Administrative Law Values VI: Remedial Discretion
I have a new essay on SSRN, “Administrative Law: A Values-Based Approach“, prepared for the inaugural Public Law Conference at the University of Cambridge later this year. This is the latest in a series of mini-posts. Download the whole essay here.
Remedies have posed a problem for administrative law since waves of doctrinal reform began to stir in the middle of the twentieth century. Certiorari was once said to issue ex debito justitiae (at least in some cases), but refusing to countenance remedial discretion as the territory of judicial oversight and grounds for intervention expanded would have been problematic. Hence Beetz J.’s conclusion that the “expression, albeit Latin, has no magic virtue and cannot change a writ of grace into a writ of right nor destroy the discretion even in cases involving lack of jurisdiction”. The problem of grafting new grounds of a more expansive judicial review jurisdiction onto the superstructure of the prerogative writs has been addressed by the use of administrative law values to guide the exercise of remedial discretion. And it cannot be overlooked that “excruciating factual problems” often arise in this area of the law: these too must be addressed somehow.
In an elegant essay on remedial discretion, Peter Cane argued that remedial choices were influenced by the separation of powers. For example,
…when a body has the power to revise decisions of a decision maker who performs a different function from that performed by the reviser, so that the two bodies are not seen as belonging to the same decision-making hierarchy, it is much less appropriate that the reviser should have the power to make orders in substitution for decisions of the inferior decision maker.
Yet on the next page, the principles of good administration made a defiant appearance:
To the extent that the power to make particular types of decisions has been given to a decision maker because it possesses certain qualifications, experience and competences, it would be wrong to give a power to revise that type of decision by making a substitutionary order to a body in a different decision-making hierarchy which lacked some or all of those qualifications, experience and competences.
John Donaldson M.R. was emphatic in his discussion of remedial discretion in R. v. Monopolies and Mergers Commission, ex parte Argyll Group: “We have to approach our duties with a proper awareness of the needs of public administration”. In R. v. Chief Constable of the Thames Valley Police, ex parte Cotton, Bingham L.J. set out six principles governing remedial discretion in public-law cases. Several concerned good administration. For example, with respect to the idea that relief should not be granted where the decision-maker would have reached the same decision regardless of the error complained of, “[u]nless the subject of the decision has had an opportunity to put his case it may not be easy to know what case he could or would have put if he had had the chance”, because “experience shows that that which is confidently expected is by no means always that which happens”; and, in any event, “[t]his is a field in which appearances are generally thought to matter”.
One overlapped good administration and the rule of law: “It is generally desirable that decision-makers should be reasonably receptive to argument, and it would therefore be unfortunate if the complainant’s position became weaker as the decision-maker’s mind became more closed”. Another was drawn from the rule of law (“Where a decision-maker is under a duty to act fairly the subject of the decision may properly be said to have a right to be heard, and rights are not to be lightly denied”) and one other from the separation of powers, invoking a danger of the court “unconsciously stray[ing] from its proper province of reviewing the propriety of the decision-making process into the forbidden territory of evaluating the substantial merits of a decision”.
Judicial decisions when to issue a particular remedy may, thus, be guided by administrative law values. Consider the remedy of the mandatory order (mandamus), which has the effect of requiring a decision-maker to take a particular decision. Separation-of-powers and democracy concerns are evidently implicated, as the reviewing court must step into a pair of shoes that were set aside by the legislature for another body. Yet in some circumstances, rule-of-law and good-administration concerns may point strongly in favour of issuing the remedy.
The applicant in D’Errico v. Canada (Attorney General) had suffered injuries in a car accident but was denied a disability pension, apparently on the basis that she had been taking yoga classes and working as a yoga instructor. Stratas J.A. quashed the decision and also made an order of mandamus.
Quite properly, he noted that mandamus will only be issued in exceptional cases. In determining that this case was exceptional, he focused on administrative law values. From a rule-of-law perspective, he emphasized the importance of the claimed benefit to the applicant and the deleterious effects of further delay. The benefits were “meant to address a very serious condition, one that prevents the earning of meaningful income to sustain oneself”, yet the applicant had been waiting eight years for resolution of her claim. He then focused on good administration. Ordinarily, administrative decision-makers reach appropriate outcomes more quickly and efficiently than courts. But remitting a matter for further decision where the outcome is obvious would hurt good administration, not help it. Democracy was not a pressing concern here: although the decision-maker had been designated by Parliament, it had not discharged its functions in a timely manner. And any separation-of-powers concerns about directing the decision-maker to reach a particular outcome were outweighed by the rule of law and good administration concerns.
