Administrative Law
Markus Dubber
Baker v. Canada
((1995) 101 F.T.R. 110 (FCTD) [06/95]
Federal Court Trial Division
• Mavis Baker, “worked illegally” ‘81-’92, 4 kids,
‘92: paranoid schizophrenic, 1 yr mental health
centre; 6-yr-o twins w/ father; 10- and 3-yo foster
care
• ‘93: out-patient; landing application H&C; ‘94:
denied by letter, w/o reasons; case history notes
produced upon request
PC is unemployed - on Welfare. No income
shown - no assets. Has four Cdn.-born childrenfour other children in Jamaica- HAS A TOTAL OF
EIGHT CHILDREN
Says only two children are in her "direct
custody". (No info on who has ghe [sic] other
two).
There is nothing for her in Jamaica - hasn't been
there in a long time - no longer close to her
children there - no jobs there - she has no skills
other than as a domestic - children would suffer can't take them with her and can't leave them
with anyone here. Says has suffered from a
mental disorder since '81 - is now an outpatient
and is improving. If sent back will have a relapse.
Letter from Children's Aid - they say PC has been
diagnosed as a paranoid schizophrenic. - children
would suf-fer if returned Letter of Aug. '93 from psychiatrist from Ont.
Govm't. Says PC had post-partum psychosis and
had a brief epi-sode of psychosis in Jam. when
was 25 yrs. old. Is now an out-patient and is
doing relatively well - deportation would be an
extremely stressful experience.
Lawyer says PS [sic] is sole caregiver and single
parent of two Cdn born children. Pc's mental
condition would suffer a setback if she is
deported etc.
This case is a catastrophy [sic]. It is also an
indictment of our "system" that the client came
as a visitor in Aug. '81, was not ordered deported
until Dec. '92 and in APRIL '94 IS STILL HERE!
The PC is a paranoid schizophrenic and on
welfare. She has no qualifications other than as a
domestic. She has FOUR CHILDREN IN JAMAICA
AND ANOTHER FOUR BORN HERE. She will, of
course, be a tremen-dous strain on our social
welfare systems for (probably) the rest of her life.
There are no H&C factors other than her FOUR
CANADIAN-BORN CHILDREN. Do we let her stay
because of that? I am of the opinion that Canada can no longer afford this kind of generosity.
However, because of the circumstances involved,
there is a po-tential for adverse publicity. I
recommend refusal but you may wish to clear
this with someone at Region.
There is also a potential for violence - see charge
of" assault with a weapon".
•Process: No reasons, no problem
“[W]hen the Court of Appeal combined the lack of a requirement for reasons with a heavy
burden on the applicant, it meant, in practical terms, that in the absence of evidence to the
contrary, it was to be presumed that an H & C decision was made properly. … Accordingly, I
will not require Officer Caden to file an affidavit, and I will not send the matter back for a
redetermination only because there is no affidavit.”
•“Substance”: plenty of evidence, no bias
•“conclusion” ("She will, of course, be a tremendous strain on our social welfare
systems for (probably) the rest of her life”) not supported by evidence: sure it is
“I think it reasonable to conclude that the experts do not expect the applicant to work.
Indeed, the C.A.S. does not even forecast that she will be able to care for all four
children. In my view, when Dr. Collins said that the applicant will be a productive
member of society, he meant that she will be able to care for at least some, and
hopefully, all of her children. Had he anticipated her return to the workplace, I am
convinced that he would have said something about it in clear terms.”
•bias: "catastrophe”, "indictment of our system”
•[H]is views are not relevant, but even if they were, I am not satisfied that the
language he used displayed a bias against the applicant. Rather, it displayed an anger
and frustration with Canadian immigration law enforcement.
•No blatant error is to be found in the officer's notes. His expressions of personal
opinion were unfortunate, but they do not taint the decision-maker [Caden].
•Independence of trial court? Informal style, deference, presumption
Federal Court of Appeal (11/96)
• Certified question:
– Given that the Immigration Act does not expressly
incorporate the language of Canada's international
obligations with respect to the International
Convention on the Rights of the Child, must federal
immigration authorities treat the best interests of the
Canadian child as a primary consideration in assessing
an applicant under s. 114(2) of the Immigration Act?
• Nothing re: process, bias
– Not certified; not raised below
• Formal, procedure, limited role, narrow
Immigration Act, R.S.C., 1985, c. I-2
82.1 (1) An application for judicial review under the Federal Court Act with respect to any decision or
order made, or any matter arising, under this Act or the rules or regulations thereunder may be
commenced only with leave of a judge of the Federal Court — Trial Division.
