Tribunals and guidelines: Exploring the relationship between fairness and legitimacy in administrative decision-making

Canadian Public Administration

Volumn 49, Issue 3, 2006, Pages 282-307

  Houle, France ^a   Sossin, Lorne ^b  

^a UNIVERSITÉ DE MONTRÉAL   (Canada)

^b UNIVERSITY OF TORONTO   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33750572105     PISSN: 00084840     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1754-7121.2006.tb01984.x     Document Type: Article

References (70)

1. Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] SCR 781 at para. 24.
2. Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry (Baton Rouge, Louisiana: Louisiana University Press, 1969), p. 4.
3. France Houle, "La zone fictive de l'infra-droit: l'intégration des règles administratives dans la catégorie des textes réglementaires," McGill Law Journal 47 (2001), pp. 161-94;
4. L. Pottie and Lome Sossin, "Demystifying the Boundaries of Public Law: Policy, Discretion and Social Welfare," University of British Columbia Law Review 38 (2005), pp. 147.
5. See Re Hopedale Developments Ltd v. Town of Oakville (1964), 47 D.L.R. (2d) 482.
6. By adjudicative, we refer to settings where an administrative body is empowered to function as a court-like body, hearing evidence, finding facts, applying legal standards, and imposing legal penalties. It is worth noting that Davis examined guidelines for the most part in law enforcement settings. For a discussion of the implications of guidelines in non-adjudicative settings in Canada, see Pottie and Sossin, "Demystifying the Boundaries." See also Lorne Sossin, "Discretion Unbound: Reconciling the Charter and Soft Law," CANADIAN PUBLIC ADMINISTRATION 45, no. 4 (2003), pp. 465-89
7. and "The Politics of Soft Law: How Judicial Review Influences Bureaucratic Decision-Making in Canada," in S. Halliday and M. Hertogh, eds., Judicial Review and Bureaucratic Impact: International and Inter-disciplinary Perspectives (London: Cambridge University Press, 2004), pp. 129-60.
8. On this classification, see France Houle, "La lecture des blancs dans le droit et la validité des règles administratives : essai sur deux modèles issus du positivisme juridique," in Y. Gendreau, ed., Le lisible et l'illisible (Montréal: Éd. Thémis, 2003), pp. 52-125.
9. Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 165: "The Refugee Protection Division and the Immigration Division and each Member of those Divisions have the powers and authority of a commissioner appointed under Part I of the Inquiries Act and may do any other thing they consider necessary to provide a full and proper hearing."
10. A copy of the Instructions for the Acquisition and Disclosure of Information for Proceedings in the Refugee Division (CRDD - Instructions 96-01), is found in the CRDD Handbook, chapter 1, Conduct of Refugee Division Proceedings, at Appendix 1D : http://www.cisr-irb.gc.ca/en/about/tribunals/rpd/ handbook.
11. Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 159(1): "The Chairperson is, by virtue of holding that office, a Member of each Division of the board and is the chief executive officer of the Board. In that capacity, the Chairperson : (h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons and the Director General of the Immigration Division, to assist members in carrying out their duties." A similar authority to issue guidelines existed under the former Immigration Act under sections 65(3) and (4) of the Immigration Act, R.S.C. 1985, c. I-2, as amended by S.C. 1992, c. 49.
12. In the "Hearing" section of the Handbook, at paras. 19-23.
13. In fact, there are several problems with the RPD assessment of evidence. See France Houle, "Le fonctionnement du régime de preuve libre dans un système non-expert: le traitement symptomatique des preuves par la Section de protection des réfugiés," Revue Jurique Thémis 38 (2004), pp. 263-358.
14. It is also important to mention that the values and predispositions of IRB decision-makers are critical to the outcome of these hearings. See, for a related discussion of the role of values in administrative decision-making in this context, G. Bouchard and B. Wake Carroll, "Policy-Making and Administrative Discretion: The Case of Immigration in Canada," CANADIAN PUBLIC ADMINISTRATION 45, no. 2 (2002), p. 239.
15. Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 159(1).
16. See the website of the IRB at http://www.cisr-irb.gc.ca/en/about/ guidelines/women_e.htm.
17. We are grateful to Audrey Macklin for highlighting the diverse nature of this coalition which cut across several communities of interest in the refugee process.
18. Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.
19. See Ottawa, Immigration and Refugee Board, CRDD Handbook, 31 March 1999, c. 18, ss. 18.2.2 at http://www.cisr-irb.gc.ca/en/about/tribunals/rpd/handbook. Some might argue that the chairperson took advantage of statutory criteria which were open to interpretation to establish a meaning of this provision which reflected her policy preference and the preference of those advocates who pressed for the change. To be sure, controlling the issuing of guidelines is an instrument for controlling policy. This is precisely why questions of legitimacy arise in this context.
20. Davis, Discretionary Justice, p. 4.
21. See, e.g., Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, at 7-8;
22. Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231.
23. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, para 56 (J. L'Heureux-Dubé).
24. Martineau v. Matsqui Institution, [1978] 1 S.C.R. 118.
25. Nicholson v. Haldimond-Norfolk (Regional Municipality) Commissioners of Police, [1979] 1 S.C.R. 311.
26. See also the antecedent to this decision in the United Kingdom: Ridge v. Baldwin, [1964] A.C. 40 (H.L.).
27. Bezaire v. Windsor Roman Catholic Separate School Board (1992), 9 O.R. (3d) 737 (Div. Ct.).
28. The concept of legitimate expectations in Canadian law have been held to function as a part of the broader duty of fairness and may suggest, where applicable, that a greater degree of fairness will be owed than otherwise would be the case: see Baker v. Canada (Minister of Citizenship and Immigration), para. 26. Two appeal courts in Canada have decided that procedural guidelines can give rise to legitimate expectations:
29. British Columbia (Securities Commission) v. Pacific International Securities Inc., [2002] 8 W.W.R. 116 (B.C.A.C.);
30. and Pulp, Paper & Woodworkers of Canada Local 8 et al v. Canada (Minister of Agriculture) (1994), 174 N.R. 37.
31. In one decision of the Quebec Appeal Court, judges were of the opinion that a guideline did not raise legitimate expectations in the particular case at bar, but judges did not reject the argument: Bachand et al v. C.S.S.T, (2004) J.Q. no 13311 (not published).
32. See also : Brunico communications Inc. v. Canada (Attorney-General), [2004] 252 F.T.R. 14;
33. rd) 252.;
34. Apotex Inc. v. Ontario (Minister of Heath and Long-Term Care), (2004) O.J. no. 1728 (OSC) (not published).
35. Thamotharem v. Canada (Minister of Citizenship and Immigration), [2006] F.C. 16, para. 94.
36. Thamotharem v. Canada (Minister of Citizenship and Immigration), 26 (1994), 21 O.R. (3d) 104 (C.A.).
37. For an historical account on the development of the use of precedents by common law courts, see Brian Simpson, "The Common Law and Legal Theory," in W. Twining, ed., Legal Theory and Common Law (Oxford: Basil Blackwell, 1986), pp. 8-25.
38. As Reid J. said in Home Services Employees International Union, loc 204 v. Broadway Manor Nursing Home (1984), 48 O.R. (2d) 22: "doctrine of stare decisis which prevails in the courts tends to the avoidance of conflict in their decisions and such conflict as does occur may be resolved by the mechanism of appeal. But the doctrine of stare decisis does not apply to referees, or arbitrators, or, for that matter, to administrative tribunals generally, nor are referees, or arbitrators, or administrative tribunals generally (there are exceptions) subject to appeal. These are characteristics of tribunals which legislators have created to provide what they believe to be for certain purposes more appropriate forums for decision-making than the courts."
39. IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282.
40. This view is shared by scholars, such as H. Wade MacLauchlan, "Some Problems with Judicial Review of Administrative Inconsistency," Dalhousie Law Journal 8 (1984), p. 446;
