Author: chaowdur

Ethics of Immigration: Commentary #2

July 24, 2021 · Leave a comment ·

I want look at the rhetorical structure of Carens’ argument; specifically, the arrangement of chapter 10 and 11. I want to focus on the rhetorical structure rather than the content because I suspect that any comment I would make on these two chapters will be dealt with in his last section.

Let me begin by commenting on how Carens orders his argument in this section, and how this order has rhetorical impact. His discussion on the rights and moral claims of refugees begins with the least controversial and existing practice. He often begins his chapter by appealing to a common ground or shared intuition (often a sympathetic vignette). Here, the uncontroversial stance Carens begins with is the principle of non-refoulement (appealing to the existing practice established under the Geneva Convention). It does not take much to move from this point to the idea that refugees seeking asylum have the moral claim on the state not to be sent back into peril. Carens subtly moves the reader from their own views to his own views.

So, Carens jabs, we agree that the principle of non-refoulement gives refugees moral claims on the state, but there are also implications to holding this view (what Carens calls “the moral logic”). As it stands, the principle does not fare well with our shared belief of equality (or justice): that is, there seems to be an issue with proportionality insofar as states being more burdened than others. This line of thinking is intuitive – for instance, if you and I had the duty of taking out the garbage whenever it is full, and I took it out for the past two months, I have grounds to complain that we are not sharing this duty equally. So what is a way that we can share the burden of the principle of non-refoulement? According to Carens, a formal duty for all countries to admit some refugees – going back to the garbage example, everybody now has a duty to take out the trash, not just the one who sees that it is full.

Since all states have a duty to accept some refugees, can we really deny entry? Again, it seems to be a consequence or implication of our shared beliefs in equality and freedom. This is Carens’ knockout punch, which seemed so far off in the distance at first, but he weakened our guards with his previous argument. He established that all borders should be somewhat open to meet the proportionality need of refugees. Now that we believe that all borders should be somewhat open, the open borders pill is much easier to swallow (and it essentially uses the same consistency reasoning as before – Carens calls this the “cantilever argument”).

I think we can learn from Carens about the importance rhetorical structure for philosophical argument. Philosophers often purport to be the pinnacle of abstract thinking, but many bias and preconceptions subtly disrupt our thinking. Rhetoric can be used to mitigate this. As someone who argues for a counterintuitive position, Carens makes excellent use of this rhetoric.

Ethics of Immigration: Commentary #1

July 24, 2021 · Leave a comment ·

I would like to focus this week’s reflective commentary on an objective Carens addresses at the end of chapter 8. His conditions for social membership (and by extension, any moral claims) rest on two conditions: residence and time. But is physical presence within the boundaries of a state sufficient for social membership? Carens thinks so, but I am hesitant to agree.

I was relieved to see Carens address this worry about his criteria for social membership (viz. residence and time) being too loose to justify social membership. Carens adds that his motivations were to make the conditions for social membership as verifiable as possible – in his words, “relevant, objective, and easy to measure.” However, the concern is that the conditions for social membership are not rigorous enough to filter out cases where people do not seem to meet Carens’ notion of “social membership.” Imagine a non-native born person that hides under a rock for twenty years. It is hard to say that this person fits Carens’ notion of “social membership” despite meeting his criteria.

Carens responds by saying that such “hypothetical questions” are the fringe cases; however, he does entertain the objection. Carens asks us to imagine the recluse (i.e. no job, no social ties, no political contributions; essentially living under a rock) native born person. We would not say that this recluse is not a citizen, so we should carry that intuition to cases of non-native born persons. I think this is specious.

If I want to push back on Carens’ point, I would have to find some non-arbitrary difference between the native born recluse and the non-native born recluse. I do not have anything fully substantive to offer, but I want to suggest that there is something different about the native born recluse which affords them social membership which the non-native born recluse does not have. I think this thing is the simple the fact that they were born here.

Let me try to explain a little more while also building a possible third condition. I think a shared narrative is essential to social membership. By this I mean how one’s life narrative – entailing whatever their conception of a good life, like projects, relationships, career, etc. – is tied with their society (whatever the “social” part of “social membership” entails). Now, how does this idea connect to the aforementioned objection?

The native born recluse has their narrative tied simply in virtue of birth. The must have had ties to parents, a network of medical professionals, and some minimal provisions to subsist at their birth. Their narrative is minimally and inextricably tied to their society by birth, granting them necessary social membership; the non-native born recluse, however, does not have this privilege.

Is this narrative condition substantive enough to be a condition for social membership? It might be in that it seems to measure one’s ties to society. One’s tie to society might be verified through personal ties, one’s career, or even knowledge of the society’s narrative (this might justify testing for citizenship, that is, through knowledge of the society’s principles and practices).

My conception of “narrative” is suggestive and vague. Nevertheless, I want to say that Carens’ two conditions for social membership are too broad.

Administrative Law Memo: Sample #3

July 24, 2021 · Leave a comment ·

Discussion[1]

The current standard of review by the RAD for assessing procedural fairness and credibility findings in RPD decisions

As established in Huruglica,[2] the RAD reviews RPD’s conclusions of fact or law by a standard of correctness.[3] This is further affirmed in Del Solar, however, the modifier “typically” is added to signal an unaddressed ambiguity in Huruglica. [4] The issue in Del Solar was whether the “the RAD should show restraint or deference to some of the RPD’s conclusions on credibility where the RPD was better-positioned to make them.”[5] The deference by RAD given to the RPD suggests a departure from the correctness standard. However, this was firmly rejected in Del Solar because RAD’s function is not to show deference to the RPD and to do so would duplicate the standard of reasonableness which is reserved for judicial review.[6] The function of the RAD is clarified and made harmonious with the legislative objective:[7] the RAD must take a non-deferential approach and conduct a correctness review of the RPD’s decisions.[8] Del Solar’s judgmentis treated positively.[9]

The correctness standard for the RAD in assessing the RPD straightforwardly applies to procedural fairness. All divisions of the IRB are bound by “fairness and natural justice.”[10] The deference tethered to the reasonableness standard does not fit with this statutory objective.[11] The correct assessment of the measure of sufficient procedural fairness can be found in Baker.[12] There are still some puzzling caselaw,[13] but procedural fairness certainly attracts the correctness standard. This is not a live issue.

The current standard of review by the Federal Court for assessing RAD’s assessment of the standard of review[14]

Judicial review of the RAD’s assessment of the RFD is generally deferential and employs the reasonableness standard.[15] This means that the court has a limited role and is not tasked with rehearing the case from scratch.[16] More specifically, the FC polices the tribunal’s decisions for overstepping the rule of law,[17] and whether the RAD’s decision contains such reviewable errors.[18] Oddly, an issue of interpreting an administrative body’s home statute gives rise to the presumption of reasonableness.[19] The reasonableness standard is further explicated in Dunsmuir as “concerned mostly with the existence of justification, transparency and intelligibility…”[20] Additionally, the deference threshold for errors of fact on review is one of “palpable and overriding error.”[21]

By and large, judicial review shows a high amount of deference to expert administrative decision-makers. This reasonableness standard in judicial review is straightforward for assessing the RAD’s assessment of credibility.[22] Del Solar is a strong example of how such an analysis ought to proceed. The FC is clear of their narrow role in finding reviewable errors.[23] This is not a live issue.

The standard of review for the FC for issues of procedural fairness is nuanced. In practice, it is often difficult to distinguish substantive matters from purely procedural issues.[24] As a result, Baker defines the boundaries of procedural fairness through a contextual analysis, which is different from a standard of reasonableness.[25] While some courts have shown deference on procedural matters,[26] Justice Binnie, affirming Dunsmuir, explains that procedural issues “are to be determined by a court on the basis of a correctness standard of review.”[27] There is ambiguity in the conceptual relation between “correctness” and “deference.”