Ordinarily, an applicant who can demonstrate that a decision was unlawful is entitled to relief. A particularly stirring statement of principle comes from Le Dain J. in Cardinal v. Director of Kent Institution:
[T]he denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.
Rule-of-law concerns are foremost in this analysis, unsurprising given that the case involved procedural fairness. Yet concerns of good administration counsel that, in some cases, courts should refuse to exercise their discretion to award a remedy As Lord Wilberforce noted in Malloch v. Aberdeen Corporation, there must be “something of substance which has been lost by the failure. The court does not act in vain”.
An example is Mobil Oil Canada Ltd. v. Canada‑Newfoundland Offshore Petroleum Board, where although the applicant had established a breach of procedural fairness, the remedies sought were “impractical”; compelling the decision-maker to reconsider its position would have been “nonsensical” as it was “bound in law” to reject the application because of the Court’s disposition of other aspects of the case. In these “exceptional” circumstances, Iacobucci J. concluded, relief would be inappropriate.
Iacobucci J. also quoted from a passage from the sixth edition of Professor Wade’s text on administrative law to the effect that breaches of natural justice may be disregarded where the claim is in any event meritless. As has been noted, however, there is a difference between a case being legally hopeless – the situation that arose in Mobil Oil – and one being factually hopeless – a situation encompassed by the breadth of Professor Wade’s description. But there is no reason to exclude the possibility that concerns of good administration might outweigh rule-of-law concerns about individual interests in cases where the outcome is factually inevitable. Relief was refused in R. v. Monopolies and Mergers Commission, ex parte Argyll Group partly because of “the probability that deals have been done in reliance on the validity of the decisions now impugned”.
The tension between the rule of law, good administration and democracy is keenly felt in cases where the applicant did not take advantage of an alternative remedy. As a general matter, Lord Scarman put it in In re Preston, “a remedy by way of judicial review is not to be made available where an alternative remedy exists”. As Lord Templeman explained, in cases involving taxation matters, “the remedy of the taxpayer lies in the appeal procedures” before bodies with “wide knowledge and experience of fiscal law and practice” provided for by statute. Good administration requires that judicial review processes “should not be allowed to supplant the normal statutory appeal procedure” save in “exceptional” circumstances. Democracy plays a part too: “When Parliament enacts a remedy with the clear intention that this should be pursued in place of judicial review, it is appropriate to have regard to the considerations giving rise to that intention”.
Consider Harelkin v. University of Regina, a case in which a student was denied procedural fairness by a university committee and sought judicial review instead of pursuing an appeal before the university senate. Concerns of good administration and democracy were invoked to deny relief. Beetz J. held that to treat the initial decision as a nullity would “produce undesirable practical effects” leading to “inconvenient and impractical results”. Having considered the “procedure on the appeal, the composition of the senate committee, its powers and the manner in which they were probably to be exercised” as well as “the burden of a previous finding, expeditiousness and cost”, Beetz J. concluded that the student’s rights could be vindicated by an internal appeal: “There is thus no jurisdictional lacuna in the senate committee which could have prevented it from giving full justice to appellant”: “all of appellant’s difficulties could have been resolved fairly, within a reasonable time and at little cost to himself and the university had he simply wanted to use all the remedies put at his disposal…” In addition, it was significant that an appeal had been provided for by “the legislature in its wisdom”: the applicant could not “complain that his case be decided by the body whom the legislature has placed in the superior position”. Good administration and democracy proved to trump rule-of-law concerns in this context.
Collateral attacks on administrative decisions also require reference to administrative law values. Good administration is rarely enhanced by collateral attacks on administrative decisions:
A complaining party may be successful in vindicating his rights in the administrative process. If he is required to pursue his administrative remedies, the courts may never have to intervene. And notions of administrative autonomy require that the agency be given a chance to discover and correct its own errors. Finally, it is possible that frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures.
