to tentatively figure out its objectives. It needs to find thefacts (objectives are defined by these and colour them in a certain way) through evidence(documentary sources, personal accounts) found by independent or in-house researchers, polls,

self-reporting, public inquiries, police / CSIS investigations, parliamentary committees, NGOs.On this long list, the government picked the LCC. Why? Get it out of the Department of Justice,which both heightened the profile and provided independence. There was also a wish for a legalresponse.

Once the LCC has the mandate, what do you do? Many options were explored: ex gratiapayments, ombudsman, injury compensation board, TRC The three retained options wereTRC, redress programs, community-based initiatives (the abused tend to become abusers).Compensation to individual survivors was ranked second-last on the hope list compiled by theLCC. If all you have is a hammer, everything looks like a nail , if all you have is torts,everything looks like a tort claim. On top of the list was public acknowledgement, followed by

apology, wrongdoers taking responsibility, help / counselling to move on. Ranking of thosethings that cost money: prevention, healing communities, public memorial, individualcompensation.

Not everyone was happy with the report. Outside government and aboriginal lawyers, otherabuse survivors, some lawyers, churches were at least somewhat unhappy. The most opposedgroup was the teachers union, it sued the LCC. There was a perception that every singleresidential school teacher was an abuser.

May 9th, 2006

Class 2: Administrative Governance: Institutions, Processes, Objectives,Values

A. Recap of Previous Class

The theme of this class is diversity, multiplicity or goals, tools, processes, actors,instruments. Public policy is a never-ending adjustment to circumstance. There is no suchthing as getting it right, the most one can hope for is working to policy instruments thatreduce the distance between efficacy and effectivity, basically desired effects without sideeffects. The cure should be better than the illness. Most of what an LRC and an LCC do is

find solutions to problems coming from yesterdays solutions (cf. Lord Mansfield on the CL).

The terrain on which one operates changes constantly. Ex.: When medicare was set up in the1960s, the assumption was that 60-65% of the cost would be spent on doctors and nurses inmedical practice. By 1985, 80% of expenditures where elsewhere: hospitals, testing procedures,drugs. In 2005, only about 15% is spent on doctors and 30% on drugs. This means theinstitutions may have to be rethought. Another ex.: Sometimes a policy instrument is created fora purpose and one discovers it works very well for something else that was unforeseen. Theclassic ex. in Canada is the baby-bonus or family allowances established in 1947. The initialreason was to encourage consumption, with increased production and more jobs for 400,000demobilized soldiers (not so much to ensure that children were not in poverty, or to help the

mother to whom the cheque was made out, or to encourage natality). The government alsocreated the CMHC to make housing more accessible and increase purchases at the same time.

3


4/41


5/41

significant presence of labour / socialist movements in Canada since at least the 1920s withfew significant parallels in the US.

Using a simplified political diagram to represent Canada

neo-con. Hierarchy facistwhig tory

Individuals Organic

liberal socialist

libertarian Egalitarianism communist

Historically, each cell has been represented and still is. Whereas in the US, the right side of thediagram is almost completely absent. One of the classic explanations is the fragment theoryof Louis Hartz. He hypothesized that the moment a new State is founded and there is a breakfrom the colonial power will give a clue on the dominant ideology. The US revolution wasagainst toryism. Tories were exported to Canada in what is now Ontario, aided and abetted bythe ultramontane structure in Quebec. In the 19th C., the US debate was whig (Hamilton) /liberal (Jefferson), in Canada it was tory (MacDonald) / liberal (MacKenzie). Politicalideologies often spawn their opposite, toryism spawned socialism in Canada. Red tories aregenerally tories but who see government as a positive actor in the economy (conservativescreated most Crown corporations).

Childcare for:- Tories => State franchising, institutions such as private schools.

- Socialists => Public institution such as public schools.- Liberals => Private daycares, with a tax credit.- Whig => Private daycares, means tested, with vouchers for low incomes.

How has the presence of tories and socialists in Canada influenced public policy? This takes usinto history. Policy analysts say that Canada has lived through two national policy cyclesand is embarking on a third:

- Post-1870 depression MacDonaldian NP with infrastructure building, immigration andhigh tariffs [a revisionist theory said Canada was built as a hinterland for the Montrealcommercial elite], all Canadian liberals were opposed. This was the exoskeleton ofCanada. Aligned with this was creation of Crown corporations, with a load of political

clientelism (CP rail, Bell Canada were created by friends of the Conservatives).- Post-1929 realisation that charities could only do so much, the Rowell Sirois report of

the late 1930s was the blueprint for the welfare State, creation of Crown corporations,etc. The instruments changed: regulatory State, agencies, bureaucracies, tax & spend.Attempts to use the first NP (Petro-Canada) turned out to be a dead end. This was thelifeblood of Canada.

- Post-1978-82 (second oil shock), a new cycle seems to have started. The instruments areclear, but the goals and values much less so. Instruments: Charter, FTA, NAFTA, GST,de-regulation, privatisation, Meech Lake, balanced budget What conception ofsociety do these instruments reflect? Politically liberal, State as business corporation,(sub- and exo-)urbanisation.

5


6/41

Just because one is a whig or a liberal, even if government has a role in some field, ideologywill shape policy instruments: childcare or early childhood education?

May 10th, 2006

Class 3: The Rule of Law: Dicey, McRuer, Willis, Arthurs, the Charter

A. Recap of previous class

How can the GST, NAFTA or the Charter be governing instruments? Taxation (mostly itsdesign) can be a response to a problem, just like creation of an agency to control employment.The assumption of the Charteris to offload significant political decisions onto the courts, whichwill create standards that will become applicable across the regime.

This touches upon the practice of law, even if this is usually associated with civil servants orpolicy analysts: creating systems of rules in M&E, tax planning, etc. Law can be practicedproactively through instrument design.

B. Classical Approaches to the Rule of Law

Reading texts from the early 20th C., such as Diceys, requires contexts. Asking the standardquestions:

- Who and when? Alfred Dicey was a constitutional law professor / scholar at Oxfordand part of the landed gentry. Under assault at that time is his cosmology, the welfareState is being created. In 1881, non-land owners got the right to vote. The primary

resistance was the House of Lords, which lost its veto capacity in 1911. The next betwas the courts. The articulation of the constitutional doctrine was embedded in thepolitics of the time. Dicey claims history as a basis since the Norman Conquestwithout justification.

- Where? The UK. These theories did not emerge in the US (We the People, not Methe King) or France (natural law, the French revolution grounded sovereignty in thebottom), although these countries had their own rule of law theories.

- What? First, ordinary law (statutes, common law) applied by ordinary courts.Extraordinary law are discretionary powers, regulations / delegated legislation.

Extraordinary courts are tribunals (vs. KB, Chancery, Admiralty, Probate,Ecclesiastical which were merged in the 19 th C. but were a foundational principle).Second, no one is above the law (unlike French droit administratif[supremacy of publiclaw] which, purportedly does not exist in the UK, no distinction between public and

private law, no specific law that applies to public officials, Dicey later recanted on thisdistinction). Third, citizens are protected by the discovery remedies (mandamus, quowarranto, certiorari see theMagna Carta which says if X happen you can do Y) asopposed to abstract propositions in constitutional documents (France and the US at thetime, now Canada). All three of these were wrong in their particulars but right in theirgeneral principles.

- Why? Urbanization, wage labour, rise of unions, workers compensation, consumptiongoods, rental of housing, automobiles. For every one of these perceived changes there

6


7/41

was a remedy: zoning, rent control, consumer protection, workers compensation,permission of unions, regulation of highway traffic, etc. Three private law principleswere attacked:

o Freedom of contract.o Fault-based liability.o Private property.

Legislative jurisdiction was being chewed up. This gives a completely different face tothe idea of rule of law than the way this idea is understood today (connected to aconservative political agenda? seen as inherent to democratic legal order).

In Diceys cosmology, the problem was too much government, delegated legislation, discretionto unelected official, power to non-judicial decision-makers, social engineering.

C. Willis vs. Dicey

There were three moments in the 20th C. when Diceys concerns came to the fore: originalexposition, 1930s when the British Parliament was trying to deal with the depression (LordHewart and Laski!), 1960s (McRuer, judge, Willis, professor at U of T and Dalhousie). In1962, a police investigation in Ontario on some criminal activity determined there wasorganized crime in Ontario, the AG of the time, Fred Cass (Leslie Frost government), decidedto propose amendments to the police act: suspected members of the mafia could be heldincommunicado once arrested for 48 hours. There was a huge debate so Leslie Frost askMcRuer CJO to run a commission of inquiry. There was a five volume report after 5-6 years(1968-70), which strongly echoed Dicey. This was the centre of much activity to rein ingovernment.