“Deference” is a problematic term to apply to procedural fairness, where “even though there is awkwardness in the use of the terminology, this reviewing exercise is ‘best reflected in the correctness standard’ even though, strictly speaking, no standard of review is being applied.”[28] The correctness standard is for mere practical parlance and does not denote how procedural fairness is conceptualized. In one sense, deference might be given to administrative bodies in their procedural choices, but it cannot undermine procedural fairness simplicter. Consequently, the question of what standard is applied is in one sense moot. It is all about assessing the overall outcome and not about the mode or standard by which a particular outcome is reached.[29] The “correctness” and “reasonableness” standards seem to collapse into a contextual standard of fairness within the circumstances.[30] Again, this illustrates the robust legacy of Baker.[31]

Post-Vavilov changes to the above[32]

Tracking the relative significance of Vavilov may call for a detailed historical look at key doctrinal developments, like Pushpanathan,[33] Dunsmuir,[34]or Doré.[35] This approach is too broad for the purposes here.[36] If we take Del Solar is a starting point, there are not many substantive “changes” in the law in terms of the standards of review; through this lens, Vavilov has more of a heuristic function in clarifying deviations in the caselaw and streamlining the analytic pathway.[37] Nonetheless, there seem to be some internal tensions in Vavilov’s notion of deference which need to be spelled out.

Vavilov establishes the standard of reasonableness as the starting point for all cases of judicial review. There are two categorical exceptions which trigger the standard of correctness: explicit appeal rights in the statute and rule of law related issues.[38] Under rule of law related issues, there is an open list which includes constitutional issues, questions of central legal importance, and issues of overlapping jurisdiction.[39] The rationale for the default reasonableness standard is based on respecting legislative decisions to confer decision-making powers on administrative bodies.[40] More precisely, reasonableness is contextual and must take into consideration that “administrative justice” does not look like “judicial justice.”[41] This approach is supposed to have the effect of simplifying the law and ensure subsequent uniformity of procedure.[42]

Gomes,[43] a post-Vavilov case, affirmed the approach taken above in Del Solar.[44] Gomes used the standard of reasonableness to guide their assessment of the RAD’s decision and narrowed their reviewable scope to consistency with the rule of law. More specifically, the reasonableness standard looks to determine “whether the RAD’s process and conclusions are justified, transparent and intelligible in the light of its underlying rationale.”[45] The court further affirmed that the RAD’s standard of review for assessing the RPD’s decision is correctness.[46] Gomes illustrates the symmetry in the level of deference between Del Solar and Vavilov.

Importantly, Vavilov’s deferential approach is cashed out differently between questions of credibility and questions of procedural fairness. For questions relating to credibility, the reasonableness standard straightforwardly persists and courts must look for palpable and overriding error.[47] Next, Vavilov makes clear that procedural fairness is not collapsed into the reasonableness review. It is crucial to disentangle procedural fairness and substantive review in Vavilov. The example used is the adequacy of reasons. In one sense, the procedural “inadequacy”of reasons can be a relevant reasonableness issue because it fails to be the “requisite standard of justification, transparency and intelligibility.”[48] However, in another sense, procedural fairness guarantees are entirely separate from the substantive review analysis in Vavilov and the appropriate starting point would instead begin with Baker. Again, it seems that the terminology employed in Vavilov results in a disjointed conception of procedural fairness.[49]

Promising areas for reform[50]

The current Vavilov framework appears particularly vulnerable to a body of inconsistent decision-making by administrative “experts,” which triggers further judicial intervention.[51] While the expertise (perceived or otherwise) of the administrative decision-makers appropriately do not determine the selection of the standard of review, it is inadequate to waive away the question of why the legislature defers to administrative experts with the superficial answer of legislative “institutional design.”[52] In the context of the IRB, members are rarely legal experts and fail to demonstrate expertise on key indicators of proficiency in the role.[53] It is problematic that judges, with legal expertise, ought to defer matters of law to non-legal experts under the guise of blind deference.

On a theoretical level, the problem of deference is more complex. The justification for deferring to non-legal experts is to strike a balance between the two poles of legislative deference and judicial activism.[54] Del Solar correctly observed that correctness and deference are mutually exclusive concepts,[55] but it is not obvious that a more rigorous judicial review necessarily implies that there is improper respect for legislative intent. As was the case for analyzing procedural fairness, the established categories of “correctness” or “reasonableness” are at best awkward and clunky ways of explicating procedural fairness. Instead, this vexing language game can be explained by looking to the purpose:[56] for procedural fairness, an aspirational ideal of natural justice.[57] In taking this purpose-driven method derived from Baker, [58] we end up with a contextual, result-oriented approach.[59] In similar fashion, with respect to the deference shown to administrative actors, the approach should look to the aspirational ideal of the rule of law. [60]

To be clear, a charitable reading of Vavilov must first be constructed before the rule of law problem becomes identifiable. To begin, legislative intent should be understood as upholding the rule of law.[61] The question that emerges is how non-legal experts uphold this ideal in the administrative context.[62] A key assumption seems to be that judges and judicial scrutiny does not automatically bring us closer to the rule of law.[63] In fact, the legislative purpose of showing deference to administrative decision-makers is to move closer to the ideal of the rule of law.[64] The putative expertise of administrative decision-makers is supposed to give texture to the intention of the governing law.[65] The judiciary may do its part in guiding this process to ensure that rights are protected and experts are not acting unreasonably, but it is cautioned that judicial overreach and judges imposing their own conception of justice frustrates the intentions of parliament and undermines the rule of law.[66]

The rule of law should be understood in terms of protection against arbitrariness.[67] Vavilov emphasizes that reasons in the administrative decision-making process can ‘‘shield against arbitrariness as well as the perception of arbitrariness in the exercise of public power.”[68] What is “arbitrary,” in other Canadian law contexts, [69] connotes when reasons are not rationally connected to the purpose of an act.[70] A parallel can be drawn between how the “test” in Baker provides a guide to realizing the ideal of natural justice and how the “test” for arbitrariness can be used as a guide to realizing the ideal of the rule of law.

Tying this back to Vavilov, the framework fails to imbed arbitrariness into its analysis and thereby fails to capture scenarios where the rule of law is being undermined.[71] Of course, Vavilov makes clear that rule of law issues attracts the correctness standard.[72] However, arbitrariness by decision-makers does not fit into the enumerated grounds of a rule of law issue in Vavilov and it is unlikely to be established as a new ground. [73] As the majority in Vavilov puts it, “questions of central importance are not transformed into a broad catch-all category for correctness review.”[74]

A salient instance of a violation of the rule of law which the Vavilov framework problematically permits is consistency across administrative decisions. Stare decisis is one principle to ensure non-arbitrariness and consistency in the law whereby the same facts do not arbitrarily deviate in legal adjudication.[75] However, administrative decision-makers do not have this safeguard. Therefore, such deference to arbitrary decision-makers or to the effect of arbitrary decisions repugnantly undermines the rule of law.[76]

By way of practical recommendations, advocacy and test case litigation should focus on scenarios where expert and procedural fairness are overlapping concerns.[77] More specifically, when a RAD decision ends up in Federal Court, a good test case would have the following elements: the reasons provided by the RAD are procedurally sufficient (thus satisfying Baker), the reasons are pro tanto “reasonable” under Vavilov,[78] and yet the reasons are arbitrary.[79] This will illustrate the need for protection against arbitrariness within the reasonableness standard.[80]

This line of argumentation must confront objections. One may claim that the existing Vavilov framework comprehensive enough to address all these concerns. Granted, Vavilov makes room for constitutional issues and international legal obligations. So, perhaps egregious violations to individual rights and rule of law or arbitrariness problems can be resolved on these grounds. To its detriment, this response is insensitive to both Vavilov and Baker. Contrary to Vavilov, this reduces the “streamlining” and adds complex litigation into the system. Contrary to Baker, individual rights on such impactful matters are not better protected by having to go through the justice system. This generates access to justice issues for individuals who are already vulnerable and marginalized. In a word, Vavilov’s reasonableness review needs more scrutiny.[81]

