Rebottling Old Wine
A challenge for lawyers is to fit new concepts to old language. Law is in a constant state of flux, adapting always to new realities. Sometimes, however, doctrines change rapidly and without courts considering the knock-on effects on other doctrines.
The problem of tribunal reconsiderations of their decisions is an example. Say tribunals may reopen a decision duly reached because of a jurisdictional defect, a sensible approach that allows tribunals to avoid the time and expense that would inevitably be involved in permitting only a reviewing court to quash a defective decision.
In the old days, this rule was easy enough to apply. A tribunal without authority over one of the parties, or a remedy granted, for example, had fallen into jurisdictional error and could expect a stern reprimand and a writ of certiorari from a reviewing court. Perhaps more controversially, breaches of natural justice were also considered jurisdictional in this sense: a failure to hear a party would obviously justify a reviewing court in quashing a decision and so was treated as a jurisdictional defect, with the effect that a tribunal reconsidering a procedurally flawed decision could annul it itself.
But if “jurisdiction” no longer means what it used to mean, there is a problem. It is not clear what sorts of error a tribunal may correct in reconsideration proceedings. Nowadays, we understand jurisdiction in several ways. One way is that it is merely a label to describe a decision that a reviewing court can quash: a tribunal did not have “jurisdiction” because it failed to consider a relevant factor, or was unreasonable, or failed to observe the duty of fairness. This does not help the tribunal very much, unless it thinks it should, on reconsideration proceedings, step into the shoes of a reviewing court (a bad idea, as I argued previously).
Another way is that “jurisdictional” error is one type of error for which a decision can be quashed. In Canada, this is now a vanishingly small category of which the contours are unclear. Practically speaking, the Supreme Court’s guidance on “jurisdiction” is not clear enough to furnish a reliable benchmark for tribunals. Moreover, as a matter of principle, it is not designed to do so; the narrow conception of jurisdiction was adopted by courts to enhance the autonomy of administrative decision-makers by reducing the scope for aggressive judicial review. It does not make much sense for an administrative tribunal to rely on this understanding of jurisdiction (at least in Canada). There is an understandable tendency for courts to gravitate to this understanding, but it is a category error (as I explained previously). This is old wine that cannot be rebottled.
Instead, “jurisdiction” needs a new bottle (in this context). It has to be understood in terms of the functions of an administrative tribunal. If the general rule remains that a tribunal cannot change its mind about a duly-reached decision, the reconsideration power ought to be limited, perhaps to obvious procedural (proceeding without a hearing, failing to provide notice, etc) or formal defects (territorial authority, proper service of documents, etc) that can be rectified without a reconsideration of the substance of the decision.
A related recent Canadian example comes from the area of habeas corpus, in particular, the authority of provincial superior courts over inmates in federal institutions. Normally, decisions of federal institutions may only be challenged in federal court, not the provincial superior courts. But in a series of decisions in the 1980s, the Supreme Court held that habeas corpus proceedings can be brought in provincial superior court of various prison decisions impacting prisoners’ liberty. Relief could be granted against unlawful decisions. At that time, unlawfulness meant procedural unfairness, jurisdictional error and abuse of discretion.
Fast forward to 2014: Mission Institution v. Khela,  1 SCR 502, which addressed a new question: Does the fact that a decision was unreasonable in the administrative law sense open it up to habeas corpus proceedings in provincial superior courts? The question arose because the grounds of judicial review have expanded since the 1980s: a decision that is unreasonable is as bad, legally speaking, as one that is jurisdictionally defective. But reviewing the decisions of federal institutions for unreasonableness is classically the role of Canada’s federal courts. On this occasion, the Court poured the old wine straight into the new bottle:
 Including a reasonableness assessment in the scope of the review is consistent with this Court’s case law. In particular, allowing provincial superior courts to assess reasonableness in the review follows logically from how this Court has framed the remedy and from the limits the courts have placed on the avenues through which the remedy can be obtained.
Inmates can challenge detention decisions for unreasonableness in provincial superior courts. “Unlawfulness” now includes substantive unreasonableness: “a decision will be unreasonable, and therefore unlawful, if an inmate’s liberty interests are sacrificed absent any evidence or on the basis of unreliable or irrelevant evidence, or evidence that cannot support the conclusion” (at para. 73).
We could argue whether the habeas corpus example is different from the reconsideration example. On the one hand, there does not seem to be a category mistake, as the Supreme Court in 1985 and 2014 is analyzing the same question: what sort of defects allow a prison decision to be quashed? The concepts at issue were developed for the same purposes: identifying the scope of judicial review. On the other hand, if the idea in 1985 was to develop a safety valve to allow prisoners to challenge obviously flawed decisions in the most convenient venue, it is by no means clear that its logic extends to virtually any arguably flawed decision impacting a prisoner’s liberty interests. This certainly seems to limit the authority of the federal courts, something probably not intended by the 1980s-Supreme-Court. I tend to favour the former point of view, that Khela was rightly and logically decided, but I do know it is an example of the difficulty of rebottling old wine.
 I would like, finally, to address a rather confusing aspect of the chambers judge’s reasoning – his consideration of hybrid remedies such as “habeas corpus with mandamus in aid” and “habeas corpus with declaratory relief in aid”. It is apparent from the reasons for judgment that Mr. Chambers did not argue in favour of these remedies, and he does not seek to defend their existence on appeal.
 The judge appears to have fully understood the concept of habeas corpus with certiorari in aid. The idea, discussed in Miller, is that a court hearing a habeas corpus application is entitled to make orders requiring the delivery up of records to the court in order to facilitate habeas corpus review. In such cases, certiorari is used not as an ancillary remedy to deal with illegal detention, but rather as a procedural mechanism to ensure all necessary evidence is available to the reviewing court.
 One of the side-effects of the movement away from the prerogative writs and towards the modern remedy of judicial review is that lawyers (and judges) no longer need to be fully conversant with the detailed mechanisms of certiorari or other writs. Modern lawyers are more likely to be confused than enlightened by the use of phrases like “certiorari in aid”. This is particularly so given that courts are now concerned to ensure that review takes place on an adequate record, without undue concern for classic definitions of the “record”: SELI Canada Inc. v. Construction and Specialized Workers’ Union, Local 1611, 2011 BCCA 353 (CanLII). Given these trends in the law, I would suggest that it is no longer particularly helpful to speak of “certiorari in aid”.
This content has been updated on April 21, 2015 at 20:36.