What are the principle concerns Willis haswith McRuer? What would have McRuer answered?Rights-based approach is biased. Legal questions, for which judges and lawyers

are most qualified.

Lawyers and judges perspective (not civilservants).

Rights-based approach upholds individualrights.

Out of touch with the present. In touch with principles / values if not facts(not good just because it is).

Ideological approach. The question is not empirical.

Unitary, one-size fits all approach. One law for all citizens.

In five volumes, there not a single case study! There are a lot of theoretical concerns about thebad things civil servants coulddo, but no real examples. The McRuer Report is a case ofidealized version of courts, worst practical view of government. Practice always looks badwhen compared with theory

Its hard to compare the well-paid, high educated status of a judge with the lowest paid, scantilyeducated clerk at some border crossing. One would expect judges to perform better. How canthe administrative State be improved? Training and education is fundamental. Increasing payand job satisfaction attracts more qualified candidates. Procedural safeguards can becomeunmanageable (mass adjudication 24,000 trucks crossing the Ambassador Bridge every day,500,000 lanlord-tenant decisions in Ontario yearly). Twenty to one, the biggest complaint

against public administration is pig headed civil servants who wont bend the rules notenough discretion instead of too much!

7


8/41

Why does Parliament enact privative clauses? Concerns about expertise, costs, avoidance,biases of judges, etc. are sometime legitimate. A lot of bodies are created to push a certainpolicy agenda. Law is just politics by another name, two forms of politics being balanced: ruleof law and agenda of the day. We live in a political democracy, not a judocracy.

D. Judicial review

The Constitution is a basis for challenges (mostly separation of powers and Charter). If thestatute passes, the next thing down is challenging the decision on the basis of due process (bias,natural justice, reasons), jurisdiction (if power to do X, say that the body did Y; this turns out to

be trickier than it seems), abuse of discretion (irrelevant considerations, improper purpose,Duplessis told Archambault to yank the permit, sub-delegation, didnt look at cases merits butapplied policy). This is almost a right of appeal.

The ordinary control of administrative action works very much like s. 7 of the Charter. But

there is no s. 33 in administrative law unless it is directly invoked by Parliament. Today, theDiceyan rule of law has transmogrified into control of exercise of discretion and

jurisdiction. In the final instance, there is no immunity to judicial review.

May 11th, 2006

Class 4: Public and Private Spheres: the Choice of Governing Instrument


Three main ideas were covered. First, many considerations get reduced to single dichotomies,but apparently simple distinctions (pro- or anti-judicial review) actually cover a lot of ground.Second, the way the rule of law idea was employed was driven by history and socialcircumstances. Today, international entrepreneurs are the major proponents of the rule oflaw Third, the idea that the world divides into law, constrained authority, rational

justification vs. politics, unconstrained authority, consequentialist reasoning is unfounded.

CL grants no right of appeal from tribunals. However, superior courts define the border of theirjurisdiction under statute and the Constitution. This is the basis of judicial review. Privativeclauses attempt to limit courts ability to judge borderline issues. Remember that there is nosuch thing as an ironclad privative clause. Decisions like Crevierhave held that judicial review

is constitutionally guaranteed. Obviously, there is a problem of conflict of interest for superiorcourts.

B. Public / Private Vectors

What is public, what is private? What is public law, what is private law?

Private law Public law Public social activity Private social activityTort, Contract, Property,Wills & Estates, Family,Equity & Trusts, SecuredTransactions, Private

International Law,Remedies, Restitution, Sale,Real Estate Transactions

Criminal, Constitutional,Maritime, PublicInternational, Environmental,Aboriginal, Space,

International Development,Tax, Administrative,Securities Regulation,

army, police, transportation,natural resources,communications, streets,weather, public health,

elections for political office,social norms, internationalorganizations, social welfare,

family, private property,religion, personalassociations, business, home,sexuality, other social

norms

8


9/41

Labour basic education

At different times and in different societies categories migrate and fields of law migrate. Thereare also many borderline cases: public torts, zoning, expropriation, chartered corporationsThere are many migratory phenomenons. Public => private : governments should act as

corporations to become more efficient, tradeable emission permits, four times as many securityguards as there are peace officers, streets in shopping malls, private parks (McGill!), gatedcommunities, private industrial parks, voucher education and healthcare, private tolledhighways, private sewer and water companies Private => public: corporations should act asgovernments to become more accountable, contracting out of government services, non-smoking by-laws in restaurants, domestic abuse, child abuse and welfare, workplacediscrimination legislation, former torts handled by public law regimes (labour, automobiles),

politicized religious fundamentalism

Hayeks cosmologyPrivate Public

Non-State StateIndividual Collective

Freedom, Autonomy, Rights Interests

Market Politics

Courts (adjudication) Courts (any reasonable factors)

Corrective or commutative justice Distributive or allocative justice

In corrective justice, the status and relative economic entitlement of the parties isirrelevant, only the nature of the transaction is important. Our first inclination is to thinkthat private law is adjudication done by courts, public law administrative law done bygovernment. What about the Rgie du logement or Small Claims Court which areadministrative bodies doing adjudication? Or courts making a decision based on justcircumstances (ex. alimony) or allocating public resources (CRTC could do auctions forfrequencies)?

Frequently, public goods have to be allocated. One needs a good to distribute, a class ofbeneficiaries and some criterion for allocation for distributive justice. This is completelydifferent from corrective justice. Yet punitive, moral or treble damages in torts have a strongredistributive component. Restorative justice is also an interesting case between corrective andallocative justice (unjust in Aristotles framework, as there were only 2 kinds of justice).

C. Privatisation / Regulation

When we start looking at case studies, we will see that private / public activity or law are notthe only distinctions. But many debates in agencies have to do with mix and match betweenallocative and distributive justice. As a government, how does one know which one to pick?The only answer is that a team should be built to be greater than the sum of its parts. Everyaction also has collateral effects, which must be considered. Public policy is more than interestgroups fighting in parliaments to carve up the body politic. Sometimes privatizing works for the

public good. These phenomena have to be studied in details, beyond ideology.

May 15th, 2006

9


10/41

PART II: THE STATUTORY DELEGATION OF PUBLICAUTHORITIES

Class 5: Approaches to Statutory Interpretation


First, what we normally think of as private and public law does not necessarily track whatwe imagine to be private and public space. It flows from that a number of things associateswith private law (contracts, torts, property) are in fact regulatory positions. Certain types ofconduct shall not be subject to supervening government regulation. For ex., only certain typesof harm lead to extra-contractual liability: regulatory position that only certain types of wrongsdeserve compensation. Same thing for contracts: not every agreement is enforceable. In privatelaw, there is in fact much regulation: recognizing something as property or not, imposing goodfaith in contract, public order, etc. The Legislature has the same choices to make when it

decides to have a Chief Apiarist or to enable the sale of genetic material. Even the absence oflaw is law whenever Parliament is enabled to act. The quantity of regulation is a constant, theonly thing that changes is who, what, when, how? - Macdonald.

In 1968, Parliament took away the offence of buggery for consenting acts between adults inprivate, by amending the Criminal Code. This was a regulatory choice, the State moved out.There is a different between this type of choice and recognizing same-sex marriage. This is a

public act, it is not a private one: deregulation in the private sphere, regulation in the publicsphere. Sorting is difficult There is a huge range of possibilities for a State that wants to dosomething.

B. The Inspection, Licensing & Registration Function

The Apiary Inspection Act (NB) is both short and simple. It also is in the category mostcommon for statutes: inspection, licensing and registration.

Every province had such an act at one time, today all provinces do except Alberta and Ontario(repealed in the late 1990s). In these two provinces, there are officials in the Ministry ofAgriculture in charge of the file. They receive their powers from the Ministry of Agriculture

Act. The lack of a specific statute does not mean there is no governmental presence.

There is no preamble to the statute, it doesnt say what its purpose is. Possible purposes:- Standardization of industry practice.- Controlling apiary diseases.- Health and quality control.

There is no attempt to protect public health or control market entry / quantities in this statute.

It doesnt appear any voter lobbied for this. Honey producers, hive and queen traders, basicallythe bee-keeping industry were behind this act. They are a powerful lobby: every US state hasa similar structure.