83. (1) A judgment of the Federal Court — Trial Division on an application for judicial review with
respect to any decision or order made, or any matter arising, under this Act or the rules or
regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court
— Trial Division has at the time of rendering judgment certified that a serious question of general
importance is involved and has stated that question.
114. (2) The Governor in Council may, by regulation, authorize the Minister to exempt any person
from any regulation made under subsection (1) or otherwise facilitate the admission of any person
where the Minister is satisfied that the person should be exempted from that regulation or that
the person's admission should be facilitated owing to the existence of compassionate or
humanitarian considerations.
Immigration Regulations, 1978, SOR/78-172, as amemded [sic] by SOR/93-44
2.1 The Minister is hereby authorized to exempt any person from any regulation made under
subsection 114(1) of the Act or otherwise facilitate the admission to Canada of any person where
the Minister is satisfied that the person should be exempted from that regulation or that the
person's admission should be facilitated owing to the existence of compassionate or humanitarian
considerations.
Sup Ct (7/99)
• L'Heureux-Dubé
– S.Ct. Style: expansive, discursive, “grand” (Llewellyn),
substance
• All admin, all the time
– “Because…the issues raised can be resolved under the
principles of administrative law and statutory interpretation, I
find it unnecessary to consider the various Charter issues raised
by the appellant”
• Formulation of certified question no problem
– “The wording of s. 83(1) suggests [that] if a question of general
importance has been certified, this … does not confine the
Court of Appeal or this Court to answering the stated question
or issues directly related to it.”
• Rule of law? Procedure vs. substance? Deference (to lower
ct./to admin agency)?
• Statutory interpretation?
• The scheme
– “Statute” authorizes Governor in Council to authorize minister
to exempt on H&C (C/H) grounds who delegates to immigration
officer who has manual with guidelines
• What would a reasonable person do?
(Common law) procedural fairness
• Applies to H&C:
– administrative decision & affects "the rights, privileges or interests of
an individual" (Nicholson?)
• Flexible & variable
• Bottom line:
– [T]he purpose of the participatory rights contained within the duty of
procedural fairness is to ensure that administrative decisions are made
using a fair and open procedure, appropriate to the decision being
made and its statutory, institutional, and social context, with an
opportunity for those affected by the decision to put forward their
views and evidence fully and have them considered by the decisionmaker. (22)
Participatory rights--What’s owed?
The Baker Factors…
1.
nature of the decision being made and the process followed in
making it
– The more (judicial), the more (rights)
2.
nature of the statutory scheme and the "terms of the statute
pursuant to which the body operates”
–
3.
4.
the importance of the decision to the individual or individuals
affected
legitimate expectations of the person challenging the decision
–
5.
6.
E.g., no appeal
Can’t break promises re: process,
or re: outcome w/o due process
agency’s choice of procedures
list not exhaustive etc. etc. etc. …
Which Way Do They Cut? The Factors applied
1.
2.
3.
4.
5.
6.
nature of the decision being made and the process followed in making it
– The more (judicial), the merrier
• Tons of discretion – Canada
nature of the statutory scheme and the "terms of the statute pursuant to which the
body operates”
–
E.g., no appeal
•
“Exception to the general principles of Canadian immigration law” -- Canada
•
No appeal, exc. with leave… -- Baker
the importance of the decision to the individual or individuals affected
–
Baker
legitimate expectations of the person challenging the decision
–
Can’t break promises re: process, or re: outcome w/o due process
•
Convention on the Rights of the Child not like administrative promises -Canada
agency’s choice of procedures
–
Canada (obviously…)
list not exhaustive …
And how about Mr. Nicholson?
Conclusion
• “Thus, it can be seen that although some of the factors
suggest stricter requirements under the duty of
fairness, others suggest more relaxed requirements
further from the judicial model.”
– Indeed!
• more than “minimal”: “the circumstances require a full
and fair consideration of the issues, and the claimant
and others whose important interests are affected by
the decision in a fundamental way must have a
meaningful opportunity to present the various types of
evidence relevant to their case and have it fully and
fairly considered.”
– Still mini-NJ (Nicholson)?
In particular
• No oral hearing/notice required—no problem
– Written submissions enough
• Reasons required—when/where?
