Introduction to the Access Series

For a long time now, I have thought of using my (mostly derelict) blog to summarise my research in order to render it more accessible. That is the goal of this new Access Series. For each of my academic publications, I will endeavour to write an accessible blog post (for longer texts, like books or theses, I will probably post multiple posts). Accessibility, in the academic context, has generated a lot of debates. For me, I see accessibility in terms of form and in terms of substance. For form, this series will increase access because it is free, aka open access, and not hidden beyond a paywall that can often only be afforded by academic institutions, big corporations or government. Posts will also be shorter than academic articles (although this particular post will be longer than what I aim for given its introductory nature), chapters and books, making their content easier to read for people who are not paid to do research. I think this is especially important for research that is meant for the public or a particular community (versus research that is meant more for other academics). I will forgo footnotes and in text references, except for quotes. Instead, I’ll include a short references list at the end, favouring open access content.

Substance is a bit trickier. I have often seen people complaining that many academics equate accessibility with open access and that academic text, even when materially accessible, remain intellectually inaccessible because of its language, style or even topic (e.g. a highly theoretical piece). I agree with these critiques to a certain extent: (1) accessibility and open access are not the same thing; and (2) the substance of many academic texts is often inaccessible to most. However, it seems that academics often assume that the average person cannot understand complex arguments. I disagree with this assumption. Additionally, I do not think that academic texts necessarily need to be accessible to all. It depends on the purpose of the text. What would be the point of conducting in depth research into a complex phenomenon if you cannot fully expose this research via an academic publication just because it might not be accessible to most people? However, once an “inaccessible” piece is published, presumably for an academic audience, nothing stops the author to make a “simpler” more accessible version.  This is the second goal of this series. To be clear, this mean that I will assume that the average reader is intelligent, as I believe they are, but not an expert or even someone with basic knowledge of the subject I am exploring in these posts. Hopefully, these guidelines will ensure that my research is more accessible.

Without further ado, here is the first post:

The Importance of Administrative Law

Administrative law is a little known field of law outside of legal circles (and even often outside of administrative law practitioners). People think of the law more in terms of criminal, civil or family law. Administrative law is also often viewed as a very complex or arcane area of the law. However, a lot of people are more likely to deal with administrative justice than any other forms of justice (in its institutional sense, not its ethical/philosophical one), as every time a person interacts with the state—applying for employment insurance, getting a passport, being disciplined by a university, getting a union certified, etc.—they are within the purview of administrative justice. It is thus a very important area of the law; one that people should have better opportunity to familiarise themselves with in order to better navigate the ever complex administrative apparatus of the state and the procedures of challenging administrative decisions in courts.

Administrative law can be split roughly in two categories: internal and external. Internal administrative law comprises of the administrative mechanism of decision- and policy-making. This includes all the forms and procedures required for a decision to be taken (e.g. submitting a complaint to a human rights tribunal), all the policies and guidelines that exist to help decision-makers (e.g. sexual orientation and gender identity guidelines in the refugee and immigration context) and internal appeal or review mechanisms (e.g. the Environmental Review Tribunal which can, in certain circumstances, review environmental decisions in Ontario). Administrative procedure is meant to be more flexible and easier to navigate than court ones (although to what extent this is achieved is a point of contention). Internal administrative law also includes all the substantive rules applicable in a given situation, in other words, the applicable legislation and common law rules. These are extremely varied and touch on nearly all aspect of life.

External administrative law refers to the power of courts to review administrative decisions for their legality and the rules created under the common law that are applicable in all situations. In summary, every decisions of a government must be procedurally fair and substantively reasonable (and in some respect, explored below, substantively correct). If a decision runs afoul of these rules, a court can quash (cancel) the decision and order a new decision-making process or order any other remedies appropriate in the circumstances (there are, unsurprisingly, rules about the appropriateness of different remedies). In some (relatively rare) circumstances—for example when it would be futile to send a decision back to the decision-maker—a court can refuse to grant a remedy. External administrative law thus ensures that the administration, in other words the executive branch, respects the law since the rule of law demands that nobody (in theory), not even the government, is above the law. Sadly, many people are unaware that when all internal mechanisms are exhausted, they can turn to the courts. And even of those who know, many are not aware of the body of law applicable to these court challenges (it is not uncommon to see self-represented litigants treat judicial review as a trial, which it is not). Obviously, obtaining legal advice and representation is best when dealing with these complex legal situations, but given the state of access to justice in Canada, understanding administrative law can help an applicant (the person initiating a judicial review) increases their chances of success.

