Getting it Right First Time: Administrative Decision-Makers’ Participation in Judicial Review Proceedings

The extent to which administrative decision-makers should be allowed to participate in judicial review challenges to their decisions is a difficult question. On the one hand, limited participation deprives a reviewing court of important perspectives that an administrative decision-maker might be able to bring to the discussion. On the other hand, aggressive participation might — especially in the case of quasi-judicial tribunals acting as independent arbiters — imperil public perception of the decision-maker’s impartiality.

The Supreme Court of Canada took a strict view in its authoritative decision on the subject, in Northwestern Utilities Ltd. and al. v. Edmonton, [1979] 1 SCR 684:

This appeal involves an adjudication of the Board’s decision on two grounds both of which involve the legality of administrative action. One of the two appellants is the Board itself, which through counsel presented detailed and elaborate arguments in support of its decision in favour of the Company. Such active and even aggressive participation can have no other effect than to discredit the impartiality of an administrative tri­bunal either in the case where the matter is referred back to it, or in future proceedings involv­ing similar interests and issues or the same parties. The Board is given a clear opportunity to make its point in its reasons for its decision, and it abuses one’s notion of propriety to countenance its partici­pation as a full-fledged litigant in this Court, in complete adversarial confrontation with one of the principals in the contest before the Board itself in the first instance.

Many have argued that this test should be relaxed. The Ontario Court of Appeal advocated a contextual approach in Children’s Lawyer for Ontario v. Goodis (2005) 75 O.R. (3d) 309. Goudge J.A. quoted Professor Mullan with approval:

Under a discretionary approach, the principal question should probably be whether the participation of the tribunal is needed to enable a proper defence or justification of the decision under attack. If that decision will almost certainly be presented adequately by the losing party at first instance or by some other party or intervenor such as the attorney general, there may be no need for tribunal representation irrespective of the ground of judicial review or appeal. On the other hand, where no one is appearing to defend the tribunal’s decision, where the matter in issue involves factors or considerations peculiarly within the decision maker’s knowledge or expertise, or where the tribunal wishes to provide dimensions or explanations that are not necessarily going to be put by a party respondent, then there should clearly be room for that kind of representation to be allowed within the discretion of the reviewing or appellate court. Indeed, in at least some instances, a true commitment to deference and restraint in intervention would seem to necessitate it.

Moreover, as in one of the energy regulation cases heard by the Supreme Court of Canada yesterday, some decision-makers will have a policy-making role and, indeed, will sometimes be the sole respondent on a judicial review application. Perhaps different standards ought to apply in such cases.

But this might be an area where too much context is a bad thing, or at least not an unqualified good thing. Allowing decision-makers fulsome participation, or even allowing them significant latitude in adding affidavits and legal submissions chock-full of argument in the guise of background information, gives them less of an incentive to get decisions right first time. As Robertson J.A. once put it: “No tribunal should be permitted to bootstrap its decisions. If the tribunal fails to provide a rational explanation for its interpretative decision, why should it be given a second opportunity to do so?”

Indeed, with decision-makers able to use background material developed post hoc to rationalize a decision already made, reviewing courts may be reluctant to send decisions back for reconsideration. Yet fairness to the participants in the administrative process surely suggests they should be able to make submissions in full light of the considerations the decision-maker will take into account; all relevant evidence and interpretive positions should be on the record in the proceeding (however informal), not magicked up after the fact.

Moreover, it is through their reasons that administrative decision-makers articulate their policy objectives and animating purposes. Administrative decision-makers play a hugely important role in ensuring administrative justice. But they have a duty to themselves, participants in their decision-making processes, and to the public, to speak clearly through their reasons for decision, and not in whispered affidavits or legal submissions in subsequent judicial review proceedings. If a contextual approach is to be adopted, it should be alive to these concerns (see e.g. Canada (Attorney General) v. Quadrini, 2010 FCA 246).

This content has been updated on December 3, 2014 at 12:47.