– “where the decision has important significance for the individual, when
there is a statutory right of appeal, or in other circumstances”
– Why?
• Unnecessary, not required, delay, cost…
• BUT: useful (transparency…), better decisionmaking, “the process of writing
reasons”
– Still: no problem—Lorenz’s notes = “reasons”
Proc Fair II: Bias
• free from a reasonable apprehension of bias, by an
impartial decision-maker
– Lorenz, too (not just Caden): central role & notes =
reasons
• Test:
– the apprehension of bias must be a reasonable one, held
by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the
required information... [T]hat test is ‘what would an
informed person, viewing the matter realistically and
practically — and having thought the matter through —
conclude. Would he think that it is more likely than not
that [the decision-maker], whether consciously or
unconsciously, would not decide fairly.’
• Reasonable persons’ reasonable apprehension of
unreasonableness
• Flexible, based on context (important, sensitive
immigration decisions)
– Here: immigration decisions demand sensitivity and
understanding by those making them. They require a
recognition of diversity, an understanding of others, and
an openness to difference.
• Reasonable expectation?
Different Bakers
• Trial vs. appeal vs. sup ct (vs. admin
opinion, see Batic)
– Tendentious facts in app cts
– Different approaches
• Issues
• Viewpoints
– Attitudes (Willis): toward admin
agencies/legislature
» Proximity to agency (repeat players)
• Rule of law/rule of (wo)men
– Different styles
• Formal/informal, expansive/narrow,
discursive/focused (dicta!), grand/not so
grand, creative/orderly (Llewellyn)
• Status
Batic v. CICB
[1983] O.J. No. 1910, Ontario Supreme Court - High Court of Justice, Divisional Court
• Limited jurisdiction; error of law “plainly demonstrated”
– 23. [A] decision of the Board is final except that an appeal lies to the Divisional Court
from any decision of the Board on any question of law.
• From the action it took in denying the application, it is apparent that certain
evidence was accepted and other evidence rejected and it is quite clear that
there was evidence upon which the Board could reach the conclusion it obviously
did. Without stating that conclusion specifically, the Board invoked s-ss. 17(1)
and 17(2) of its constituent statute and denied the application.
– 17(1) In determining whether to make an order for compensation and the amount
thereof, the Board shall have regard to all relevant circumstances, including any
behaviour of the victim that may have directly or indirectly contributed to his or her
injury or death.
(2) The Board may, in its discretion, refuse to make an order for compensation or
order a reduced amount of compensation where it is satisfied that the applicant has
refused reasonable co-operation with, or failed to report promptly the offence to, a
law enforcement agency.
It cannot be stated too frequently that it is desirable that a tribunal of
this nature whose findings affect many individuals in unfortunate
circumstances should state for the benefit of those individuals and of others
who may in the future be affected, the grounds upon which it reaches its
conclusion with some precision. It is desirable also that the Board indicate
with precision the way in which it relates those parts of the statute on
which it relies to its findings of fact. The Board's failure to do so here is
regrettable. We are, however, limited in the action we may take and we are
unable to find a specific error in law in what the Board has done in this
instance. Evidence existed which the Board has obviously accepted which
justifies the action taken and that evidence was quite sufficient to support
the application of s-ss. 17(1) and 17(2).
The application must accordingly be denied, but we are all of the
opinion that because of the lack of clarity in the Board's decision, it should
compensate the appellant for its costs of this application. The appeal will
therefore be dismissed, but the costs of the appellant will be paid by the
respondent.
Batic round-up
• Rule of law?
– Specificity
• “less than precise”
– Publicity
• Opinion
• Reasoning
– Justification?
• Audience?
– Public
– Claimant
– Itself: recordkeeping
– Respect
• Ct. vs. Administrative agency
– Appellate review vs. friendly suggestion
• Ct. vs. Legislature
• Ad agency vs. claimant
• Duty of Fairness
– Giving reasons (in form) vs. giving
reasons (in substance)
• Who needs reasons? Who needs rules?
Facts, facts, facts
• Fuller: form vs. substance/managerial
direction vs. rule of law
• What is it good for?
• Burden of proof
– Truth/bench trial
– Jury/experts
• Victim Compensation (Substance)
– Intoxication
• Significance?
– 72(1): contribution? To injury vs. to
criminal injury
– 72(2): co-operation (failure to report)
• Relevance?
– Character/Innocence/”Victi
m”/Pretender
– “costs” as punishment
• No offender
– Claimant vs. police