In the remainder of this post, I explore some aspects of (mainly external) administrative law in greater detail. However, before I move to this case study, a quick look at the “life” of an administrative decision can help illustrated what I summarised above. Let’s take the example of filing a refugee claim. Peter is a refugee claimant. After obtaining a fake visa, they arrive at the Toronto Pearson Airport. (1) At the border, they state that they are claiming refugee status. A border officer conducts an interview and Peter fills a form for their claim. The officer deems the claim eligible and it is forwarded to the Immigration and Refugee Board (a decision that could have been challenged in court if it had been negative). Peter is allowed in the country pending the determination of their claim. (2) Peter hires a lawyer who helps them fill another form and forwards it, along with supporting documents (evidence), to the Refugee Protection Division of the Board in accordance with the relevant procedural rules. A hearing is conducted by a member of the Division. After the hearing, the member decides that Peter is not a refugee under the Immigration and Refugee Act and provides reasons in writing for the decision. (3) Dissatisfied, Peter and their lawyer file an appeal at the Refugee Appeal Division of the Board in accordance with the appeal rules. The appeal is determined without a hearing and is rejected with written reasons. (4) Peter’s lawyer finds a major flaw in the decision’s reasoning and, under the instruction of Peter, files an application for judicial review at the Federal Court in accordance with the general requirements of the Federal Courts Act and of the Federal Courts Rules, and the specific requirements of the Immigration and Refugee Act. In this case, leave must be first obtained as provided by the Immigration and Refugee Act (meaning the court takes a preliminary look at the case to see if there is any chance of success; it presumes that the facts are true for the purpose of the exercise). Leave is granted and the Board provides the Court and the parties (Peter and the Minister, i.e. the department) with a certified tribunal record (containing all documents in front of the Board and the transcripts of the hearing). (5) The parties submit their written arguments and they a hearing is held at the Federal Court. Peter’s lawyer is able to convince the judge that the Appeal decision is unreasonable and a few weeks after the hearing, the Court orders the decision quashed with written reasons. (6) A different panel of the Refugee Appeal Division takes a second look at the decision, after Peter and their lawyer make further arguments, and grants Peter refugee status.

In this scenario, if Peter had lost at the Federal Court stage, they could have filed an appeal at the Federal Court of Appeal, if certain strict criteria were met. If they lost again, they could then try to convince the Supreme Court to hear their (final) appeal by obtaining leave. Generally speaking, the Federal Court hears judicial review of federal decisions and the provincial superior courts hears judicial review of provincial decisions. In some cases, judicial review lies directly with a court of appeal (e.g. judicial review of the Canada Industrial Relations Board’s decisions are filed directly to the Federal Court of Appeal) or with a specific division of the superior court (e.g. the Divisional Court in Ontario). In Québec, certain decisions are appealed to the Québec Court. The relevant legislation (rules of courts, legislation on judicial review, and/or the substantive legislation at play) will provide for the proper path to take and for deadlines to meet.

An Aquaculture Case Study: Background

Salmon fisheries and aquaculture are a contentious issue in British Columbia (BC). There is a strong cultural association with the fisheries, one that is particularly strong for First Nations. There are many layers to the issue, but one of the most contentious layers is the place and impact of aquaculture on wild salmon, particularly the impact of the piscine reovirus (PRV). PRV has a strong connection with the deadly heart and skeletal muscle inflammation disease (HSMI), but the needed level of scientific consensus to state that PRV causes HSMI has not yet been reached. PRV has a high rate of occurrence in farmed salmon populations and proximity to a salmon farm increases the chance of wild salmon having PRV. There is thus good reason to treat the issue of disease transmission between farmed and wild salmon and aquaculture regulation seriously and in accordance with the precautionary principle. This principle states that the lack of scientific certainty should not prevent the adoption of measures to protect the environment.