Reasons behind this

Reason Truth Advertisement

10


11/41

Public trust X

Protecting ones bees X X

Protect the bee market X

Shift cost on government X

Limited expertise X

What other regulatory strategies are open to address bee health concerns? The authority couldbe delegated to a trade association (self-regulation, such as law societies). Markets candiscipline, for the future through publicity and for the past through contract or tort (causation

problem could use market share liability, tantamount to insurance or loss-spreading here).There could be an insurance scheme. Or outsourcing to a private company as opposed to self-regulation (in some sense, mandatory insurance does that). Another option is nationalizing theindustry (ex. northern cod). The last option is criminal law (certainty of detection is a deterrent,unlike the potential sanction).

C. Statutory Delegations

A statute is an instrument by which public authority can be delegated to a person. Thisperson may be a private person, a specific official, an employee of a Department, a self-regulating association, a company It was only starting in the 17th C. that the Crowns powerto delegate came to be regulated by statute rather than a part of the royal prerogative. Manythings that ministers do are not directly given by statutes. For ex., few statutes say that theMinister of Finance has the power to prepare the budget. In this course, we will look almostexclusively at statutory authority (including delegated legislation).

What does a statute do? One should not be deceived by the title,Red Tape Reduction Act

How (generic register)? TheAIA is an inspection, licensing & registration statute, not criminallaw or setting up some agency. The AIA provides for a regime of inspection, a registrationscheme, establishes a hierarchy of authority, creates prohibitions, gives a power to quarantineand destroy property, labels actors, outlines powers and duties, creates fines and penalties,operates a publicity regime (sign). The most significant ones are underlined.

Who?Hammer Nail

Minister (s. 1,2)Provincial Apiarist (s. 2)

Lieutenant-Governor in Council (s. 14)Crown in right of NB (s. 13.1)Judge (s. 7)Court of competent jurisdiction (s. 8.3)Implied: police, bailiff, prosecutor

Bee-keepers (s. 1, 3)Other people (s. 5, 10)

Queen bee-keepers (s. 11)Sprayers of blooming trees (s. 12)Renters for pollination (s. 14(c))Importer (regulation)

Who runs the operation? The office of the Provincial Apiarist. He is responsible to the Minister,who appoints the Provincial Apiarist and the inspectors. He may fire inspectors uponrecommendation of the Provincial Apiarist (at pleasure appointment, cant be sued fordismissing).

Who has the powers? Well divide powers in two. First, management powers (Minister,Lieutenant Governor in Council and PA). Even a simple statute like this contains management

11


12/41

powers. Often, most of a statute is a list of management powers Second, powers vis--visbees. The inspector has power of quarantine, seizure, destruction (s. 8) and also to inspect (s. 6).The PA can quarantine imports (s. 4). The inspector recommends moving bees to portableframes, but the PA decides (s. 9). The PA compels an annual report (s. 3(2)).

What are the processes? Inspection is the main one. But there is also a process of publicity,process of signage (s. 3.1), certification to import bees (regulation), registration of bee-keepers,filing of a return. There are many self-reporting processes.

What are the prohibitions? Cant spray arsenic on fruit blossom, cant ship candy if the honeyhasnt been boiled for less than 30 minutes, cant ship an infected queen, cant sell or transferinfected bees, cant possess infected equipment. These are regulatory offences, not crimes (see91(27) CA 1867). Several offences are absolute liability (confused case law on provincialoffences). The punishments are stated in a list, which refers to the Provincial Offences

Procedure Act. For ex., breaching s. 4 (category F offence) involves a fine of $240-$5120 or amaximum of $7620 for repeat offenders (s. 56-57). S. 58 says that offences committed for

personal gain or to avoid regulation, the judge may impose the fine s/he deems fit. This is astandard feature of regulatory offences. It is the provincial court, criminal division that dealswith these offences (assembly-line justice). There are very few prosecutions under thesestatutes, only scofflaws usually (other compliance attempts made first).

May 16th, 2006

Class 6: Constraints on the Interpretation of Legal Texts


As we look at theAIA, our assumption is that the delegate is a government official or anotherperson given the role. But a number of provincial statutes appoint judges as administrativeofficials (persona designata). A common situation is line fences acts: land registrars appoint

provincial judges as fence viewers in fence maintenance disputes. In those cases, judges donthave the usual immunities (ex. cant sue a judge for performing a judicial function, can sue himfor negligently acting as a statutory designate). There is a phenomenon of borrowing of

judges as they are seen as impartial. As an aside, this cannot be done constitutionally in the US(although done with Jackson, prosecutor at Nuremberg, and Warren, who headed the Kennedyassassination inquiry).

Each province has something like a Pregnant Mares Urine Farms Act (urine used to culturepenicillin). In theAIA, the target is the health of the bees, not public health (can boil the honey).For penicillin, the rationale is more public health. In neither case was monopoly a motive.

True / false questions on AIA: 1-F (unless first inspection was negligent); 2-F (need approval ofPA); 3-F (s. 7); 4-T (s. 12); 5-F (s. 3); 6-F (s. 5(2)); 7-F (only LG in C can make regulations); 8-F (s. 2); 9-T (broad definition of bee-keeper); 10-F (his name, s. 3.1); 11-F (s. 11(1)); 12-F(only suspension or removal).

B. Official and Unofficial Interpretations

A number of themes recur in Hartogs article. Who were the addressees of the municipalordinance forbidding pigs in NYC? Certainly the pig lawyers, bourgeois lawyers, city

12


13/41

lawyers / prosecutors, homeless shelter lawyers. The judges were also adressees (mostly formerbourgeois or city lawyers). Why isnt the statue addressed towards pig holders? There was anassumption that pig owners didnt pay attention or couldnt read. Ironically, most legislation isnot drafted for the people who are regulated.

What do pig lawyers tell there client? Basically that its OK, as there are few prosecutions andeven reimbursements for seized pigs. The lawyers extrapolate from past and related experience.Was it a free for all, civil disobedience for pig owners? Hartog speculates that there werecustomary norms. Presumably, aggressive pigs were not appropriate.

There appears to be a conflict between the written law of NYC and the customary law of pigowners. Ironically, court verdicts favoured customary law. Influence of jurors may have playeda part, but according to Macdonald it was more a common law vs. statute conflict. There mayalso have been a sense that pigs were useful in certain neighbourhoods without street cleaning.

Twenty years later, judges changed the interpretation and came to the conclusion that the

municipal ordinance had to be followed. The interpretation was driven by the facts on theground, the context larger city, improvements in transportation (ship swine by railway). Noneof this is in the ordinance itself, but rather in judicial reasoning. A statute is always anchored insome set of pre-existing practices.

C. Methods of interpretation

That said, lawyers still have to read and interpret statutes. It often comes down to the letter /spirit and liberal / restrictive debates. No person shall sleep on a bench in a Metro station inMontreal. Macdonald falls asleep while waiting for a train. Or he brings a sleeping bag, putseyeshades on but has not fallen asleep yet. Literally, the first case is an infringement and not thesecond. In terms of purpose, the second is but the first one isnt. Probably neither person would

be convicted: in the first case the bowtie is pleasing, in the second case offences are interpretedrestrictively. Suppose that the hypothesis was not a prohibition but a benefit. Interpretationwould be broad.

These rules, canons of interpretation, were devised by courts. Famous ones are: expressiounius est exclusio alterius (one mentioned excludes others), ejusdem generis (generic category).There are hundreds such maxims created by courts, but should they control the interpretation ofstatutory delegates and public officials?

D. Controlling interpretationLegislatures very often try hard to get courts to interpret words in a certain way.Sometimes, legislatures tries to control interpretation within a statute: preamble articulating thespirit of a statute (s. 13, Interpretation Act), titles (Act Respecting Apportionment in the

Legislature of Ontario orFewer Politicians Act;Prevention of Unionization Act!), substantivedefinitions, headings.

Beyond internal controls, there are external controls: rules on how to read a statute(Interpretation Acts). S. 10 of the federal Interpretation Actsay that the law always speaksand tells courts that spirit, intent and meaning in the present (read statute as applying to the

present) are paramount. There also are judicial canons, which courts deem legislatures to know.One of the main constraints on interpretation is that the legislature usually says who is to

13


14/41

interpret the statute (ex. superior court used as federal court for bankruptcy), the only limitbeing s. 96. The federal Parliament can create courts, it and provincial legislatures can createtribunals.

Finally, the legislature is choosing who will interpret the statute. A court will mean lawyers,

who have a certain understanding of their role, a certain knowledge, a certain drive, etc. Thestory is different for a labour board. Is it no surprise that the Faculty of Law has the most, andthe most detailed, academic regulations. The Faculty of Social Work regulations are a differentstory Different patterns of understanding associate with different disciplines. Legislaturesperform a sort of forum shopping.