Nor is democracy, especially in cases where time limits or procedural restrictions have been imposed on access to judicial review, because collateral attacks frustrate “the legislature’s decision not to confer the power to hear an appeal from the administrative order on the court responsible for hearing the charge”. Nevertheless, rule-of-law concerns require that collateral attacks be permissible in some instances. In Boddington v. British Transport Police, a case involving a rail passenger who wished to contest the validity of a bye-law prohibiting smoking, the House of Lords permitted him to raise the invalidity of the bye-law as a defence to a criminal prosecution: “It would be a fundamental departure from the rule of law if an individual were liable to conviction for contravention of some rule which is itself liable to be set aside by a court as unlawful”. Democracy too may bolster these rule-of-law concerns in rare cases. So it was that where the mayor of Toronto was threatened with the “draconian” remedy of removal from office for a breach of conflict of interest legislation, a collateral attack on the underlying order was permissible. And in some circumstances, good administration will not necessarily be undermined at all by permitting judicial review proceedings.
In those fuzzy areas on either side of the public/private divide, similar issues regularly arise. Generally speaking, it would “be contrary to public policy, and as such an abuse of the process of the court” to allow a person to attack by way of action an administrative decision because this would “evade” provisions introduced “for the protection of such authorities”. Yet, if an individual seeks to assert private-law rights against a public body, he or she will not be required to launch judicial review proceedings. Where good administration and democracy would be undermined because the case involves “a claim for judicial review with only a thin pretence to a private wrong”, courts should use their inherent powers to prevent an inappropriate claim from proceeding. Where no bright lines are apparent, resort to administrative law values becomes irresistible.
 Harelkin v. University of Regina,  2 S.C.R. 561, at p. 576.
 Lord Cooke of Thorndon, “The Discretionary Heart of Administrative Law” in Christopher Forsyth and Ivan Hare eds., The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade QC (Clarendon, Oxford, 1998), p. 203, at p. 215.
 Peter Cane, “The Constitutional Basis of Judicial Remedies in Public Law” in Peter Leyland and Terry Woods eds., Administrative Law Facing the Future: Old Constraints & New Horizons (Blackstone, London, 1997), p. 242, at p. 246.
 Peter Cane, “The Constitutional Basis of Judicial Remedies in Public Law” in Peter Leyland and Terry Woods eds., Administrative Law Facing the Future: Old Constraints & New Horizons (Blackstone, London, 1997), p. 242, at p. 247. This is said to be particularly true of quashing orders (ibid. at p. 256) and substitutionary orders, which “should be issued against bodies in different decision-making hierarchies from that of the issuer only in instances where the issuer has some special qualification, competence or experience relevant to the making of the decision in question” (ibid. at p. 262).
  2 All E.R. 257, at p. 266.
  I.R.L.R. 344.
  I.R.L.R. 344, at p. 352.
  I.R.L.R. 344, at p. 352.
  I.R.L.R. 344, at p. 352.
 2014 FCA 95. See similarly, Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55.
 2014 FCA 95, at para. 17.
 2014 FCA 95, at para. 19.
 See e.g. Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61,  3 S.C.R. 654, at para. 55: “remitting the issue to the tribunal may undermine the goal of expedient and cost-efficient decision making, which often motivates the creation of specialized administrative tribunals in the first place”.
 2014 FCA 95, at para. 21. Multi-factor tests can mask the reality of the operation of administrative law values. It is refreshing that Stratas J.A. did not engage in a rote recitation of the lengthy and restrictive list of factors set out in the leading Canadian case on mandatory orders, Apotex v. Canada (Attorney General),  1 FC 742, affd  3 SCR 1100.
  2 S.C.R. 643, at p. 661. See similarly Lakeside Colony of Hutterian Brethren v. Hofer,  3 S.C.R. 165, at p. 222, a case involving individuals who were expelled from a religious sect because they had contravened the tenets of the group’s faith:
[I]t must be remembered that natural justice requires procedural fairness no matter how obvious the decision to be made may be. It does not matter whether it was utterly obvious that Daniel Hofer Jr., David Hofer and Larry Hofer would be expelled. Natural justice requires that they be given notice of a meeting to consider the matter, and opportunity to make representations concerning it. This may not change anything, but it is what the law requires.