Sadly, the Department of Fisheries and Oceans (DFO) has been reluctant to intervene directly and to take any substantial measures to limit the propagation of PRV. Some movement has been made, but only at the result of several litigations. This case study looks at the first of these litigations initiated by Alexandra Morton, a biologist represented by the public interest environmental law firm Ecojustice. After discovering that the fish Marine Harvest (now Mowi), the world’s largest aquaculture corporation, was transferring salmon with PRV from its inland hatchery to its open-net farm (fish farm that are placed in the natural ecosystem and that, thus, allows contact with this ecosystem), Morton contacted DFO. The department informed her that the transfers were authorised under the aquaculture licence granted by DFO to Marine Harvest under the Fisheries Act. Given the inaction of DFO, Morton filed an application for judicial review in the Federal Court challenging the validity of the licence.

The licence itself allowed fish transfer if, in summary, the veterinarians of Marine Harvest were satisfied that the risk level of a transfer was low. Morton relied on two main arguments: (1) that the licence was contrary to the requirements of the Fishery (General) Regulations provision on fish transfer (section 56); and (2) that the licence constituted an illegal sub-delegation of the Minister’s power to Marine Harvest.

Substantive Review of Ministerial Decisions: Reasonableness and Environmental Risks

The first step in a judicial review is determining the standard of review. The standard of review refers to the level of scrutiny the impugned decision will be under. There are three standards: reasonableness, correctness and palpable and overriding error. Determining the standard of review has been a very contentious issue that has led to complex and ever evolving litigation and jurisprudence. Put simply, reasonableness is the norm unless one of the exceptions applies. One exception is when legislation prescribes a different standard. This includes when legislation creates an appeal to the courts. In such cases, the appeal standards apply: questions of law are reviewed under the correctness standard while questions of facts and mixed questions are reviewed under the standard of palpable and overriding error. Other exceptions to the reasonableness standard presumption include constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies. In these cases, the correctness standard applies.

Correctness requires the court to determine the correct answer to a question on its own (de novo review). Other answers, even if reasonable, constitute an error of law. Palpable and overriding error involves an error that can be plainly seen, aka an obvious error that renders the decision-maker’s reasoning faulty. These two standards tend to be easier to apply as they are, at least in theory, straightforward. Reasonableness, on the other hand, is a lot trickier. Reasonableness is a contextual standard. A judge must assess all the legal and factual elements that form the context of the decision-making and determine if the impugned decision can be reasonably justified in this context. In addition, the reasons given by the decision-maker must be intelligible; aka the conclusion must be supported by the reasons. When no formal reasons are required, the judge can look at the record (the evidence supporting the decision) or other contextual element (like how the hearing was conducted) to determine if the reasoning of the decision-maker was flawed (e.g. the credibility of a person was determined based on stereotypes). Overall, the contextual factors that inform a decision’s reasonableness are (1) the reasons; (2) the record; (3) relevant legal rules and principles. The Morton case offers a perfect example of the contextual nature of reasonableness.

Justice Rennie found that the standard of review was reasonableness. This is unsurprising given that the decision to issue a licence and to formulate certain conditions is a matter of discretion and do not fit within any exceptions (while the rules around standard of review were slightly different at the time, the changes made in 2019 would not have impacted the selection of the standard of review in this case). Licencing decisions may be discretionary, but this discretion is not absolute. Specifically, Justice Rennie found that section 22 of the Fishery (General) Regulations prohibited conditions that are incompatible with the Regulations. Paragraph 56(b) of the Regulations states that fish transfer licence can only be granted if the fish being transferred “do not have any disease or disease agent that may be harmful to the protection and conservation of fish”. Justice Rennie also considered the conservation goal of the provision in question and of the Fisheries Act as a whole, the lack of scientific evidence in the record supporting the Minister’s decision, and the precautionary principle. Particularly, the judge took seriously the proposition that the lack of scientific certainty regarding PRV shouldn’t prevent the adoption of protective measures (aka refusing a transfer).