What went wrong in Singapore? An extremely literal, contra spirit, interpretation of a statutewas used. Also there are safeguards as to what can be done at a polling station, so the purposewas supposedly respected (although officers were appointed by the party in power!). Whydidnt the legislature foresee this? How much context does the legislative function require? Dowe expect courts to know the context of everything? This is an impossible task. There is always

a limited amount of context judges are presumed to know. But judges often need to be educatedabout a specific issue.

There is a belief that if the legislature gets it right, the context will look after itself.Parliaments appoint statutory delegates when they want something else: specializedknowledge, fact-sensitive interpretation. Nonetheless, in a constitutional democracy, courtshave ultimate interpretative authority. Privative clauses are more about giving experts a firstkick at the can.

May 17th, 2006

Class 7: The Ontario Human Rights Commission as a Creature of Statute


A post on WebCT had to do with the relationship between written text and interpretativecommunities. The Pigs and Positivism article was a way to show that there are normativesystems that compete with formal texts. This doesnt only exist in the realm of public law, butalso in private law, ex. contracts (for ex. in manufacturing clusters). When we think about thedelegation of statutory authority, there are at least 5 epistemic communities involved:

- Legislature and its members when the statute was enacted.

- Courts as they exist whenever any case comes before them.- Statutory delegates (ex. Provincial Apiarist).- Community of regulates (ex. bee-keepers).- General public.

Each of these communities have experiences which bear on how the statute is read. There is nomagical formula. Three collateral effects of this are: 1- legislatures deploy techniques to directinterpreters to what was intended by the words in a text and legislatures take into account theway courts tend to interpret statutes; 2- each community reads the text in a particular way, butthere can be dissenters within any of them; 3- when the addressee of a text confronts it, this isnot an exercise of literal reading, each action involves interpretation. We cant assume anycommunity will interpret a text in the way the legislature did (assuming it knew the meaning of

what it was passing). Legal interpretation is iterative. The system will not necessarily work theway it was designed.

14


15/41

Does there have to be a hammer for there to be normativity? Is a do not needed to influencebehaviour? Fairy tales are meant to get children to reflect, children are not just raised with arule-book and with a ruler. Size of the group is also an important factor, the bigger the groupgets, the more formal rules are needed. This doesnt mean that there are no common values in

even large groups.

The final interpreter of legislation in Canada is the Canadian public. - Rod Macdonald

B. Origin and Rationale for the HRC

The HRCode apparently has explicit purposes and aspirations attached to it: value-affirming agency. What lead legislatures to create HRCs? There was a lack of enforcement,

previously there was just a tort system, the process was put in motion by the affected person.Courts also favoured those with most resources, not those who suffered discrimination. Therewas no common law on the subject, as there was insufficient judicial support for this: no tort of

discrimination. Solutions that courts can provide are limited, and there must be winners andlosers. Courts also cant investigate, start education programs or look at systemic problems.Judges also came from wealthy white backgrounds, which did not predispose them to sensitivity(although MacKay J. was in that club).

Before the HRC was created, there was piecemeal legislation with the same kinds ofprinciples. Interestingly, the grounds of discrimination varied from statute to statute and theresponsible minister varied. Discrimination was not a transversal theme, it was about housing,labour, services, etc. The big change of the HRC was the consolidation in one statute withdiscrimination as a central theme.

Many special interest groups were trying to advance an agenda of non-discrimination in1950s Ontario. Leslie Frost, who was the government of Ontario had an important role to

play in creation of the HRC. He realized that there was some political interest, but he mostlywas lobbied hard.

Hunter was in favour of the HRC until the early 1970s. By 2001, he completely changed hismind and became a pre-eminent opponent. He was the first general council of the HRC. He alsodrafted the CanadianHuman Rights Act.

The HRC doesnt look like the AIA. It is not called an act, but rather a code. It has the same

normative status under the Constitution, but the legislature nonetheless called it a code. Codegives a sense of comprehensiveness, rather than a patch on the common law. It also has apreamble, which reads like a mission statement, a statement of aspiration. Over time, theoriginal 7 sections were supplemented. Freedom from harassment was added to freedom fromdiscrimination.

Part I is written in an affirmative way (every person has the right to rather than noperson shall). It doesnt start with definitions, but rather with the substance; same storyfor the Charter. The idea is to attain some semiotic advantage. Ironically, the definitions dontsound like such universal principles. For ex., age is between 18 and 65, although a newdefinition just says age, notwithstanding done in specific statute. This is not accidental, the

way exceptions are managed was originally that all exceptions were in the HRC, which is nowrevisited.

15


16/41

C. Structure and Process

The HRC also creates the Human Rights Commission. The fact that it was done in the samestatute is a signal that enforcement would happen. It also elevates the status of the Commission.

It also raises the stakes for anyone wanting to abolish it. Also, it was a strong signal that theHRC was no mainly to be interpreted by courts but rather by the Commission. Hunter quit theCommission in 1977, claiming that it had become proprietary and self-aggrandizing. In a report,it suggested a draft act that gave its structure more importance.

In 1996, the administrative body (board of inquiry) was transformed into a HR Tribunal. Boardswere a gravy train for law professors who were not independent and had an incentive to findinfringement, whereas tribunals have independent members.

S. 34 says that there are reasons the Commission may not entertain a claim: for ex., if anotherstatute applies (labour relations), bad faith or vexatious, no jurisdiction, 6 month prescription.

There is a broad discretion to proceed. About 8,000 complaints are filed yearly. It has the staffto handle about 200, but feels it has jurisdiction and grounds to proceed on about 2,000. Howdoes it decide which 200 are to be entertained? Basically the most egregious ones, which areselected on the basis of profile, whether there are clear winners, minor ones to push existingrules.

The Commission decides how to rank the cases on the basis of internal policies. This causes theproblem of adaptive behaviour. There are also a lot of judicial review applications, which endup being very costly.

May 18th, 2006

Class 8: Intragovernmental Conversations (Prof. Baker)

It is hard to even list all administrative delegates in Canada. Our case studies were chosen assomewhat representative cases of different instruments. The Ontario HRC functioned as amodel for all the Commissions that followed. Much was written about it, especially by IanHunter.

Much rides on the interpretation of text. In Bell, everything turned around the meaning ofself-contained unit. This highlighted the power struggle between legislature, agency and

courts. The text framed arguments that could not really be made directly.

The HRC is a government in miniature. S. 29 is key: It is the function of theCommission: forward rights, promote rights, affirmative action, research, revision ofstatutes, regulations and programs, deal with conflict situations, investigations, etc. Themandate is to shift consciousness; it is also hugely discretionary. This is very much in the realmof distributive justice the emphasis is systemic and not adversarial. Resources are notunlimited, however.

Nowhere in the 48 s. of the HR Code is there a roadmap of the HR Commission. It isestablished by s. 27 rather than s. 1. The HRC is responsible to the Minister of Labour. It has a

chair and a vice-chair, as well as employees who are civil servants. It also has a certain numberof divisions, ex. race relations. S. 32 suggests that there has to be intake officers for

16


17/41

complaints. S. 33 suggests the need for investigators, which are given broad powers.Mediators / negotiators (s. 34), boards of inquiry (s. 35), regulations made by the LG in C (s.38) are also needed. Various functions of conventional government have been includedunder one roof: quasi-judicial, intake, policing, rule-making, quasi-legislation, reporting,mediation

Hunter observed that the HRC had been around for 10 years before Bellhappened. This casewas the first successful application of judicial review. Nonetheless, the HRC dealt withthousands of cases in that decade. On the basis of the enabling statute, the HRC is responsibleto the government for its every move.

Theres obviously a theme of institutional self-interest in Belland even in Bhadauria: turfwarfare. The pious hope of provincial legislatures was that HRCs would enjoy enough gradualsuccess that they would eventually wither away. However, the HRC has over time committedmost of its budget to treatment of individual complaints rather than to the broader, systemicmandate. Each time some complaints dropped off, the HRC heavily lobbied for extension of its

jurisdiction. In 1982, harassment, sexual orientation, constructive discrimination andaffirmative action were added. The HRC is now lobbying to have jurisdiction over hateliterature. Some arrogance develops in agencies just like in courts. Hunter calls the HRC staffhuman rights zealots.