To be sure, it is certainly possible to use this line of argumentation and instead argue that the correctness standard is more appropriate.[82] However, the problem then is the failure to take seriously the anxieties against judicial activism and undermining the legislative intent of deferring to expert administrative decision-makers.[83] In essence, a proposal for expanding the correctness standard would be insensitive to the underlying rationale of the Vavilov framework. The respect for legislative institutional design must be preserved and advocacy is less persuasive when overly revisionary.[84]

By and large, the upshot of the proposal here is again modelled on Baker: where the rule of law significantly impacts the individual, experts must demonstrate non-arbitrariness, or a rational connection between the purpose of the tribunal and the reasons provided. This would be an added consideration for reasonableness. This certainly overlaps with questions relating to the adequacy of reasons since demonstrating non-arbitrariness demands a level of comprehensive reasons. Nevertheless, it is important to emphasize that non-arbitrariness demands the “right kinds” of reasons.[85]

There is some movement in this direction already.[86] One useful tool to operationalize this change is the use of “jurisprudential guides.” [87] While administrative decision-makers are not bound to use such guides, it does provide some support insofar as making explicit what the judiciary is looking for and creating a notional checklist for the right kinds of reasons. Jurisprudential guides bridge the gap between judicial expertise and the expertise of the administrative decision-makers. One clear example where a jurisprudential guide would be helpful is in the realm of statutory interpretation. Legal experts have nuanced debates on the minutia of legislation. This is clearly an area where deference is inappropriate and it would be unreasonable to expect administrative experts to be legal experts.[88]

[1] N.B. I should make explicit someassumptions and the corresponding reasoning in this legal memo. I have omitted a “facts” section because I understand the assignment to be driven by theory rather than facts – that is, we are not dealing with a particular case, rather we are looking at broad patterns in the jurisprudence. I also omitted an issue section because they are straightforwardly described by the supervising lawyer and I have instead opted for more descriptive headings. Additionally, I am assuming that most of the focus is on the last topic because the purpose of memo is for advocacy and test litigation – that is, it would make little sense to write extensively about the existing procedures, rather the existing procedures are merely the foundations for building a critique. Finally, I have deliberately excised details and specific case law relating to refugee law because they distract from the overall administrative law argument; in any case, refugee law serves as an example of how administrative principles take shape in practice. I appreciate that my role is an articling student for the Canadian Association of Refugee Lawyers, but my gripe is focused on Vavilov and what it means for the IRB (and not the other way around).

[2] Canada (Citizenship and Immigration) v Huruglica, 2016 FCA 93, 396 DLR (4th) 527 [Huruglica].

[3] The caselaw before Huruglica is quite messy as to the question of the level of deference RAD owes to RPD.

[4] “…the Federal Court of Appeal held that, when considering the RPD’s factual and legal conclusions on appeal, the RAD must typically apply a correctness standard of review.” (Emphasis added.) Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, 2018 CF 1145 [Del Solar] at para 5.

[5] Ibid at para 6.

[6] Ibid at para 136.

[7] Canada (Public Safety and Emergency Preparedness) v Gebrewold, 2018 FC 374, 2018 CF 374 at para 25.

[8] In Del Solar, the court rejected the idea of “epistemic deference” and the idea that RPD may be “better-positioned.” See Del Solar, supra note 7 at para 55.

[9] See, for example, Hamid c. Canada (Citoyenneté et Immigration), 2018 FC 1246, 2018 CF 1246.

[10] IRPA, supra note 2 s 162(2).

[11] Note: “one should always keep in mind that the very first objective of the IRPA (s 3(2)(a)) is to recognize that the refugee program is about saving lives and offering protection to the displaced and persecuted…” Huruglica, supra note 5 at para 53.

[12] Baker v. Canada (Minister of Citizenship & Immigration), 1999 SCC 699, [1999] 2 SCR 817 [Baker] at paras 21-28.

[13] This seems to suggest some confusion even after Huruglica. See, for example, Corvil c. Canada (Citoyenneté et Immigration), 2019 FC 300, 2019 CF 300.

[14] It should be clarified that the scope of review and standard of review is an important distinction. The “scope” generally refers to the kinds of issues that are allowed in appeal; on the other hand, the “standard” generally refers to the level of scrutiny or deference.

[15] Groia v Law Society of Upper Canada, 2018 SCC 27, 2018 CSC 27 at paras 45–47.

[16] Singh v Canada (Citizenship and Immigration), 2014 FC 1077, 2014 CF 1077 at para 9.

[17] Khela v. Mission Institution, 2014 SCC 24, 2014 CSC 24 at para 37.

[18] Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 128, 2017 CAF 128 at para 78

[19] Williams Lake Indian Band v Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, 2018 CSC 4 at para 138. I argue below that this is a good example of an area that is still problematic post-Vavilov and calls for further reform.

[20] Dunsmuir v. New Brunswick, 2008 SCC 90, [2008] 1 SCR 190 [Dunsmuir]at para 47.

[21] Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235 at para 10.

[22] Assuming they are questions of fact or mixed questions of law and fact. Some issues of law, even prior to Vavilov, seem to questionably attract the correctness standard. See, for example, Bakare v. Canada (Minister of Citizenship and Immigration), 2017 CarswellNat 656, 2017 FC 267.

[23] Again, to the existence of justification, transparency, and intelligibility within the decision-making, and to the threshold of palpable and overriding error.

[24] See Paul Daly, ‘‘Canada’s Bipolar Administrative Law: Time for Fusion,” (2014) 40:1 Queen’s LJ 213.

[25] For instance, procedural fairness for RPD may require sufficient reasons because of the importance of the matter to the individual. This is less deferential than the reasonableness standard.

[26] Knight v. Indian Head School Division No. 19, 1990 CarswellSask 146, [1990] 1 SCR 653 at 685. See also, Maritime Broadcasting System Ltd. v. Canadian Media Guild, 2014 FCA 59, 2014 CarswellNat 474 at para 50.

[27] Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 SCR 339.

[28] Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2018] FCJ No 382 para 54.

[29] This point is further supported by post-Vavilov case law. See, for example, Tsigehana v. Canada (Citizenship and Immigration), 2020 CarswellNat 1220, 2020 FC 426.

[30] Some see this as the “correctness” standard, but the use of this term here is confusing. However, if there is not much purchase in the argument that procedural fairness does not fit into either category of “reasonableness” or “correctness,” then it is perhaps more appropriate to call the standard “correctness” because it denotes a higher standard. See Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 SCR 559.

[31] For a closer analysis of the significance of Baker, see David Dyzenhaus & Evan Fox-Decent, “Rethinking the Process/Substance Distinction: Baker v. Canada” (2001) 51:3 UTLJ 193.

[32] My reading of Vavilov squarely stays within the majority opinion. The concurring reasons agree with much of what the majority says: Vavilov, supra note 1 at paras 291-296, 306, 311-313.

[33] Pushpanathan v. Canada (Minister of Employment & Immigration), [1998] 1 SCR. 982, [1998] SCJ No 46 [Pushpanathan].

[34] Dunsmuir, supra note 22.

[35] Doré c. Québec (Tribunal des professions), 2012 SCC 12, [2012] 1 SCR 395 [Doré].

[36] The focus here is to outline the changes from Vavilov in the analysis of the standard of review for credibility and procedural fairness, as put forth above. As a result, peripheral questions and deep dive into the case law must be set aside for the sake of clarity and brevity.

[37] Some may balk at this approach as it flattens the vast body of conflicting case law. I do not doubt that Vavilov’s impact is far greater than I have suggested, especially through its elucidation of the rationale behind judicial deference. Still, I write this within only a year of the decision and it is too early for sweeping statements about its impact on administrative law.

[38] See Vavilov paras 23, 47, 52…

[39] A statutory right appeal attracts a correctness standard on questions of law because (as elucidated below) the court looks to show deference to the legislature in prescribing a standard of review. This means that appeals can go directly to the court and the court then has a rigorous hand-on role to assess for correctness (rather than laxly reviewing for reasonableness). Vavilov, supra note 1 at paras 34-35.

