mardi 9 décembre 2014

Judicial review, procedural fairness, legal fictions... and why I still don't agree with Professor Daly

by Karim Renno
Irving Mitchell Kalichman LLP

A few weeks back, in a moment of foolish courage, I decided to take on two leading voices in the field of administrative law - Professor Paul Daly and Justice David Stratas - on the issue of the standard of review applicable to procedural fairness. Last week, Professor Daly responded to my post on Administrative Law Matters. His response was well-reasoned, logical and well-written. So, obviously, I intend to present my counter-point in my usual rambling fashion.

I preface my comments by saying I still believe everything I initially wrote to be right. While I won't repeat these points here, I should say that Professor Daly's response - as good as it is - has not convinced me to change my mind.

That said, I want to add the points below because I think they are germane to one important point made by Professor Daly.

Legal fiction

Let us start by discussing something that is not exclusive to administrative law, but that matters a great deal when discussing judicial review generally: legal fiction.
By legal fiction, I'm not referring to the combined works of John Grisham, but rather to the assumptions that are sometimes made in law in order to enable the justice system to properly function or to enable a court to equitably resolve a matter before it.
Let me use an example to illustrate such legal fiction. When debating whether certain evidence is admissible on the basis of solicitor-client privilege, lawyers and parties put before the judge - administrative or judicial - the evidence in question and ask him or her to rule on such admissibility. If the evidence is ruled inadmissible, the parties - by way of legal fiction - trust that judge to act as if that evidence had never been seen (which we don't do for lawyers by the way, given that we disqualify the attorneys who possess confidential information about the opposing party because we don't trust them not to use it).
Does anyone actually believe judges have special mind wipe powers? Of course not. But for the sake of the proper administration of justice, we must live with that legal fiction because we would otherwise have to recuse every judge who excluded evidence.
Why legal fiction matters to the issue
At this point, you are undoubtedly asking what legal fiction has to do with judicial review and procedural fairness. Fair point.
It's important because one of the greatest leaps of faith we make in the justice system is to trust judges - again both administrative and judicial - not to be influenced by the fact that some of their decisions basically cannot be attacked by way of appeal or correctness review.
That is the greatest legal fiction of all.
If you think I'm criticizing judges, you are wrong. Rather, I'm recognizing a fundamental trait that exists in all human beings. There's a reason that the maxim absolute power corrupts absolutely is so often used.
This is why lawyers don't like judgments or decisions that can't be attacked. It's not just about the fact that we can't get a second kick at the can, but also the fact that there is basically nothing to prevent a judge from setting aside the law to do what he or she deems appropriate in the circumstances.
Judges simply behave differently when they know their decisions are impossible or almost impossible to reverse. Again, this is not exclusive to administrative law. Think of all judicial decisions that can't be appealed and you have the same situation.
I'm fine with this by the way because this legal fiction is necessary for the proper function of the legal system. If all judgments could be appealed as of right and all administrative decisions were subject to review on a correctness standard, cases would drag on for an eternity. I'm also fine with this because I trust judges to strive to do what is right, even when they do err.
Rather, I should say that I'm fine with this in almost all circumstances. There are simply matters - as I discussed in my first post - that are too important to accept that they are beyond the reach of the easy intervention of higher courts. Procedural fairness is one of those matters.
As previously argued, procedural fairness is at the unassailable core of rights everyone is entitled to. Getting it wrong on that topic is simply not an acceptable option.

Every system needs checks and balances, and that's even more true for the justice system. While reasonableness review is a check, it's arguably the weakest one you can think of. That's not good enough when talking about core rights.
So what's my point?
I bring this all up because Professor Daly wrote the following:
Why would we think that courts are better placed than administrative decision-makers to understand what fairness requires in a particular context? At the very least, shouldn’t we presume the decision-maker got it right? Don’t we undermine the autonomy of administrative decision-makers if — months or maybe years after the fact — we strike down a decision because, say, an adjournment was unfairly denied in the eyes of a reviewing court? 
It is rhetorically pleasing to say that judges watch over the “fairness” of administrative proceedings. But “fairness” here has a whiff of the Chancellor’s foot about it, with a risk that its content will depend on the preferences of judges rather than the practical realities of administration. Better, in my view, to defer on procedural questions, starting from the presumption that the decision-maker got it right; if they considered the arguments presented and gave cogent, context-sensitive reasons for denying a particular procedural claim, it is hard to see why they should automatically be second-guessed by courts.
The answer to his question is twofold.
First, even if you believe courts are not better placed to understand what procedural fairness requires, you cannot give the complete carte blanche on procedural issues to anyone. Quis custodiet ipsos custodes?
Administrative judges already have wide discretion to determine the applicable rules of procedure. The only limits are their enabling statutes - when said statutes contain procedural rules - and (you guessed it) procedural fairness. If you add reasonableness review on top of that, you basically are giving carte blanche. I can't accept that (and, judging by the number of comments that were e-mailed to me regarding my initial post, neither can many of you).
Second, I'll answer with a question of my own:  why would we think that the Court of Appeal is better placed than Superior Court or Québec Court judges to understand what fairness requires in a particular context ? Yet nobody - to my knowledge - has ever suggested that an appeal proceeds on any other basis than simple error. The same is true of judicial review by the Superior Court of decisions rendered by the Court of Québec.
Administrative judges already enjoy very wide discretion. There no need, or reason, to give them more at the expense of procedural fairness.
Reference : [2014] ABD 490

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