Bell rented the top two floors of his house. There are no locked doors between the space heoccupies and the rented space, Bell said he preferred mature tenants. McKay was a blackJamaican who was told, falsely, that it was occupied. He made a complaint to the HRC. TheHRC told Bell he had contravened. Bells lawyer made an application for a writ of prohibitionclaiming that the HRC exceeded its jurisdiction, which at that time was limited to self-contained dwelling units. These words became the central of the who should decide struggle.Ultimately, Bells freedom of contract and right to control his home was preferred.

The Globe & Mail article said in reaction to the trial judgement that Bells human rights weremagnificently defended, even though the HRCs jurisdiction was limited! Following the SCC

judgement, it was said that Bell was rescued and that the intentions of the scheme pave theroad to hell. It was also said that the HRCs wide powers were offensive to democratic

principles and civil rights. Consciousness was not moving very fast. - Baker. Ironically, bythe time McKay lost, he had been back in Jamaica for a few years.

In good Diceyan form, the Constitution is based on two principles: parliamentary democracy

and sovereignty, and rule of law. These two ideas often turn out to be difficult to harmonize andsomewhat counter-balancing. In Diceys view, the source of individual rights was privatelaw, public law was merely reified private law. He also advocated heavy-handedpresumptions in favour of individual contract and property rights. The plain-meaning rulewas a sort of non-entrenched Bill of Rights. In that respect, courts get the last word. This viewallowed courts to arrogate the power to review acts of legislative delegates this power was

pretty much invented as an answer to the threats to the established order. This was the push-me-push-you phenomenon inBell.

The CL provides for no right of appeal beyond superior courts. But appellate courts have theentitlement of reviewing actions of legislative delegates on basis of jurisdiction (and also

natural justice).

17


18/41

Every time a statute is created to displace CL rules, courts are displaced. Progressively, courtshave found themselves increasingly relegated to the interstices of administrative bodies. Forobvious reasons, courts are not pleased. The current CJ of Ontario said in a speech that they areautocratic, arbitrary and irresponsible bodies and added that security of life and propertywere paramount (The national safety is in danger!!!). There is a sense that McKay and Bell

were tokens, coincidental for an important underlying debate. Escalation in privative clausedrafting was ineffective, even when the BC Labour Relations Board legislation said that thisagency has exclusive jurisdiction to determine its own jurisdiction.

Admin pro gives the worms-eye, inside-out view of administrative action. Judicial review givesthe birds-eye, outside-in view of courts sanctions of administrative action when somethinggoes wrong. Late 19th C. courts decided that they could review the behaviour of any inferiorgovernmental operator. They dressed up this newly found power in seven prerogative writs(public law equivalent of debt, detinue, trespass, etc.): certiorari, prohibition, quo warranto,mandamus, habeas corpus, declaration / injunction (Nabisco prerogative writs). Each of thesewrits have a special function: certiorari to quash (in the US, certiorari is exercised with respect

to an inferior tribunal), prohibition to stop an action pre-emptively, quowarranto under whatauthority (19th C company law developed through this, special act incorporations at the time),mandamus mandate action, habeas corpus compel release, declaration and injunction as in

private law. Federally, ss. 18 and 28 of theFederal Court Acttalks about applications in thenature of judicial review; Quebec and Ontario also have reformed the writ system. Courts stilloften use the old language, though.

Three questions as a reviewing court: Constitutional jurisdiction to delegate the power to theagency? If yes, is the particular power asserted by the agency within the scope of delegationspecified in its enabling statute? If yes, were the rules of natural justice followed (notice, audialteram partem, counsel, written decision, etc. basically act like a court, procedural issues

blur with substantive ones)?Roncarelli v. Duplessis says administrative decision makers haveto behave reasonably. Nicholson says that the process has to be fair (notice, hearing,explanation). CUPE v. NB says that reviewing courts should defer to agencies unless theiraction is patently unreasonable.Bakersays that reasonability, fairness and deference applies toall administrative action. This was the 10-minute version of Judicial Review.

There are many other accountability mechanisms than courts! Cabinet, Auditor General,etc. Knee-jerk judicial review reactions should be controlled. Yet, over the last 50 years, thesupervisory ability of courts has been greatly extended. The effect of many modernizationshave increased courts jurisdiction.

InBell, the warfare escalated so quickly that the HRCs ownstare decisis on the question wasnot even considered. Ironically, Tarnopolsky and Krever, who had decided as boards of inquirythat cases such as Bells were within the HRCs jurisdiction, where appointed respectively tothe OCA and the Ontario Supreme Court. Interestingly, the expression self-contained dwellingunit was later removed by the Ontario Legislature. In Bell, the SCC was concerned that therewas sort of a built-in institutional bias inside the HRC in favour of plaintiffs.

Managing human rights is not like sending out an apiary inspector. The change has to beprogressive and managed. Legislative zeal can end up being counter-productive. This is alarge part of Hunters critique. In BC, the Social Credit government abolished the HRC in the

early 1980s and replaced it by a one section statute creating a statutory tort of discrimination.

18


19/41

Ontario still has an HRC. Quebec also does but delictual action is also possible. Differentmacro-instrumental choices generate different results.

Post-Charter, Badhauria may have turned out different. At the time Laskin, was extremelynervous about the outcome if courts got control. Maybe Laskin is too much of a fan of

administrative processes. They too are imperfect: Badhauria did complain to the HRC 6-8times, which did not yield anything.

May 23rd, 2006

PART III: ALLOCATIVE, REDISTRIBUTIVE ANDOVERSIGHT PROCESSES: DISCRETION

Class 9: Ltat-Providence and Discretion


Macdonald emphasizes the background note on intragovernmental conversations. Back to theidea of accountability and review As a matter of institutional design, how can it be ensuredthat a decider makes a decision to the best of his abilities and furthering the goal of the statute /regulation? One will first think of incentives and second of corrective or punitive measures. The

people have to be well chosen, trained, have positive incentive and a manageable workload,knowledge has to be shared through time. Sometimes, mistakes are made, which call forreview:

- In house review. Reconsideration first by the same decision-maker, then up thehierarchical chain. Most large organisations have built in accountability / appeal

structures.- Out house review. This doesnt necessarily mean courts, it may be specialized

administrative tribunals, Cabinet, ombudsperson, but also direct statutory appeals tocourts, judicial review.

- De novo review. This involves going outside the framework: media, UN HRC, MP,lobby, get Parliament to change the law. These recourses may seem very unusual, butthey are actually quite standard in Western countries. This is a challenge to the rulestructure, not to the application of the rules.

A case likeBellis an important but rather small fraction of the whole structure of administrativeaccountability.

B. Program expenditures

Our introduction to this field will be the welfare regime. Most democratically electedgovernments get elected by spending money on sufficiently large constituencies. Realpolitikinvolves taxing enemies, either directly or through law (see below). Taxation and subsidy aretools of regulation. Taxing wealth, consumption and income, which are either proportional orflat, continuous or one-off, aiming at different actors does not have the same effects.

In addition to across-the-board taxation, there is so-called tax expenditure. These are targetedtax exemptions to favour narrow constituencies. Ex.: GST rebates for low-income earners,

deductions for RRSP contributions, income tax breaks for settling researchers in Quebec,tariffs. Frequently, they happen through contractual agreements between governments and

19


20/41

particular people, usually businesses (one ex. is waivers of Bill 101 in Quebec for someexecutives!). Tax breaks for businesses are common industrial strategy.

The other side is direct expenditure, subsidy. There are both direct and indirect forms ofsubsidy. Direct subsidy is giving money directly, providing cheap loans, loan insurance.

Indirect forms of subsidies are probably the most pervasive: State program to look aftersomething paid for by employers elsewhere (ex. medicare), limit application of EPA or LabourCode, government procurement, exclude tort liability, affirmative action targets to obtainmoney (ex. universities that want money from SSHRC), create property rights (pharmaceutical

patents), quotas and tariffs in some cases, etc. The idea is to externalise some costs of doingbusiness outside of businesses (workers, government, environment). Almost every governmentdecision can be categorized as taxation or subsidy.

The range of instruments can be plotted against the targets of government: food, shelter, health,education, child rearing, disability, employment, retirement, income support, welfare. This ismost of the people-oriented social policy.

C. Social Welfare State Ltat-Providence

Imagine the Minister of Finance having an extra $100 million in coffers to spend. Possibilitiesare health, education, income support, welfare. Results in the class are health 12 (40% 2003class), education 21 (50%), income support 4 (10%), welfare 6 (0%). Welfare does not

belong in the list in a way, because it is narrowly focussed, whereas health, education andincome support are at least designed to be universal. The facts may be different than what thedesign intended: universal looking legislation can produce unequal effects (efficacy / effectivitychasm), for ex. maybe education is not as universal. Macdonalds thesis is that these programsare trickle-up / tornado up economics which disproportionately do not advantage the poor.