[40] In other words, the legislature respects the expertise of the administrative decision-maker and the courts must follow suit. See Vavilov, supra note 1 at para 30.

[41] Vavilov, supra note 1 at para 92.

[42] The majority considers two ways a decision can be unreasonable. First, the reasoning must be “both rational and logical” and not “fail to reveal a rational chain of analysis”: Vavilov, supra note 1 at para 102. Second, the reasoning “must be justified in relation to the constellation of law and facts that are relevant to the decision”: Vavilov, supra note 1 at para 105.

[43] Gomes v. Canada (Citizenship and Immigration), 2020 FC 506, 2020 CarswellNat 1343 [Gomes] at paras 25 and 27.

[44] As far as the affect of Vavilov on the decision making goes, Gomes illustrate the simplicity of Vavilov’s analytic framework as compared to Del Solar and its hodgepodge of supporting case law.

[45] Ibid para 42.

[46] Ibid para 40.

[47] Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235.

[48] Vavilov, supra note 1 at para 98.

[49] To be sure, it would be a mistake to confuse the traditional distinction between substantive review and procedural fairness. However, depending on one’s theoretical commitments, this traditional distinction bleeds through, especially when considering what rights an individual is entitled to. For an excellent discussion on administrative law theory, see Martin Loughlin, “Procedural Fairness: A Study of the Crisis in Administrative Law Theory” (1978) 28:2 UTLJ 215.

[50] Much of the ideas here derive from pre-Vavilov commentary on Doré and general standard of review literature. See: Christopher Bredt & Ewa Krajewska, “Doré: All That Glitters is Not Gold” (2014) 67 SCLR 339; Lorne Sossin & Colleen Flood, “The Contextual Turn: Iacobucci’s Legacy and the Standard of Review in Administrative Law” (2007) 11:54 UTLJ 581 at 591; Stephen Breyer, “Judicial Review of Questions of Law and Policy” (1986) 38:4 Admin L Rev 363; Victoria Wicks, “What Ktunaxa can teach us about Doré” (2018) 31:2 Can J Admin L & Prac 217.

[51] This is not a novel issue that is specific to Vavilov – rather, it an old criticism that is revived against the existing standard of review framework, which incidentally is Vavilov. See, for example, Lorne Sossin & Colleen M Flood, “The Contextual Turn: Iacobucci’s Legacy and the Standard of Review in Administrative Law” (2007) 57:2 UTLJ 581.

[52] Vavilov, supra note 1 at para 24.

[53] Examples include: difficulties in evaluating evidence, assessing credibility, and conducting hearings; problems in coping with vicarious traumatization and uncontrolled emotional reactions; poor knowledge of the political context, false representations of war, and cultural misunderstandings or insensitivity. See Cecile Rousseau et al, “The Complexity of Determining Refugeehood: Multidisciplinary Analysis of the Decision-Making Process of the Canadian Immigration and Refugee Board” (2002) 15:1 J of Refugee Studies 43.

[54] A coherent doctrinal narrative of judicial review is difficult to achieve due to the contentious nature of fundamental questions in this area of jurisprudence. For a look into such questions, see David Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency” (2016) 42:1 Queen’s L.J. 27.

[55] Del Solar, supra note 7paras 55-59.

[56] Linguistic approaches to conceptual analysis in law can be quite helpful for legal reform. See, for example, Brenda Danet, “Language in the Legal Process” (1980) 14:3 Law & Soc’y Rev 445.

[57] Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 SCR 1170, 1990 CarswellMan 235 at 1204.

[58] Note the appropriation of the language from Baker in Vavilov, supra note 1 at para 133.

[59] Doré, supra note 22. See also, Vavilov, supra note 1 at para 76.

[60] Some have also pushed the idea that the adequacy of reasons is not a rule of law issue. See, for example, Wawanesa Mutual Insurance Co. v. Renwick, 2020 ONSC 2226, 2020 CarswellOnt 5073 at paras 47-49. This objection undermines my entire argument and must be swiftly addressed. There are a number of passages in Vavilov which run contrary to this approach: ‘‘administrative decision-makers must adopt a culture of justification and demonstrate that their exercise of delegated public power can be ‘justified to citizens in terms of rationality and fairness’”[…] “the standard of review it applies must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law” [….] ‘‘the provision of reasons for an administrative decision may have implications for its legitimacy, including in terms both of whether it is procedurally fair and of whether it is substantively reasonable.” (Emphasis added.) Vavilov, supra note 1 at paras 14, 23, 81.

[61] See, for example: Peter W Hogg & Cara F Zwibel, “The Rule of Law in the Supreme Court of Canada” (2005) 55:3 UTLJ 715; Richard H Fallon Jr, “The Rule of Law as a Concept in Constitutional Discourse” (1997) 97:1 Colurn L Rev 1; Raz, Joseph. “The Rule of Law and Its Virtue” in Robert L. Cunningham, ed, Liberty and the Rule of Law (College Station: Texas A&M University Press, 1979); Lorraine E Weinrib, “The Supreme Court of Canada in the Age of Rights: Constitutional Democracy, the Rule of Law and Fundamental Rights under Canada’s Constitution” (2001) 80:1-2 Can Bar Rev 699.

[62] David Dyzenhaus, “The Rule of (Administrative) Law in International Law” (2005) 68:3&4 Law & Contemp Probs 127.

[63] Vavilov, supra note 1 para 92.

[64] Audrey Macklin, “Charter Right or Charter Lite? Administrative Discretion and the Charter” (2014) 67 SCLR 30.

[65] For example, laws created by non-medical professional which govern medical professionals are given a more nuanced interpretation by other medical professionals. For an elaboration on the justification for deference, see David Dyzenhaus, “Dignity in Administrative Law: Judicial Deference in a Culture of Justification” (2012) 17:1 Rev Const Stud 87. For a historical-doctrinal justification, see David Mullan, “The Supreme Court of Canada and Tribunals – Deference to the Administrative Process: A Recent Phenomenon or a Return to Basics” (2001) 80:1-2 Can Bar Rev 399.

[66] Paul Daly, “The Unfortunate Triumph of Form over Substance in Canadian Administrative Law” (2012) 50 Osgoode Hall L.J. 317.

[67] This formulation is found in Reference re Secession of Quebec, [1998] 2 SCR 217, 161 DLR (4th) 385. Generally, the rule of law is treated as nebulous concept in Vavilov and it is difficult to pin down in precise terms. A running theme, however, is that administrative exercise of power needs to be justified in relation to the purpose of empowering body (e.g. the tribunal, the statute, or even something broader like the democratic will of the people embodied in the legislature…)

[68] Vavilov, supra note 1 para 79.

[69] Canadian jurisprudence on arbitrariness is also made explicit in the following Supreme Court of Canada cases: PHS Community Services Society v. Canada (Attorney General), 2011 SCC 44, [2011] 3 SCR 134; Bedford v. Canada (Attorney General), 2013 SCC 72, [2013] 3 SCR 1101; Carter v. Canada (Attorney General) 2015 SCC 5, [2015] 1 SCR 331.

[70] For example, a “reasonable” forensic expert on a refugee tribunal might claim that an individual shows a pattern of lying, the forensic expert is transparent about their analysis, and the analysis is intelligible. However, the forensic expert can be said to be “arbitrary” in that a forensic analysis is not rationally connected to the purpose of refugee tribunals. A philosophical distinction between “de dicto” and “de re” may help clarify things. It helps to clarify the seemingly contradictory belief that something is both reasonable and arbitrary. It might be reasonable de dicto, but arbitrary de re. See Alvin Plantinga, “De Re et De Dicto” (1969) 3:3 Noûs 235.

[71] A clear example in the IRB context is when the administrative experts fail to show their expertise in the decision-making. Since their expertise plays no role in their decision-making, the decision-making becomes arbitrary insofar as the decision is not rationally connected to the purposes of the tribunal. One of the purposes that is unfulfilled is the legislative intent of having expertise in the decision-making process to enhance the rule of law. Another unfilled purpose is having a fair, internally consistent decision-making process for refugees.