The court determined that two of the four transfer conditions of the impugned licence were unreasonable. Risks related to disease transmission were at the center of the analysis. Justice Rennie found that paragraph 56(b) was risk adverse since anything that may be harmful to fish would prevent the issuance of a transfer licence. The conditions indicated when Marine Harvest could transfer a fish from its hatchery to its open-net farm based on various criteria such as rate of mortality, evidence of known disease, etc. Justice Rennie found conditions (i) and (iii) reasonable as they established criteria strict enough to respect paragraph 56(b). In other words, these conditions represented a reasonable interpretation of the regulation. However, his conclusion for conditions (ii) and (iv) was quite different. Condition (ii) focused on signs of disease requiring treatment and thus would potentially allow the transfer of a sick fish that is not showing any signs of disease. This was especially concerning since HSMI takes a long time to manifest itself through clinical signs. Condition (iv) allowed a transfer that was found to be low risk by a Marine Harvest veterinarian. Low risk is evidently ambiguous and appears considerably less strict than prohibiting transfer that may be harmful. Given the evidence of widespread PRV contamination and the risk this poses to fish, and given the importance of conservation, Justice Rennie concluded that both conditions were unreasonable.

There are two things of note with the reasonableness analysis of Justice Rennie. Firstly, his use of the precautionary principle went beyond usual judicial treatment of this well-known environmental law principle. It is well established that the principle can be used to interpret legislation. It can also be used substantively when it is enshrined in legislation for cases dealing with this legislation (e.g. the federal pesticide law). In this case, while the judge used it to interpret the regulation, he also went further by using it as a contextual factor to determine reasonability and by suggesting that the principle had reached the level of a substantive rule in Canadian law (meaning that legislation is not needed to make it operational). Neither the Fisheries Act nor the Fishery (General) Regulations mention the precautionary principle. Yet, Justice Rennie found that the legislation embodied the principle and that decisions made under it must respect it or run the risk of being found unreasonable (unless a good explanation to depart from the principle is offered). This mean that precaution could become part of the contextual factors considered in the judicial review of most if not all of the environmental decision-making at the federal level, even when the legislation is silent on precaution. He further suggests, although states that it is not determinative, that the principle has arguably crystallized into a norm of substantive domestic law and that the unreasonable licence conditions could be found unreasonable on the basis that they run afoul of the precaution principle alone. Given the reticence of the federal government to recognise the legal force of the principle, this reasoning opens the door to further develop the principle into a firm rule in the context of administrative law regarding environmental decisions.

Secondly, Justice Rennie centers his analysis on the licence conditions rather than the issuance of the transfer licence. This led him to quash only certain condition instead of the entire part of the licence dealing with fish transfer. While this is in line with the language of section 22 of the Fishery (General) Regulations, it appears to be at odd with section 56 which concerns the ability to issue a transfer licence in the first place. In other words, section 56 makes it pretty clear that the Minister must respect the criteria set out in the provision before issuing a licence. The validity of the exercise of power depends on meeting these criteria. Justice Rennie found that paragraph 56(b) had not been complied with and thus he should have quashed the transfer licence in its entirety. There is also the issue that the first three conditions were conjunctive, meaning that they operate as one whole. If one of them is invalid, then it follows that the remaining ones cannot stand as they are not independent conditions. While the extent of the remedy would have had little practical impact as the fish had already been transferred, this flaw in Justice Rennie’s reasoning should be noted by people involved or interested in aquaculture litigation (given the importance of the issue of disease and the centrality of transfer licences to the proper functioning of the industry).

Sub-Delegation: Who Can Exercise Public Power?

Justice Rennie also found that condition (iv) constituted an illegal sub-delegation. This stems from an old public law rule that prohibits a delegate from delegating its power to a sub-delegate. This rule is not a hard one and depends, a bit like reasonableness, on context. Generally speaking, legislations delegate most decision-making powers to Ministers. Given the number of decision-making powers delegated to Ministers, it is impossible for Ministers to exercises all these powers personally. Thus, most decision-making is delegated to numerous public servants. In the Morton case, the licence was issued by a director of DFO. These sub-delegations are—rightfully so—not considered illegal. However, the impugned licence seems to sub-delegate the application of paragraph 56(b) of the Fishery (General) Regulations to Marine Harvest since it was them who had to determine if a transfer could occur, not the Minister or a public servant. This is peculiar as sub-delegation of a public power to a private entity seems highly suspect. The sub-delegation analysis is usually done in two steps: (1) can the power be sub-delegated at all; and (2) is the sub-delegation proper. Justice Rennie found that nothing in the legislation prohibited sub-delegation and that most conditions involved objective standards and thus left no real decision-making power in the hands of Marine Harvest. Condition (iv), on the other hand, was ruled improper since it involved a subjective decision by Marine Harvest’s veterinarians on the level of acceptable risk for a fish transfer.