What is it about universalistic programs that makes them more attractive in a Faculty of law,beyond mere self interest? One possibility is that these programs seem to have an ulteriorobjective: investment in better health, literacy, etc. However, the image of welfare is that it isnot producing any social goal. Interestingly, all social legislation such as the Canada Health

Acthave preambles, not a single welfare statute does. What would have to be said about welfarefor it to enter the cosmology of the other programs?

Images of welfare

Job re-entry, employability Support (not tied)

Shame, guilt Charity (for a good person, there is a sinner)Kaldor-Hicks efficiency (buy out the losers) Entitlement

Conditional (deserving poor) Unconditional (wage)

First resort Last resort

Temporary, transitional (ex gratia) Permanent (interest free with clawback)

Deferred investment

For market-types, the justification of welfare is buying out efficiency gains. For socialists, thetheory is much more redistributive (rawlsian justice, pay out losses and advantage least well-offmost) this is the idea of progressive income tax. If the dominant image of welfare wasredistributive or K-H efficiency, many other understandings of welfare would not be part of

public discourse. Other reasons are appearance of productivity, valuation of success andindependence, etc.

20


21/41

D. Discretionary Justice

Judys story Shes a lawyer but cant hold a job. Her family is pressuring her to become moreindependent, as she lives with her mother. She moves out and applies for welfare. Which

arguments could be used under s. 12 of the Alberta act? Shes tried to work. Shes a grownadult. Its more efficient. There is a general rule. Attempt to provide social welfare on thecheap. Its tantamount to indirect taxation. When Macdonald pled this case in Quebec, he triedall of these arguments unsuccessfully and got hostile answers. We also look at the case of thealcoholic employee not being disciplined. Ironically, discretion is exercised in this last caseeven if it is non-existent legally.

Rawls or Kaldor-Hicks are not in the legislation: we find charity, temporary, condititional, lastresort There is a detailed regulatory regime overlain with broad discretion and littleguidance as to how to use it. Every decision involves discretion, none is automatic. Thechallenge is to organize the exercise of discretion. It always exists, but the outcome varies.

May 24th, 2006

Class 10: Criminal Injuries Compensation as a Redistributive Process


A good way to drive home yesterdays lessons are to contrast student aid and welfare. Howwould we organise a welfare scheme if we were to adopt the student aid scheme and vice-versa?

Tax expenditures and subsidies in student aid: subsidized tuition infrastructure institutions,tax credit on interest on student loan, tuition deduction, room and board deduction, grants,interest-free loans, scholarships, subsidized transit, RESPs, RRSPs.

Compare this to welfare: one program and ministers discretion. Perhaps one could re-designthe welfare system in smaller compartments. Even collateral programs, such as subsidizedhousing, fall under ministers discretion.

B. Allocation and Discretion

Discretion also pervades criminal injuries compensation systems. Many of the formal

controls on discretion are present in CIC schemes (ex. political accountability), but the informalcontrols (ex. policy manuals) are simply not there, as the minister often has full discretion. Towhat extent building an infrastructure, such as a commission, agency or board, is morelikely to create an informal normativity?

For present purposes, we will assume that the offender has been convicted. We can think of thisfrom the perspective of the victim and from the perspective of the offender. A considerable shifthas occurred in the last 25-30 years. Three decades ago, the victim was a mere token in acriminal trial and sentencing process, with no services or support. Beginning with criminalinjuries compensation, the place of the victim got larger in the criminal nexus.

The five objectives of punishment in criminal law are deterrence, rehabilitation, retribution,prevention and denunciation (a recent add-on). The tools to do this are capital punishment,

21


22/41

torture, corporal punishment, forced labour, stocks, solitary confinement, jail, banishment,house arrest, fines, community service, restitution, psychological therapy. The list is long.These types of activities dont line up equally with all the principles of punishment, they mostlyaim at retribution (which dominates in polls).

How many of these speak to compensation? Few, restitution (provided for in the CriminalCode) and maybe community service. Other options are tort, compensation fund (with orwithout moral hazard component), self-insurance. Subsidized prosecution and police work are aform of service to victims, although not compensation.

The problem with tort is that when the defendant is impecunious, that is the rationingmechanism. In insurance, its affordability, deductible and cap (contractual limits). For Statecompensation programs, its caps, moral hazards, (hopefully targeted) rationing of payouts (filein January!).

C. Victim Services and Moral Hazard

There is now a relatively broad range of victim services. The trial process has also beensomewhat modified (ex. victim impact statements). There is a move from compensation ascorrective justice to distributive justice. The practice, unfortunately, is that State mechanismsare drastically underfunded.

TheDalton case is there to show how courts and boards may have a different perspective onmoral hazard.

D. Problem: Saskatchewan Victims of Crime Act

Committee #1: s. 14(1) (identity of decision-maker)Good to keep it from civil and criminal trials. So the question is maintaining the minister in his

position or creating some board. One is more flexible, the other is theoretically lessdiscretionary. Need to know which resources are available, what the caseload is, do acomparison of other jurisdictions.

Committee #2: s. 16 (scope of discretion)Create an actuarial formula superimposed over a consistent shopping list. Workerscompensation regimes have actuarial tables (problem of inflation). Torts work in a verydifferent fashion. Eligibility requirements may be reformed (moral hazard?).

Committee #3: s. 7 / 3-5 regulations (financing)Us! See sheet. Macdonald mentions the proposed taxes on beer, guns, violent movies,expropriation of profits from depiction of crime.

Committee #4: s. 8(1) ($25,000 cap)Does the cap meet the need of most victims? If so, discretion to occasionally go beyond itwould be appropriate. If not, re-evaluation would be necessary. The purpose of compensationwould have to be considered. Differentiating on the basis of crime may be done. The tort systemmay give some sense of what is needed (but the awards are unbearable for the public scheme,cant have a one-size fits all).

Committee #5: s. 8(2)-(3) (classes of eligible monetary losses)

22


23/41

Adding pain and suffering, reasonable (rather than exceptional) counselling, dont addeconomic losses ($140B of Enron!). Past decisions would be needed to determine interpretationof sections.

Committee #6: s. 13(1)-15 (filing conditions)

Unreported crime is a problem. The initial frame of mind was a random mugging it works forthis but doesnt for domestic violence. But compensation can also be seen as an incentive forreporting.

Committee #7 (offences for which compensation is payable)Currently, only criminal (no regulatory) offences are covered. Another issue is whethereconomic crimes should be included. An issue is also that the surcharge crimes dont mapexactly the compensable crimes (participating in a riot, setting a trap, bestiality). Could asurcharge on crime against animals be paid in to the SPCA? As of the late 1990s, preventionand other related programs have been included in such schemes.

Committee #8 (use of the victims fund)Guidelines or some structure to frame the ministers discretion would be useful. A consultativecommittee could also serve this function (more and more common in statutes).

May 25th, 2006

Class 11: The Public Protector: Formal and Informal Accountability


One significant implicit line of inquiry is if you dont know what youre talking about, youcant understand the statutory regime. The assumption of law floating disconnected from fieldsof human endeavour is wrong. If we are to have judicial review of administrative agencies,knowledge is paramount. Specialized courts are useful for this.

There has been a significant re-think of the criminal justice process, moving away fromoffenders and towards victims. At the same time, there has been a great re-think of and moveaway from tort law (most comprehensive ex. in New Zealand, no longer any law of tort for

personal injury from 1971 to 1998, now some tort law is back).

The original compensation schemes were set up in England under the royal prerogative:

completely discretionary ex gratia payments by the Lord Chancellors office. In Canada, it isdone either through boards and agencies or through a minister, provided for in a statute.

Major policy questions seen yesterday:- Setting up a scheme on an ad hoc basis or as a permanent structure (agency or giving

authority to a minister)?- Is compensation a price list or is it governed by general principles with discretion to the

decision-maker?- Is the scheme open-ended (like torts) or capped?- What types of damage are covered personal injury or property damage / economic

loss?

B. Why an Ombudsman?

23


24/41

This administrative process is directed to public administration itself as a regulatory field. Whydoesnt thePublic Protector Acthave a preamble? Not a single similar statute in Canada hasa preamble, suggesting that it is seen as in-house mechanics.