[72] Under Vavilov, rule of law issues remains a vaguely narrow yet apparently open list. Rule of law issues, in principle, can go beyond the three enumerated grounds, but it is unclear why they are non-exhaustive.

[73] Rather, arbitrariness is better fits with procedural fairness and adequacy of reasons, which merely informs the reasonableness review. Note: “…the requirements of the duty of procedural fairness in a given case — and in particular whether that duty requires a decision-maker to give reasons for its decision — will impact how a court conducts reasonableness review.” Vavilov, supra note 1 at para 76.

[74] Vavilov, supra note 1 at para 61.

[75] Even minor threats to the rule of law are made stark when the stakes are particularly high, as is the case in the IRB context. See Lewis F Powell Jr, “Stare Decisis and Judicial Restraint” (1990) 47:2 Wash & Lee L Rev 281.

[76] For a careful analysis on the Canadian jurisprudence connecting the rule of law to arbitrariness, see Mary Liston, “Witnessing Arbitrariness: Roncarelli v. Duplessis Fifty Years On” (2010) 55:3 McGill LJ 689. See also Barry, Brian. “Equal Opportunity and Moral Arbitrariness” in Julian Lamont, ed, Distributive Justice (Milton Park: Routledge, 2016)

[77] Under Vavilov, it is not up to the court to determine whether or not an administrative decision-maker is an expert, so there needs to be some other metric of determining expertise. As suggested in Gomes, the RAD must consider the “upstream” purposes, that is, the Federal Court potentially reviewing the RAD’s decisions. (See Gomes, supra note 47 at para 42.) This means that the expert administrative decision-makers must do more work for the Federal Courts in proving that they are experts. Practically, this also means that administrative decision-makers need to elaborate on their reasoning and provide more sophisticated justifications which draw on their expertise, especially when the stakes are particularly high as in the IRB context.

[78] Namely, justified, transparent, and intelligible, and also passing the enumerated correctness triggers. I say “pro tanto” to signal the inadequacy of the concept “reasonable” in Vavilov.

[79] On a more abstract level, arbitrariness can be understood to undermine the rule of law in a number of ways. For Rawls, arbitrariness undermines notions of egalitarian justice by violating the status of citizens as free and equal. For Dworkin, arbitrariness undermines the grounds of law as integrity by formulating a conception of law that does not fit with the law’s purpose in justifying coercion.

[80] Others use terms like “fairness” or “impartiality” instead of “arbitrariness.” See Lorne Sossin, “An Intimate Approach to Fairness, Impartiality and Reasonableness in Administrative Law” (2002) 27:2 Queen’s LJ 809. See also, Lorne Sossin, “Public Fiduciary Obligations, Political Trusts, and the Equitable Duty of Reasonableness in Administrative Law” (2003) 66:1 Sask L Rev 129.

[81] Additionally, the normal course of action for the court is to remint the matter back to the administrative decision-maker for reconsideration. (Vavilov, supra note 1 at para 136.) This exacerbates the problem because arbitrariness is not easily self-identified and the court’s corrective recourse appears limited to formulating certified questions.

[82] To reiterate, the argument is that the adverse effects of allowing arbitrariness (within Vavilov’s reasonableness review) undermines of the rule of law. One may argue that “reasonable” and “arbitrary” are mutually exclusive, but “reasonable” here is a vague term and defined in relation to “correctness.” Linguistic analyses or semantic distinctions do not provide guidance here. This “arbitrariness” is also not “correctness” because it is possible to pass the arbitrariness standard yet fail the correctness standard.

[83] The classic example is the Lochner era in American legal history. For a thorough explication, see Stephen A Siegel, “Lochner Era Jurisprudence and the American Constitutional Tradition ” (1991) 70:1 NCL Rev 1.

[84] The legislature expects the administrative decision-makers to have expertise which has the function of enhancing the rule of law in an administrative tribunal context. As such, the current approach is more attenuated by working under the Vavilov framework, yet teasing out the importance of non-arbitrariness.

[85] For a look into the “wrong kinds of reasons problem,” see Andrew Reisner, “The possibility of pragmatic reasons for belief and the wrong kind of reasons problem.” (2009) Philos Stud 1:145 257. The right kinds of reasons in the IRB context must demonstrate expertise of the reputed experts or demonstrate a rational connection to the purpose of the tribunal.

[86] See, for example, Keqaj v. Canada (Citizenship and Immigration), 2008 FC 388, [2008] FCJ No 495.

[87] Canadian Association of Refugee Lawyers v MCI, 2019 FC 1126, 2019 CarswellNat 4404.

[88] The argument here points to a flaw in the blanket reasonableness standard in Vavilov. The flaw is understood in terms of arbitrariness, which undermines the rule of law and the deference rationale underlying the Vavilov framework. Simply put, legislature intends deference to promote the rule of law and arbitrary decisions lacking a rationale connection to that purpose is counterproductive. This insight can be placed within a larger political research projects, especially on topics relating to liberal democracies and political legitimacy. See, for example, John Rawls, A Theory of Justice, 2nd ed (Massachusetts: Harvard University Press, 1971); Thomas Christiano, The Constitution of Equality: Democratic Authority and Its Limits (Oxford: Oxford University Press, 2010); Brian Barry, Justice as Impartiality (Oxford: Clarendon Press, 1995); Nicholas Wolterstorff, Understanding Liberal Democracy: Essays in Political Philosophy (Oxford: Oxford University Press, 2016).

Administrative Law Memo: Sample #2

July 24, 2021July 24, 2021 · Leave a comment ·

Duty of Procedural Fairness

The common law trigger for the duty of fairness from Cardinal is that a decision is administrative and affects the “rights, privileges or interests of an individual.” [1] This has been applied to a number of fact scenarios and is generally a low bar.[2] The application of Cardinal to these facts are relatively straightforward.[3] First, LTB decisions are administrative in nature: the LTB is an administrative tribunal born out of the Residential Tenancies Act.[4] Second, LTB decisions do affect the rights, privileges or interests of both tenants and landlords. For example, LTB may decide whether a landlord’s eviction of a tenant was valid or not, and this decision may affect the living conditions of the tenant or the financial stakes of the landlord.[5]

Limitations on Procedural Fairness

For completeness, it is necessary to consider any statutory limitations which may override a duty of fairness.[6] For this, we need to trace the transfer of power. It is important to note that explicit legislation and policy-making can override any duty of procedural fairness.[7] Common law cannot trump statute if it insists on a structural lack of independence.[8] Of course, any statute must be constitutionally compliant and it must be consistent with limitations, such as the Charter or jurisdictional constraints. [9] However, none of these are live issue on the facts.

The LTB is born out of the RTA. There is nothing in the RTA which grants an exception to the duty of fairness, but there are further empowering statutes referenced through the RTA.[10] For example, the chair can establish rule of procedure according to the SPPA, and the SPPA is silent on limits to procedural fairness.[11] Moreover, the power of the RTA is further constrained by the ATAGAA,[12] and ATAGAA is further traced to the PSOA.[13] By and large, these statutes play a role in defining the powers of the chair, but they do not override the duty of procedural fairness.

