Sean Rehaag on the Luck of the Draw

Osgoode’s twitter feed alerted me yesterday that Sean Rehaag has an interesting empirical analysis of judicial review determinations by the Federal Court on SSRN. His dataset includes leave determinations and determinations on the merits in refugee cases.

The title of his working paper is “The Luck of the Draw? Judicial Review of Refugee Determinations in the Federal Court of Canada”:

This working paper offers an empirical examination of judicial review in Canada’s Federal Court in the refugee law context. Drawing on a dataset of over 23,000 applications for judicial review of refugee determinations from 2005 to 2010, the paper examines whether outcomes in these life-and-death applications turn on their merits, or whether, instead, they hinge on which judge is assigned to decide the application. The paper reveals that outcomes over the past five years frequently came down to the luck of the draw, with, for example, one judge more than 50 times as likely to grant applications than another judge. Based on these findings, the author offers several recommendations for reform to enhance fairness and consistency in this important area of law.

Anyone interested in judicial review of administrative action should read the paper, which is well presented and well written.

The basic claim is that there are wild variations in the treatment of leave and judicial review applications by different Federal Court judges. Some of the figures Rehaag gives are arresting and troubling. His calls for reform of the leave requirement are difficult to ignore in light of the evidence he presents.

While I don’t have the statistical sophistication to evaluate the variations Rehaag identifies, it would be interesting to know whether the variations would be quite so wild if the outlier judges (who are particularly friendly and unfriendly to refugee applicants) were removed from the study. Whether this is so or not, however, the fact that there are outlier judges is problematic and does indeed mean that applicants, particularly applicants for leave, face “the luck of the draw”. It is eminently reasonable to conclude that reform, either of judicial education or the substantive standards applied, is worth considering.

Some small quibbles: Rehaag looked at the judges’ gender, date of appointment and political party of appointment, but not at their area of practice. It would be interesting to know if judges who argued many administrative law cases as practitioners treat leave and judicial review applications the same as their counterparts with backgrounds in private law.

Also, in analyzing the 23,000 applications, Rehaag relied (quite appropriately) on their Federal Court dockets. But those dockets only inform us whether applications for judicial review were ultimately granted or denied (or withdrawn). There could be a significant difference, for example, between quashing a decision and sending it back for re-hearing. Some attention to the distinction between substantive review and procedural review might be necessary to fully round out the analysis. The difficulty is, though, that such information may simply not be available.

All in all, an important paper, and one which is well worth reading.

This content has been updated on June 11, 2014 at 09:47.