This was so, even though as McLachlin J. pointed out in dissent, at p. 233: “Like Luther with Rome, the problem lay not in unfair procedures or lack of opportunities for hearing; the problem lay rather in the fundamental divergence between the parties, a divergence which doomed any proceedings, no matter how just, to failure”. See also General Medical Council v. Spackman,  A.C. 627; Annamunthodo v. Oilfields Workers’ Trade Union,  A.C. 945.
 Though, reflecting the individual nature of rule-of-law concerns, breaches of procedural fairness can be ‘cured’ through internal appellate mechanisms where “the parties should fairly be taken to have accepted when they joined the association”. Calvin v. Carr,  A.C. 574, at p. 593 (P.C).
 There may be some overlap between remedial discretion and the content of procedural fairness in some of these cases. For example, if an individual is in some way undeserving of a remedy, it might be said that their conduct obviated any alleged breach of procedural fairness or that the court is entitled to exercise its discretion to refuse relief. See Wade and Forsyth, Administrative Law, 10th ed. (Oxford University Press, Oxford, 2009), at pp. 424-425.
  1 W.L.R. 1579, at p. 1595.
  1 S.C.R. 202.
  1 S.C.R. 202, at p. 228.
  1 S.C.R. 202, at p. 228.
 See Peter D. Ruby, “Remedial Discretion: When Should the Court Right the Wrong?”, (1997-1998), 11 Canadian Journal of Administrative Law & Practice 259.
  2 All E.R. 257, at p. 266. See also ibid. at p. 272, per Neill L.J. Dillon L.J. (at p. 269) referenced the possibility of “serious detriment” to shareholders as a reason for refusing a remedy, primarily a reason of good administration though one which overlaps with a rule-of-law concern for the interests of individuals.
  1 A.C. 835, at p. 852.
  1 A.C. 835, at p. 862.
  1 A.C. 835, at p. 862.
 R. (G.) v. Immigration Appeal Tribunal,  1 W.L.R. 1445, at para. 20.
  2 S.C.R. 561. See also Reid v. Rowley,  2 N.Z.L.R. 472.
  2 S.C.R. 561, at p. 585.
  2 S.C.R. 561, at p. 588.
  2 S.C.R. 561, at p. 590.
  2 S.C.R. 561, at p. 593.
  2 S.C.R. 561, at p. 592. In dissent, at p. 613, Dickson J. assigned different weight to the competing values:
A defect in natural justice, on the part of the council, on the question of examinations is not, in my view, capable of being cured by the senate subsequently complying with the principles of natural justice. By statute, the appellant is entitled to fairness in both the scholarly forum of council, and in the lay forum of senate.
 McKart v. United States, 395 U.S. 185 (1969), at p. 195.
 See e.g. R. v. Wicks,  A.C. 92.
 R. v. Consolidated Maybrun Mines Ltd.,  1 S.C.R. 706, at para. 24.
  2 A.C. 143, at p. 154, per Lord Irvine of Lairg, L.C. See also Wandsworth London Borough Council v. Winder,  A.C. 461.
 Magder v. Ford, 2013 ONSC 263, at para. 58.
 See e.g. Sackett v. Environmental Protection Agency, 132 S. Ct. 1367 (2012), at p. 1374: “Compliance orders will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity”.
 O’Reilly v. Mackman,  2 A.C. 237, at p. 285, per Lord Diplock. These protections include time limits and restrictions on discovery and disclosure. As Woolf L.J. explained in R. v. Derbyshire County Council, Ex parte Noble,  I.C.R. 808, at p. 813: “Cross-examination and discovery can take place on applications for judicial review, but in the ordinary way judicial review is designed to deal with matters which can be resolved without resorting to those procedures”.
 See e.g. Roy v. Kensington and Chelsea and Westminster Family Practitioner Committee,  1 A.C. 624, per Lord Bridge of Harwich, at pp. 628-629:
[W]here a litigant asserts his entitlement to a subsisting right in private law, whether by way of claim or defence, the circumstance that the existence and extent of the private right asserted may incidentally involve the examination of a public law issue cannot prevent the litigant from seeking to establish his right by action commenced by writ or originating summons, any more than it can prevent him from setting up his private law right in proceedings brought against him.
 Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62,  3 S.C.R. 585, at para. 78.
This content has been updated on July 9, 2014 at 09:10.