Quantum of Procedural Fairness

A useful starting point for determining the quantum of fairness is Baker. The standard of procedural protection depends on what is at stake or how important the decision is to the individual.[14] For the LTB, the stakes are quite high.[15] Furthermore, the procedural rights of the tenants and landlords ought to be robust because the nature of the LTB’s decision is quasi-judicial and final.[16] The rights of the individuals protected by procedural fairness are commonly understood to be the right to be heard (audi alteram partem) and the right to an impartial decision-maker (nemo judex in sua causa).[17] The right to be heard is not a live issue for the LTB, so it is important to limit the focus to the right to an impartial (or unbiased) decision-maker.[18]

The standard for procedural fairness in the right to an impartial decision-maker have two thresholds depending on the facts.[19] The “lower” threshold is that the “the apprehension of bias must be a reasonable one…”[20] This means that there does not have to be actual bias proven in the mind of the decision-maker, but just a reasonable apprehension of bias. The “higher” threshold is whether there is prejudgment or a “closed-mind” incapable of persuasion.[21] The thresholds depend on the function of the administrative body. If the administrative body is adjudicative, then the appropriate test is reasonable apprehension; however, if it is regulatory or based on policy, like a popular election, then the appropriate test is closed-mind.[22] The rationale for a relaxed standard for elected members is that they usually have expressed views on public policy, and this is given more deference.[23] Defining the function of an administrative body is not always straightforward given the “spectrum” of functions.[24]

Sandra was appointed for presumably policy reasons, which suggests the closed-mind test. However, the LTB members engage in quasi-judicial, adjudicative matters, which suggests the reasonable apprehension test. This ambiguity must be explored before arriving at a solution.

Function of the LTB

If we consider Sandra and the LTB members to be not distinct but a single agent of the LTB, then we must consider the problem of overlapping function.[25] Although there is no statutory exception in the RTA which overrides procedural fairness,[26] it is not clear that Sandra’s function in reappointing LTB members generates this problem because Sandra is not involved in the adjudicative process. This point raises the more material issue: the implications of the relationship between Sandra and the LTB members.

Consider first the bright line drawn in Newfoundland Telephone between policy and adjudicative matters.[27] What is remarkable about this case is that it established that the same individual can, in principle, have a policy function at one moment while reasonably appearing to be bias (but not closed-minded), then switch to an adjudicative function and jettison the reasonable appearance of bias – in other words, switching functions clears the slate of past bias. This seems, however, to have a narrow scope in that the switch in function was limited to a single individual. In contrast, Sandra and the LTB members have separate and discrete functions.

Sandra’s Bias

It is possible to focus only on Sandra’s reappointment of LTB members and raise the issue of her bias, but this is unlikely to succeed. Recall that Sandra’s appointment is policy-driven and thus the rest for her bias is one of closed-mind. The prejudice on the part of Sandra must be such that attempts to present alternative views are “futile,” and the “appearance of bias will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter.”[28] That means that, in theory, all of Sandra’s reappointed LTB members can be staunchly committed to seeing gentrification as good and tenants as barriers to certain ends; as long as they have an open mind, they have met their duty of procedural fairness.[29]

On the current facts, all that is establish is that Sandra looks favorably towards gentrification, she reappointed 6 members who are favorable towards landlords, and there is data to buttress the fact that there are favorable remedies for landlords.[30] One possible argument is that, due to her partiality towards gentrification, Sandra cannot be persuaded to appoint any LTB member who is neutral (or more favorable towards tenants).[31] However, on the balance of probabilities, it is most likely not sufficient establish a closed mind; in principle, it is still possible for Sandra to explicitly announce her favoritism towards LTB members who favorable to landlords, and still maintain that she has an open mind.

It is likely that a sufficient pattern can be established on the part of Sandra’s bias towards gentrification, but the problem for this line of analysis is that the closed-mind test is too high a threshold. If we can establish the same bias in the LTB members themselves, we have a lower threshold to meet: a reasonable apprehension of bias.

Sandra’s Connection to the LTB Members’ Personal Bias

It is clear that the LTB has an adjudicative function.[32] Still, an argument can be mounted on Sandra’s bias, despite her non-adjudicative function.[33] To be sure, the bright line between policy and adjudicative matters in Newfoundland Telephone does not apply to this line of argument because we keep Sandra and the LTB members separate in function. The focus now is the direct (or close) connection between the bias of one appointing a decision-maker and the decision-maker themselves, which gives rise to the question of a reasonable apprehension of bias.[34]

Consider now the possibility of Sandra’s personal bias infecting the downstream decision-making of the LTB members. The argument is that Sandra’s bias connects to the reappointment and composition of the LTB, and this forms a nexus between Sandra’s bias and the bias of the LTB members.[35] The strategy is not analyzing Sandra for bias, rather it should focus on analyzing the LTB members. At this point, however, the mere fact that the composition of the LTB members reflects members who are favorable to landlords is tenuous and likely not sufficient for a reasonable apprehension of bias.[36] The use of this is to buttress the other empirical data to form a cumulative case. The statistic data suggests that Sandra’s biased composition is being realized in the form of personal bias in the LTB members.[37]

The standard of “reasonable apprehension of bias” is not a sharply defined threshold, so the applicability of the empirical statistical data to this test requires further examination.[38] In this case, what we need to establish is that a 37% increase in landlord remedies and a 23% decrease in tenant remedies is sufficient to form a pattern such that a reasonable person would perceive this as bias.[39] In arguing that this data is a pattern that establishes a reasonable apprehension of bias, it is crucial to contextualize this data with our previous point. Without connecting the data to Sandra, the case for bias becomes significantly weaker.[40] Perhaps a reasonable person would say 50% is sufficient for bias, or perhaps 25% – the point is that the exact number is arbitrary, so scrutinizing numbers alone will not strengthen the argument.[41] In order to meet such objections, we must connect the data to a line of explanation originating and ending in bias.[42]

The increased frequency of remedies for landlords and the decrease for tenants reflects a person bias in the LTB members themselves that is traced back to Sandra. This personal bias in the LTB members becomes clearer in virtue of Sandra’s mode of reappointment. Sandra biasedly chose to reappoint LTB members who themselves had the same species of bias, so the composition of the LTB members is directly connected to Sandra’s bias.[43] To reiterate, Sandra’s bias is legally unproblematic given her function, but the same bias in the LTB members is legally problematic given their functions as adjudicators. In this light, the empirical data is a reification of the LTB members’ personal bias.[44] Sandra’s bias is connected to the LTB members’ bias, and the emergent statistical data reflect “a pattern that gives rise to a reasonable apprehension of bias.”[45]

[1] Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643 at p 653, 24 D.L.R. (4th) 44 [Cardinal].

[2] There is a vast body of case law illustrating a variety of fact scenarios. To list a few: applications for immigration on humanitarian and compassionate grounds (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 [Baker]); an employer’s dismissal of an employee (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, 291 D.L.R. (4th) 577.); and professional disciplinary decisions (Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360, 407 D.L.R. (4th) 573.).

[3] While we are not specifically focusing on a particular decision made by the LTB, we are generalizing the decisions that LTB is empowered to make – more specifically, the power to make decisions insofar as they concern disputes between tenants and landlords.

[4] Residential Tenancies Act, 2006, S.O. 2006, c. 17 [RTA].

[5] Knight provides further guidance with a three-prong test, which consists of the nature of the decision, the relationship, and the impact of the decision: Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 at 669-677, 335 D.L.R. (4th) 513 [Knight]. The nature of the LTD is a quasi-judicial institution and the final adjudicator between landlord-tenant disputes. The relationship, or the nature of the decision, is one of adjudication. Finally, the impact is again the interests of the tenants and landlords. The LTD have a duty of fairness towards both landlord and tenant, and there are no statutory limitations on this duty.

[6] Kate Glover Berger, “Chapter 5: The Principles and Practices of Procedural Fairness” in Coleen Flood & Lorne Sossin, Administrative Law in Context (3rd ed) (Toronto: Emond P, 2018) 183-236.

[7] See, for example, Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504.

[8] Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, 2001 SCC 52, 204 D.L.R. (4th) 33 [Ocean Port].

[9] Evan Fox-Decent & Alexander Pless, “Chapter 6: The Charter and Administrative Law Part 1: Procedural Fairness” in Coleen Flood & Lorne Sossin, Administrative Law in Context (3rd ed) (Toronto: Emond P, 2018) 237-252. See also Canadian Charter of Rights and Freedoms, s 8, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 7.

[10] See, for example, RTA, supra note 4 at ss. 173, 178, 180, or 182.2(2).