Both the appointment and the reporting make the Ombudsman a parliamentary commissioner. A2/3 majority is required, every initial appointment in Quebec has been unanimous. Harpershould have made his patronage commissioner a parliamentary appointee. The PP can makeindividual reports about specific persons or structures. There is also an annual report. All of thisgoes to the National Assembly directly. In Ontario, the HRC has been much criticized by theOmbudsman!

C. Character of the Institution

The Ombudsman has no executive power, cant order any action. He can only investigate,negotiate, conciliate. This involves vast discretion. There is a general public misperception of

ombudsmen in Canada: many people think s/he can right all wrongs. Its also difficult for non-lawyers to see the trichotomy of the PP: illegal action judicial remedy and ombudsman,maladministration no judicial review but ombudsman, Im unhappy no recourse. Drawingthe lines between those is difficult. Ombudsmen have a large education mandate.

S. 26.1 of thePublic Protector Actlists the grounds for intervention. Of the five, three (illegal,abuse of discretion, error of fact or law) give rise to judicial review, two do not (unreasonableor unjust, negligence). The language is cast very broadly because the targets of the Ombudsmanare broad.

Millions of events occur annually over which the Ombudsman has jurisdiction. Obviously, theOmbudsman is not supposed to have close connection to all these decisions. Hence theexclusions: other available legal remedy, limitation period lapsed, persons bound to act

judicially (courts, tribunals separation of powers), cabinet officers or deputy ministers inpolitical functions, within one year of event.

The design of the process is totally discretionary (s. 19(1)). Its a soft process (ss. 23-25) to bedone first in private and through cooperation if possible. The Ombudsman is also protected bymany immunities (no damages, disclosure, testimony, judicial review, ss. 30-35).

D. Outcomes, Process, Qualities

The Ombudsmans sanction is only publicity: requests, reports and public statements. He has nopower to order any redress. There are actually heavy constraints on the Ombudsmans rhetoricalpower: cant make public statements every second day.

Who should be picked to be Ombudsman? Should it be a lawyer, i.e. proficient in litigation,being able to recognize illegal action, knowledge of public law, commitment to deontologicalpractice, giving legal advice, advocacy skills, self-assurance / boat-rocking, practical,representation of individual clients? By comparison, good public servants la Willis should

be discrete, team players, focused on the system, have a different set of ethics, concerned withaction rather than with jurisdiction, conciliators, negotiators. Admittedly, these are ideal types.

24


25/41

Where would one look first for an ombudsman? The PPA gives guidance as to what thispersons mandate is. It depends on the circumstances: public servant for new Nunavutadministration, lawyer for the long-standing government of Nova Scotia. Historically, firstombudsmen were lawyers, the second were public servants, the third were lawyers, etc. Theshelf life of an ombudsman is about one term, as two opposite imperatives are balanced. Do you

want a person to solve a problem or fix a system? Sounds like a large law firm economicallyhedged with M&A and insolvency. Maybe the reason there is no preamble in the PPA is thatthe purpose is uncertain.

Shopping list of quality: impartial, independent, credible, solution-oriented, good at diagnostic,moderate ego.

E. List of Alternatives

Within the public service, there are many Ombudsman-like processes: Auditor General, PrivacyCommissioner, Official Languages Commissioner, Military Ombudsman, etc. All of these are

public structures; also ad hoc structures, such as public inquiries (case and systemic oriented).Whistle blowing legislation, suggestion boxes, tort law, BBBs, The Fifth Estate, companyombudsmen, ISO and other private operations also have a role to play. The role of theOmbudsman will depend on what other structures exist only one piece of the puzzle.

F. Maladministration

What is maladministration? Lack of transparency, redundancy, lack of mandate, rudeness,unresponsiveness, lack of qualification, dishonest, delay, nepotism, buck-passing (not my

job), lack of coordination, partisanship, red tape, inflexibility, personality problems, etc. Thesephenomena are everywhere. How many structures are immune? None. There are many suchproblems below the radar screen and much work remains in this area.

May 29th, 2006

PART IV: ALLOCATIVE, REDISTRIBUTIVE ANDOVERSIGHT PROCESSES: DISCRETION

Class 12: Statutory Instruments and Regulation:Ex ante Oversight


A few issues left in the air about the PP First, it was left unsaid why it was only in the 1960sthat this idea came up in CL jurisdictions. From the early 19 th C. in Scandinavia and the early1860s in France, equivalent ombudsman structures existed. Rowey points out that it wasassumed in a regime were the executive was responsible to Parliament that many oversightfunctions would be carried on by MPs. Two things undermined the MPs capacity to do this:

party discipline, decline in ministerial responsibility (ministers no longer resign if anything goeswrong). Second, who exactly is the PP for? Even in its short existence, the institution haschanged significantly. Initially, it was seen as a surrogate MP, today it is seen as also havingresponsibilities towards the civil service and the government. Hence the tension: fix the system

or solve the problem?

25


26/41

B. Nature of Normativity

What is the range of institutions and processes by which, in any legal system, normativity isgenerated or expounded? Seen in Foundations. Macdonald suggests that four basic types ofnormativity exist in his Background note: textual instruments designed by institutions (ex.

statutes), inferred instruments designed by institutions (ex. CL precedents), unwritten precisenon-institutional rules (ex. customs, trade standards, rules of thumb), unwritten broad non-institutional rules (ex. good faith, rule of law, fundamental justice).

Imagine just having been hired by McGill as a professor. One must mark exams. How does oneknow how to mark, grading scales, patterns for allocating marks? What would enter in theanswer of this question?

- Policy of Faculty- Talk to others- Your history- Dogma of the bell curve

- Feedback in course / general impression- Personal values- Make a grid

How can these things be justified in law?- Royal Charter- Statutes of University- Ministre de lenseignement suprieur regulations- University regulations- Senate regulations- Faculty regulations- Handbook of policies for academic staff- Instructors manual- Decanal memo- Co-examiners- Examinations committee- Faculty marks meeting

All of these are of many different types and may be conflicting in some instances. The firstthree are legislation in Canadian law, the next 2 or 3 are regulations (question: how deep in thedelegation chain does formal law penetrate?).

Yet, new professors probably read no higher than Faculty regulations. Theyll consult Facultypolicies, talk to other, read decanal memos, listen to co-examiners (the last two are ex post).

How do we figure out the way to get all of these components to be accounted for? That is thisweeks question. Yet, typically, administrative law textbooks go no further than regulations,even though other elements provide the juice to the regulatory field.

C. Kinds of Legislation

Constitution, codes, statutes, regulations Many things dont meet the test for legislation:directives, policy statements, interpretation bulletins, OICs, in-house manuals, rules,

conversations at 4 PM. Out of all of the above possibilities

26


27/41

D. Why Delegated Legislation?

We run straight into the diceyan conundrum. If you want a complex body in a complex fieldlike the CRTC to do something, there are two extreme possibilities with many possibilitiesin between: discretion and rules.

The mantra of cutting back on discretion is: cut back (eliminate it), confine (substantivestandards and criteria for exercise), structure (procedure, conditions for exercise), check (inhouse or judicial review). Confining and structuring discretion can be done with all the thingswe mentioned above. But people like McRuer had legislative instruments in mind for this

purpose. Given limited legislative time, the power to create the regulations is delegated to someother body. Yet, the diceyan critique is that too much legislation is being made by someone elsethan Parliament. You cant have it both ways, except in the case of deregulation.

What is the justification for delegated legislation, i.e. for someone else than Parliament tospecify details? Expertise; Time; Division of labour; Political expediency; Flexibility;

Clarity. These rationales signal that not everyone is an appropriate delegate and also that not allpowers need to be delegated. Regulation-making is not a one-size-fits-all panacea.

Who?- Governor-in-Council (i.e. cabinet), probably above 90% of delegated powers (little time

or expertise directly, but secrecy, solidarity, elected accountable members).- Minister, maybe 5%.- Agency (expertise, flexibility, division of labour rationales), usually with a GIC veto.- Director of an agency.- Municipalities, normally no GIC veto.- School boards, id.- Courts (rules of practice), id.- Private companies (CP, CN, CSL, AC).- Fire Marshall.

The next questions that have to be asked are: how and what?

D. Statutory Instruments & Regulations

There are two important definitions:- In the Ontario Regulations Act: regulation is a rule of a legislative nature made by a

closed list of delegates.- No province in Canada has a Statutory Instruments Act like the federal government,regulations being a subset of those. There, a regulation is a statutory instrument madeunder a power conferred by Parliament. In both cases, the key issue is that it is of alegislative nature.

