Values, Rights and Remedies

Here is a radical suggestion from a 1997 essay by Peter Cane: “public law claimants should be free to specify the result they want to achieve by their claim and ask the court to provide an appropriate remedy”.

The suggestion seems radical because courts sometimes tend to treat public law remedies as rather inflexible. Things are better than they were when the prerogative writs reigned supreme, but there are two recurring problems. One, at least on the surface, courts tend not to pay much attention to remedies, devoting much less space in their written reasons to remedial questions. Two, courts are sometimes distracted by unnecessarily complex multi-factor tests from the need to right the wrong done to the claimant.

Both problems can be addressed by emphasizing the role of public law values in the exercise of remedial discretion. Four interlocking values recur across swathes of administrative law doctrine: the rule of law, good administration, democracy, and separation of powers.

This is not the place to unpack those values. Rather, I want to briefly demonstrate their utility by considering a recent Canadian case: D’Errico v. Canada (Attorney General), 2014 FCA 95.

The applicant 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. gave an appropriately narrow scope to some expansive dicta from the Supreme Court and concluded that the decision was unreasonable: “aside from fastening onto Ms. D’Errico’s yoga activities, the Board’s reasons do not allow this Court to understand why the Board made the decision it did on the basis of the medical evidence before it” (at para. 11). He quashed the decision and also made an order of mandamus.

In Canadian law, the threshold for mandamus is high. According to the leading authority, Apotex v. Canada (Attorney General), [1994] 1 FC 742 (affd [1994] 3 SCR 1100), there are eight pre-requisites, some of which have their own sub-pre-requisites. To save your eyes and sensibilities, they are reproduced at the end of this post.

Sensibly, Stratas J.A. did not get bogged down in the arduous task of ploughing through these pre-requisites. Quite properly, he noted that mandamus will only be issued in exceptional cases: “administrative tribunals should be allowed another chance to decide the merits of the matter and not have the reviewing court do it for them. But in certain cases, the circumstances support resort to the latter option” (at para. 17). In determining that this case was exceptional, he focused on public 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:

[19]           In my view, the nature of the benefits within this regulatory scheme also factors into our discretion. These are benefits meant to address a very serious condition, one that prevents the earning of meaningful income to sustain oneself. Parliament could not have intended the final disposition of disability benefits in these circumstances to take eight years.

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:

[20] Overall, as a majority of the Supreme Court recognized in a different context, “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”: Alberta Teachers’ Association, supra at paragraph 55

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 the separation of powers concerns about directing the decision-maker to reach a particular outcome were outweighed by the rule of law and good administration considerations:

[21]           In light of these considerations and the circumstances of this case, it is appropriate that this Court make its own assessment on the record before it in this case and direct the result that should follow on the facts and the law.

The same result was reached by the same court in Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55, a case involving repeated refusals by a minister to transfer a prisoner to a Canadian penitentiary:

[14]           In our view, in these circumstances, the Federal Court had at least two sources of power to exercise its discretion in favour of making a mandatory order (mandamus):
●         As mentioned above, the Federal Court found the Minister’s conclusion that there was a significant risk that Mr. LeBon would commit a “criminal organization offence” to be unsupported by the evidence, and the Crown does not contest this. With that factor off the table, all that remained were factors supporting the transfer. In these circumstances, it was open to the Federal Court to conclude on this evidence that the only lawful exercise of discretion is the granting of transfer. In such circumstances, mandamus lies: Apotex v. Canada (Attorney General), 1994 CanLII 47 (SCC), [1994] 3 S.C.R. 1100, aff’g 1993 CanLII 3004 (FCA), [1994] 1 F.C. 742 at pages 767-768 (C.A.) (principles 3, 4(d) and 4(e)), approved on this point in Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31 (CanLII), 2001 SCC 31, [2001] 1 S.C.R. 772 at paragraph 41.
●         In the unusual circumstances of this case, mandamus is also available to prevent the further delay and harm that would be caused to Mr. LeBon if the Minister were given a third chance to decide this matter in accordance with law, in circumstances where the Minister did not follow this Court’s earlier decision, paid “lip service” to it, and displayed a “closed mind” and “intransigency”: see Pointon v. British Columbia (Superintendent of Motor Vehicles), 2002 BCCA 516 (CanLII), 2002 BCCA 516 at paragraph 27 (there is a jurisdiction to grant mandamus in exceptional circumstances where delay would result in harm); see also the authorities cited in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII), 2000 SCC 44, [2000] 2 S.C.R. 307 at paragraph 148 (there is a jurisdiction, centuries-old, to grant mandamus in exceptional cases of mal-administration) (per LeBel J., dissenting, the majority not disagreeing with the existence of the jurisdiction).

Perhaps these decisions indicate a willingness to emphasize substance over form in the exercise of remedial discretion. If so, they are a most welcome step towards implementing Cane’s radical suggestion. 
Here are the Apotex factors:

1. There must be a public legal duty to act
2. The duty must be owed to the applicant
3. There is a clear right to performance of that duty, in particular

(a) the applicant has satisfied all conditions precedent giving rise to the duty
(b) there was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay

4. Where the duty sought to be enforced is discretionary, [special] rules apply

(a) in exercising a discretion, the decision-maker must not act in a manner which can be characterized as “unfair”, “oppressive” or demonstrate “flagrant impropriety” or “bad faith”;
(b) mandamus is unavailable if the decision-maker’s discretion is characterized as being “unqualified”, “absolute”, “permissive” or “unfettered”;
(c) in the exercise of a “fettered” discretion, the decision-maker must act upon “relevant”, as opposed to “irrelevant”, considerations;
(d) mandamus is unavailable to compel the exercise of a “fettered discretion” in a particular way; and
(e) mandamus is only available when the decision-maker’s discretion is “spent”; i.e., the applicant has a vested right to the performance of the duty.

5. No other adequate remedy is available to the applicant
6. The order sought will be of some practical value or effect
7. The Court in the exercise of its discretion finds no equitable bar to the relief sought
8. On a “balance of convenience” an order in the nature of mandamus should (or should not) issue.

This content has been updated on June 11, 2014 at 09:45.