[11] See RTA, supra note 4 at s. 176(1)-(2). See also Statutory Powers Procedure Act, RSO2006, c. 17, s. 176(2) [SPPA].

[12] Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5 [ATAGAA].

[13] Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Sched. A [PSOA]. The PSOA imposes general rules for public bodies (see ibid at s. 58-59).

[14] Baker, supra note 2 at para 25.

[15] An addition to a landlord’s pecuniary interests, an individual tenant’s place of residence is (arguably) essential and the decision has a significant impact on their wellbeing.

[16] Baker, supra note 2 at para 55.

[17] Van Harten, Gus; Gerald Heckman & David J Mullan. Administrative Law: Cases, Text, and Materials, 7th ed (Toronto: Emond Montgomery, 2015).

[18] I do not argue “institutional” bias here, nor do I think it would have much success on the facts; instead, focus on “personal” bias. The authoritative case for institutional bias is 2747-3174 Quebec: 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 SCR 919, 140 D.L.R. (4th) 577 [2747-3174 Quebec]. Institutional bias commonly refers to the operating processes or structure being independent. There are established considerations or “indices of independence” which are applied to quasi-judicial bodies like the LTB. For example, security of tenure, fixed renumeration independence, and administrative control: Martineau v. Matsqui Institution, 106 D.L.R. (3d) 385, S.C.J. No. 121, [1980]. Even though the same standard of reasonable apprehension of bias applies, the point is not moot because we develop a cumulative case of bias against the LTB. The general rationale for institutional bias is independence and protection from outside influences. The RTA and its empowering statutes offer some protection on this front and, according to the legislation, Sandra is acting within her capacity. Generally, Canada has relatively weak protection from institutional bias. See Gerald Heckman & Lorne Sossin, “How Do Canadian Administrative Law Protections Measure up to International Human Rights Standards – The Case of Independence” (2005) 50 McGill LJ 193.

[19] I employ the term “lower” to define the point of view of the plaintiff in the sense that she has a less onerous burden of proof in establishing bias; however, this also means that the “standard” for the decision-maker is more stringent.

[20] Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159, 112 D.L.R. (4th) 129.

[21] See Old St. Boniface Residents Assn. Inc. v. Winnipeg (City),[1990] 3 S.C.R. 1170, 75 D.L.R. (4th) 385 [Old St Boniface]. See also Save Richmond Farmland Society v. Richmond (Township), [1990] 3 S.C.R. 1213, 75 D.L.R. (4th) 425 [Richmond].

[22] See Newfoundland Telephone Co. v. Newfoundland (Public Utilities Board), [1992] 1 S.C.R. 623, 89 D.L.R. (4th) 289 [Newfoundland Telephone].

[23] Richmond, supra note 19.

[24] Newfoundland Telephone, supra note 20.

[25] It is possible to arrive at this view because the chair delegates of power to the LTB members pursuant to the PSOA (part 3), as outlined in section 182.3(1) of the RTA. The LTB members only have power insofar as being a part of the same agent as the chair. For an interesting theoretical discussion of agency and law, see Paula J Dalley, “A Theory of Agency Law” (2011) 72:3 U Pitt L Rev 495.

[26] Brosseau v. Alberta Securities Commission, [1989] 1 SCR 301, 57 D.L.R. (4th) 458. Here, Justice L’Heureux-Dubé notes: “If a certain degree of overlapping of functions is authorized by statute, then, to the extent that it is authorized, it will not generally be subject to the doctrine of “reasonable apprehension of bias” per se.”

[27] Supra note 23.

[28] Old St. Boniface, supra note 19 at 1197.

[29] At this point, we might also consider whether Sandra has any conflicts of interest. I do not think this is a fruitful line of argumentation. The test for a conflict of interest is reasonable apprehension of bias. On the facts, the relevant conflict of interest is a financial stake. As required by section 172 of the RTA, the is ostensibly no conflict because she quit her other work and put her investments in a blind trust. Arguably, her limited (and not life or at a set retirement age) may still give rise to a conflict of interest in finances. For example, she may have an interest in gentrifying the city to continue consulting on property developments (her work after 2010 was related to property development projects), which may conflict with her role in appointing LTB members (who may be favorable towards landlords and resultantly promote gentrification and her property development work even after her tenure as the Associate Chair). However, it is doubtful that this would constitute a reasonable apprehension of bias. In this case, the pecuniary interest seems “far too remote.” See Energy Probe v. Atomic Energy Control Board, 15 D.L.R. (4th) 48 at para 31, 28 A.C.W.S. (2d) 310.

[30] I frame the content of the bias specifically in terms of “gentrification,” but a more general label would be “anti-tenant orientation.” It is possible to tease out substantive implications in the differences in these terms, but the argument sketched here uses these terms interchangeably.

[31] Furthermore, her lack of appointments of LTB members who are neutral is evidence of her closed mind. We can support the fact that the 6 reappointed members are more favorable to landlords with the other data (the percent increase in landlord remedies and decrease in tenant remedies).

[32] RTA, supra note 2 at s 1.

[33] Again, the non-adjudicative function implies the closed-mind test and her bias passing this test results in a legally permissible form of bias.

[34] MacBain v. Canada (Canadian Human Rights Commission), 22 D.L.R. (4th) 119, [1985] 1 F.C. 856.

[35] While there might be a line drawn between Sandra’s policy function and the LTB members’ adjudicative function (which correspond to different standards), we should not ignore that the composition of the LTB members is held to the standard of reasonable apprehension of bias.

[36] For a discussion on justification, see Mary Liston, “Chapter 5: ‘Alert, alive and sensitive’: Baker, the Duty to Give Reasons, and the Ethos of Justification in Canadian Public Law” in David Dyzenhaus, The Unity of Public Law (Oxford: Hart P, 2004) 113-142.

[37] Put differently, while the mere fact that the 6 reappointment members were “outliers” in granting remedies to landlords is not alone a sufficient basis for a reasonable apprehension of bias, we can use the statistical data to suggest that the biased is material and emerges problematically in the decision-making process.

[38] Empirical approaches to analyzing judicial or quasi-judicial decision-making is a relatively recent phenomenon. See, for example, Ji Li, “Suing the Leviathan – An Empirical Analysis of the Changing Rate of Administrative Litigation in China” (2013) 10:4 J Empirical Leg Stud 815; Sean Rehaag, “Judicial Review of Refugee Determinations: The Luck of the Draw” (2012) 38:1 Queen’s LJ 1; Robert Danay, “Quantifying Dunsmuir: An Empirical Analysis of the Supreme Court of Canada’s Jurisprudence on Standard of Review” (2016) 66:4 U Toronto LJ 555.

[39]The success of the argument depends both on Sandra’s influence on the composition of the LTB members and the statistical data of the decisions of the LTB members. Again, we should be careful not to conflate the legal standard with a scientific one – while notions of standard deviation, P-values, and the like are important epistemic standard for science, the scientific standards do not correspond to legal standards. For an illuminating discussion on deploying different standards for legal analysis, see Brian Sheppard, “Calculating the Standard Error: Just How Much Should Empirical

Studies Curb Our Enthusiasm for Legal Standards” (2010-2011) 123 Harvard L Rev Forum 92.

[40] For an interesting discussion on contextualizing empirical evidence for legal application, see Dean M Hashimoto, “Justice Brennan’s Use of Scientific and Empirical Evidence in Constitutional and Administrative Law” (1991) 32:4 Boston College L Rev 739.

[41] For example, the reasonable person might accept that bias is not the correct explanation for the numbers, rather it is based on some other variable, like coincidence, landlords bringing stronger claims in light of Sandra, or any number of non-bias related explanations for anti-tenant orientations. There are a number of legitimate criticisms towards empirical analysis in administrative law. For a balanced discussion, see Cary Coglianese, “Empirical Analysis and Administrative Law” [2002] 2002:4 U III L Rev 1111.

[42] For a thorough survey on the application of empirical data to support legal arguments, see Jennifer Robbennolt, Robert M Lawless, & Thomas Ulen, Empirical Methods in Law (New York: Wolters Kluwer Law & Business, 2010).