I want to focus for the remainder of this post on the first part of the sub-delegation analysis: the permissibility of sub-delegation; specifically the permissibility of sub-delegating public powers to a private entity. My argument is that in the absence of clear language in the legislation permitting the sub-delegation of a public power to a private entity, such sub-delegation should always be illegal, particularly in environmental law. Firstly, it violates the principle of responsible government. Ministers can sub-delegate powers to public servant because they are responsible for the actions of their subordinates in front of Parliament (and thus to the public). Ministers retain ultimate control over the decisions of their sub-delegates. This is not the case for private entities over which Ministers do not hold direct control. Once a business like Marine Harvest gains control over a public power, we lose public accountability for the decision-making process.

Secondly, the sub-delated power in question is discretionary. This means that the Minister usually retain a lot of leeway to decide one way or another. While the discretion here was limited by the context, this context still allowed, as Justice Rennie found, for a certain degree of leeway. We are thus faced with a situation where a decision related to the protection of fish—a decision that is (relatively) discretionary—is in the hand of the industry whose activities cause harm to fish. This is problematic because, as the popular saying goes, it is like asking the dog to guard to puppy chow. The Minister may not be entirely objective when it comes to decision-making, but at least they have to balance various interests and concerns before making a decision. Marine Harvest would certainly be biased in favour of letting risky fish transfer happen due to its direct economic interest in the matter. Marine Harvest is not in the business of figuring out what is in the public interest. The duty to conserve fish that stems from the Fisheries Act, as recognised by Justice Rennie, is the duty of the Minister, not of the industry the legislation regulates.

Lastly, sub-delegation to private entities has the effect of preventing judicial challenges to the sub-delegated decisions. Judicial review is only available to challenge public actions, not private actions. The original issuance of the transfer licence could still be challenged, but the individual decision to transfer fish could likely not be challenge directly. This is problematic because the courts’ power of judicial review is a constitutional one; meaning that Parliament of the government cannot strip the court of this power. The sub-delegation of the application of paragraph 56(b) of the Fishery (General) Regulations to Marine Harvest seems to do just that.

Ultimately, following the Morton decision, DFO changed its approach and a board is now in charge of approving fish transfer. This is a positive development. However, DFO has continued to ignore the risk posed by PRV and the development of the precautionary principle into a robust rule has not happened. Instead, the amount of litigation surrounding aquaculture has increased. The federal government has recently decided to adopt an Aquaculture Act (consolations are under way). A lot will depend on how this act is drafted. Healthy wild salmon population will require an act that takes disease transmission seriously. But more on this in the next post of this series.

*Based in large part on: Pierre Cloutier de Repentigny, “Precaution, sub-delegation and aquaculture regulation: Morton v. Canada (Fisheries and Oceans)” (2015) 28:1 Journal of Environmental Law and Practice 125 [open access]

Selected References

Cases:

• 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town), 2001 SCC 40 (Supreme Court of Canada)
• Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (Supreme Court of Canada)
• Morton v Canada (Fisheries and Oceans), 2015 FC 575 (Federal Court)
• Ramawad v Minister of Manpower and Immigration, [1978] 2 SCR 375 (Supreme Court of Canada)

Legislation:

• Federal Courts Act, RSC 1985, c F-7 (Canada)
• Fisheries Act, RSC 1985, c F-14 (Canada)
• Fishery (General) Regulations, SOR/93-53 (Canada)

Academic Texts:

• Ann Chaplin, “Carltona Revisited: Accountability and the Devolution of Statutory Powers” (2008) 39 Ottawa Law Review 495 [open access]
• John Willis, “Delegatus Non Potest Delegare” (1943) 21 Canadian Bar Review 257 [open access]
• Matthew Lewans, ‘‘Deference and Reasonableness Since Dunsmuir” (2012) 38:1 Queen’s Law Journal 59 [open access]
• Paul Daly, “The Vavilov Framework and the Future of Canadian Administrative Law” (January 15, 2020) SSRN [open access]
• Suzanne Comtois, “L’émergence du principe de précaution en droit administratif canadien” (2006) 66 Revue du Barreau 401 [open access]