41. Suzanne Comtois, "Le contrôle de la cohérence décisionnelle au sein des tribunaux administratifs," Revue de droit de l'Université Sherbrooke 21 (1990), pp. 77-78.
42. Lefebvre v. Québec (C.A.S.), [1991] R.J.Q. 1864 at 1877 (our translation).
43. Domtar Inc. v. Québec (Commission d'appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756.
44. Domtar Inc. v. Québec (Commission D'appel en Matière de Lésions Professionnelles), Ibid., at 797.
45. Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557.
46. Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at para. 158.
47. An Act respecting administrative justice, R.S.Q., c. J-3, ss. 75, 90.
48. See An Act respecting industrial accidents and occupational diseases, R.S.Q., c. A-3.001 s. 382.
49. On the website of the IRB at http://www.irb-cisr.gc.ca/en, see Policy no. 2003-01, Effective Date: March 21, 2003.
50. See the IRB site: http://www.irb-cisr.gc.ca/en/decisions/persuasive/ about_e.htm. "Persuasive decisions are decisions that have been identified by the Deputy Chairperson of the Refugee Protection Division as being of persuasive value in developing the jurisprudence of the Division. They are decisions which Members are encouraged to rely upon in the interests of consistency and collegiality. The application of persuasive decisions by the Division enables the Division to move toward a consistent and transparent application of the law. It also promotes efficiency in the hearing and reasons-writing process by making use of quality work done by colleagues within the tribunal."
51. The IRB website cited in note 38 states: "It is necessary to emphasize that persuasive decisions are not decisions which have been designated by the Chairperson as jurisprudential guides pursuant to s. 159(1)(h) of the Immigration and Refugee Protection Act. Where a decision has been designated as a jurisprudential guide and the facts underlying the decision are sufficiently close to those in the case before a Member, then Members are expected to follow the reasoning in the jurisprudential guide. A Member must explain in his or her reasoning why he or she is not adopting the reasoning that is set out in a jurisprudential guide when, based on the facts of the case, they would otherwise be expected to follow the jurisprudential guide."
52. Capital Cities Communications Inc. c. CRTC, [1978] 2 S.C.R. 141 at 171.
53. See, for example, Hudson N. Janisch, "Consistency, Rulemaking and Consolidated-Bathurst," Queen's Law Journal 16 (1991).
54. National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324 at 1336.
55. See American Airlines Inc. v. Canada (Competition Tribunal), [1989] 2 C.F. 88 (F.C.A.).,
56. Manitoba (Attorney General) v. Canada (National Energy Board, [1974] 2 F.C. 502 (F.C. - Trial Div.);
57. IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282;
58. Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221.
59. For example, s. 162(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 159(1) explicitly states this principle.
60. R. v. Askov, [1990] 2 S.C.R. 1199 at 1231-1232.
61. Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869.
62. Motorways Direct Transport Ltd. v. Canada (Human Rights Commission), (1991) 43 F.T.R. 211.
63. Akthar v. Canada (Minister of Employment and Immigration) (1991), 129 N.R. 71 at 76.
64. Hernandez v. Canada (Minister of Citizenship and Immigration) (1993), 154 N.R. 231 at 233.
65. Canada (Minister of Citizenship and Immigration) v. Cortez, (2000) 181 F.T.R. 96, para. 17.
66. Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S,C,R, 307 at para. 17.
67. Canadian Airlines International Ltd. v. Canada (Human Rights Commission), [1996] 1 F.C. 638 (C.A.);
68. Nisbett v. Manitoba (Human Rights Commission) (1993), 101 D.L.R. (4th) 744 at 756-757 (Man. C.A.).
69. Canada (Minister of Citizenship and Immigration) v. Cortez, (2000) 181 F.T.R. 96 at para. 4.
70. For a broader discussion on other types of state regulatory experiments and guidelines, see France Houle, Les règles administratives et le droit public : aux confins de la régulation juridique (Cowansville, Qué.: Yvon Blais, 2001).