But how many cows make a herd? When is an instrument narrow enough so that it is no longera legislative instrument (notwithstanding general language). Courts have said that form is notdeterminative to identify legislative instruments. Narrowly targeted delegated legislationgoes against a CL presumption.

Other powers, including the Royal prerogative, are not legislative, yet such orders,proclamations, etc. fall in the broad category of statutory instruments. But the definition

27


28/41

presupposes a verbal form (pictures on cigarette packs or music scores for O Canada dontwork) for statutory instruments (done in legislation).

May 30th, 2006

Class 13:Ex postReview of Micro-legislation


We have been exploring how governance power can be subjected to the discipline of anormative framework aiming at due process, substantive justice and legitimate authority. S. 6 ofthe OntarioRegulations Actgives the Minister the power to determine whether something is aregulation for the purposes of the RA, bypassing the statutory definition and with a privativeaspect. S. 5 gives the Minister power to extend publication time, s. 4 says that an unpublishedregulation is of no effect unless the Minister overrides it. The SIA has a similar structure. S.20(a) says that the Minister can exempt statutory instruments or regulations from application of

the SIA. This power has been much used in the past few years for counter-terrorism legislationand regulations. The lesson is that there is no statutory regime conceivable that will cover allcases without exceptions. Its usually conceded that theSIA is a better way of dealing withexceptions as exceptions have to be published as a regulation (only a potentially secretdeclaration in theRA), it also does not provide for blanket exemptions.

S. 4 of the SIA provides for determination of the status of an instrument that is questionably aregulation by the Deputy Minister of Justice. This is an important ex ante control, which in

practice allows the Department of Justice to give advice. S. 8 gives the GIC power to revoke aninstrument after it was made. This rarely happens, usually the GIC will just pass another

regulation but its useful when its another body regulating.

B. Ex Ante Controls

There are different kinds of mechanisms constraining regulation-making authorities, some ofwhich are legal, political, judicial, public and parliamentary.

Legal Filing (s. 3-4 SIA) Registration (s. 5) Publication (s. 9)This pattern is followed consistently in the CL world.

Political control comes under many forms. Sometimes, the Minister can impose or strike

regulation. Sometimes, s/he will present a position at hearings. One interesting way this is doneis through policy speeches by ministers, when agencies wont budge.

One would normally not think that courts are an ex ante control in law-making. One type ofexception is that there is a very narrow ground for getting a writ of prohibition against issuanceof regulation (if a legal pre-condition exists, ex. public hearing). This happens in regulatedindustries and was argued successfully once.

The ex ante control by the public usually occurs because of statutory requirement of a formalrule-making hearing. There are also informal mechanisms, which are a double edged sword:lobbying and special-interest co-opting (back door approach to consultation) or open to

everyone and balanced; viz. the process of negotiated regulation.

28


29/41

Parliamentary control is referred to in s. 19 of the SIA. There is a joint Senate-House ofCommons standing committee which automatically reviews all regulations. It produces a fairlycomprehensive annual report.

C. Ex Post Controls

One legal ex. is that the SIA gives the GIC power to revoke regulationsex post. There is also atype of political control as well, as the GIC may disapprove regulations for political reasons as

permitted by specific statutes.

The principle ex postcontrols talked about in Faculties of Law come through judicial review.Its principles percolate throughout the other mechanisms (bargaining in the shadow of thelaw), but it is unimportant in terms of volume. The principle doctrines are:

- Any regulations passed by virtue of an ultra vires statute or which is contrary to theCharterare void.

- Conditions precedents (ex. public hearings, ministerial approvals) and conditions

subsequent (ex. filing, registration, publication sometimes an authority thinks aninstrument is not a regulation or is exempted) must be followed.

- Regulations must themselves be intra vires of the enabling statutes.- Implied limitations (CL doctrines such as good faith, non-discrimination, non-

retroactivity, no sub-delegation, and others outlined by Driedger).It is surprising how few cases contesting regulations actually go to court (no more than a fewhundred a year). The most contested are those generated by self-regulating professions andagricultural marketing boards.

D. Exercise on Regulation-Making Powers

The Broadcasting Act includes a declaration of broadcasting policy for Canada. There is afurther declaration that the broadcasting system is a single system regulated by a single publicauthority. Part III of theBA creates the CBC. Paradoxically, the CRTC is created in the CRTC

Act, although theBA is mostly about the CRTCs powers. The reason for this is historical: untilthe 1950s, the CBC was the regulator (until the 1920s, it was the Railway CabinetCommittee!). The Radiocommunication Act is also important. The Board of BroadcastGovernors was created in the 1950s (precursor to the CRTC).

Part II of the BA enounces the mandate of the CRTC. It has several objectives, includingfurthering the broadcasting policy but also telecommunications regulation. The CRTC is given

the power to issue regulations, guidelines, orders, etc. (s. 6, 10, 21). Macdonald recommendsreading theBA to s. 51 to identify the seven different regulatory players and all their tools.

1. a) Is it a regulation or is there a form of sub-delegation through a directive?c)Delegatus non potest delegare.d) It would not be a regulation, so the implied limitations dont apply and sub-delegation isallowed.e) It would be of a legislative nature, so it is probably a(n invalid) regulation.

3. Such a directive could be passed.d) The CRTC has complied, but the President of the CRTC wont be around for much longer

May 31st, 2006

29


30/41

Class 14: The CRTC as a Policy Hybrid


The general question is that in the making of delegated legislation, there is a delegation ofpower. Why are there ex ante and ex postcontrols? Four or five ideas float to justify this:wish for process transparency; direct accountability; accessibility of the process(regulations are readily available); procedural fairness (including participation,

justification). All of these things are part of one conundrum of modern governance: therecomes a point were the scale of action is beyond the capacity of people to interact directly.Delegates, intermediaries are necessary. Its much easier to run PEI than Canada The SIA isdesigned to create a sense of engagement. Commercial media does not follow delegatedlegislation much regulation makers have to be proactive.

The objectives are to do what is substantively right and reducing to the minimum chances of

misunderstanding through the use of conventions of the readership, mostly lawyers and judges(that may reduce intelligibility to the public though).

B. Theories of Regulation

What position should we take as to the organisation of a specific activity? We are studying thefield of broadcasting and telecommunication specifically, although this is a much broaderquestion.

The underlying question is why should we regulate the economy? This question arose

prominently in the 1970s with the Chicago School challenge to regulation. Posnersassumption was that markets were most efficient, regulatory strategies only being needed incases were markets fail. Politics / government is seen as one way to achieve an agenda, marketsas another.

The Marxist poll gives much weight to politics, little to markets. The night watchman pollgives little weight to politics, much to markets. Most debate in liberal democracies acceptssome of both and asks the question of how much of each?

The Chicago School model is that markets should be used unless they fail. Another positionsays that there is no such thing as a natural occurring market and that infrastructure is needed,

i.e. public goods which the State provides. Some more politics-leaning thinkers say that thisleads to conclude that free markets are actually a political construct and the choice is

predominantly political. There is relatively broad agreement on what is needed to sustainmarkets and governments and that markets are, ceteris paribus, preferable to commandand control. There is also a fairly broad agreement on things that should not be in a market(babies) and things that should (choice of spouse). What is it that suggests to us that a market isdesirable for spouses but not for babies?

Trebilcocket al. point out standard market failure examples:- Natural monopolies (best ex.: public utilities, such as electricity or gas distribution).- Prohibitive costs of entry.

30


31/41

- Destructive competition (ex. agriculture, farmers keep farming even if they are losingmoney, but family farms only get about 10% of subsidies; labour, downward spiraltheory).

- Information costs (ex. healthcare, legal or accounting professionals, value ofsecurities even this information is intermediated).

- Uncertainty and risk(ex. dont know if electrical equipment is safe).- Externalities (transfer of cost of production unto someone else, ex. pollution).Its not clear that command and control mechanisms are the most effective to deal with marketfailure, perhaps other instruments are preferable.

The theory of economic regulation is about allocation. Social regulation aims at distribution,not just allocative efficiency, ex. graduated income tax. The claim by Posner, Trebilcock andothers is that the claim for efficient allocation policies is weak. But this says nothing aboutsocial regulation.

Social regulation is usually justified by values (OHRC), culture (MAPL for music),

language (Bill 101), social solidarity (welfare) and sthetics. One knows such structures areinefficient on market grounds, but the justificatio

323-Macdonald Administrative Process Winter 2006

Documents

Transcript of 323-Macdonald Administrative Process Winter 2006