[43] This point can be clarified with an example. Outside of the courtroom, a judge might have a reasonable apprehension of bias towards people with purple shirts, but we might say that the slate is cleared and the judge’s previous bias ought not to be considered as soon as the judge enters the courtroom and assumes her role. The judge may prudently rid herself of this bias when assuming the role of the judge. In contrast, if we separate the individuals, say, the politician who is also biased towards people with purple shirts then elects a judge because the judge also holds the same bias. It cannot be said that this judge prudently rids themselves of their bias; rather, the judge was chosen because of their biased decision-making.

[44] At this point, one might object to the idea that Sandra’s bias has any relevance to the bias of the LTB members, and instead a hard line must be drawn between Sandra’s bias and the LTB members’ bias. This would take away all the contextualization out of the statistical data on the LTB members (putatively biased) remedies and result in undermining the force of the data. This objection rests on a confusion of Newfoundland Telephone – more specifically, this case should not be read as broadly apply to two separate roles (viz. chair vs. members) with separate functions (viz. policy vs. adjudication). If we understand Sandra and the LTB members to be conceptual separate, then the same “type” of bias (i.e., partiality towards gentrification) is instantiated in separate “tokens” (i.e., first in Sandra in deciding LTB reappointment, but then triggered when the LTB members make their decision). For a precise elaboration on this conceptual distinction, see Charles SS Pierce, “Prolegomeno to an Apology for Pragmaticism” (1906) 16:4 The Monist 492.

[45] Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793 at para 71.

Administrative Law Memo: Sample #1

July 24, 2021 · Leave a comment ·

Intro

This reflection will focus on the observations of a medical disciplinary tribunal, the College of Physicians and Surgeons of Ontario (CPSO), involving a doctor, Dr. Javad Peirovy, accused of sexual misconduct.[1] I explore the moral intuitions relating to administrative law, particularly relating to what courts have referred to as the “appearance of justice.”[2] More specifically, I want to reflect on whether my appearance of “justice being done” has changed after one year in law school.[3] In my sample size of one, I found that my appearance of justice has shifted in virtue of one year of legal education: what I previously believed was a grossly unjust result, I now believe is “just” within the Canadian legal system.[4] While I do not claim to be making any empirical contributions, I would suggest that this could be a fruitful avenue for further empirical research.

Background

I want to risk starting in an unorthodox fashion: lived experience. Prior to law school, I worked as a low-level administrator for a provincial medical organization, and I was quite regularly exposed to medical disciplinary tribunals. Most of the tribunal proceedings were mundane, but sometimes one would catch media attention and fuel office gossip for weeks. The case regarding Dr. Peirovy was one that caught fire. Sexual misconduct is particularly morally repugnant; moreover, it does not take a legal expert to understand that doctors have a higher duty because their patients’ trust them. When I learned that the disciplinary committee found Dr. Peirovy guilty of four patients and only ordered a 6-month suspension, I was outraged. The punishment did not fit the crime, it was unfair, and something is not right about this system. My mind immediately went to corruption – or, perhaps the more accurate term would be the “apprehension of bias.”[5] I believed that the doctors were more favorable to other doctors and this led to an unreasonably lenient sentence. In my eyes, as someone with no knowledge of the law, justice was not being done.

I want to make two brief points of reflection on my experience. First, I believed that justice required that more egregious crimes deserved harsher punishments. The doctor not only abused his position of power, he abused his position of power in order to violate a person’s sexual integrity. My intuition was that such a crime deserved the worst punishment; in other words, I had in mind a theory of punishment based on retributive justice.[6] An “eye for eye,” or at least something just as bad (sometimes referred to as “desert”). Second point: I believed that justice and favoritism were incompatible. If doctors are in charge of judging another doctor, their judgment should not be skewed to favoritism to other doctors. Put differently, justice must be impartial. I will return to these two points later.

The Divisional Court

The CPSO appealed the decision of its own Discipline Committee.[7] While it is based on finer points of law (which I will return to in the next section), the Justices seem to rely on the same moral intuitions. They found the facts “depressing to review,” they found the penalty “clearly unfit,” and it did little to “protect the public and vindicate the integrity of the profession.”[8] The court allowed the appeal and remitted it back to the Discipline Committee.[9] What is also notable about this decision is that two out of the three submissions by the Appellant (viz. CPSO) make some appeal to moral intuitions: first, considering “changing social values;” and, second, the penalty being “grossly disproportionate.”[10] The changing social values seem to suggest that there was a failure to understand just how egregious the actions of the doctors are, especially in light of the moral developments which led to an increased concern for sexual crimes.[11] In other words, if we properly understand how egregious the crimes are, we would also understand that how grossly disproportionate the Discipline Committee’s penalty really was. This, too, appeals to moral intuitions of desert and retributive justice.

Finer Legal Points

I learned the most about administrative law through the decision at the Court of Appeal.[12] Notably, it was a split decision, but they allowed Peirovy’s appeal. Here, I want to reflect on the finer legal points of the majority; while the majority make a number of crucial legal points, I want to focus on their discussion of deference, reasonableness review, and, most importantly, appealing the penalty. I then want to explore Justice Benotto’s dissent. I want to confess from the start that I find Justice Benotto’s dissent quite convincing, especially in light of concerns for the appearance of justice.

To start, the majority emphasizes in their analysis that the Discipline Committee is owed a “high degree of deference.”[13] The reasoning is that the members of the Discipline Committee are within the profession and have a special degree of expertise which non-professionals lack. In other words, doctors are better equipped at assessing doctors and determining what penalties are appropriate for medical misconduct. This certainly addresses my initial reaction that doctors may be more lenient to other doctors; in fact, the opposite is at least possible, that is, doctors may be defensive of the integrity of their profession and seek to penalize those in the profession who undermine this. Indeed, a more charitable understanding would acknowledge the special epistemic “standpoint”[14] doctors may have access to that non-doctors lack. A doctor’s special standpoint provides special knowledge that may allow them to assess cases of misconduct more fairly than non-doctors. To me, this appears fair and just.[15]

As a matter of administrative law, the majority notes that the standard of review for appeals on the Discipline Committee’s decision is “reasonableness.”[16] To be clear, the court at this level is reviewing the Divisional Court’s assessment of the Discipline Committee, so the majority finds that the Divisional Court “not only erred in its understanding of the evidence […] it effectively sought to retry the case in a manner consistent with the proper application of the standard of review.”[17] Simply put, the Divisional Court overreached and went beyond their assignment of merely reviewing for reasonableness. They took matters into their own hands and “subjected the reasons of the Discipline Committee to excessive scrutiny, rejecting the reasonable.”[18]

This leads us to the matter of penalties and the Divisional Court declaring that the penalty imposed by the Discipline Committee “were wrong.”[19] As another point of administrative law, “the Divisional Court had neither the mandate nor the evidentiary basis to intervene, let alone change, the penalty range” and such moves were “effectively an arbitrary exercise.”[20] Again, the point is that the appeal process is supposed to deal with specific issues of procedural fairness and they are not meant to “redo” the trial. The Discipline Committee’s penalties fell within an acceptable range of outcomes based on past cases and should have been unproblematic for the Divisional Court. The Divisional Court found the penalties problematic without legal basis and engaged in palm tree justice.[21]

Justice from Another Angle

I want to now reflect on these points of administrative law in light of Justice Benotto’s dissent. Justice Benotto acknowledges that the penalty was within an acceptable range of penalties given past penalties,[22] but interestingly rejects the majority’s analysis of the standard of review.[23] In short, the Divisional Court was correct to find that the Discipline Committee made findings contrary to their mandate to “eradicate the sexual abuse of patients by members.”[24] The Justice poignantly adds that “reasonableness is not a static concept and ranges are not set in stone. Our collective social conscience is continuously changing.”[25] What is interesting here is the connection to moral intuition and the evolution of social morality. It might be true that, say, fifty years ago, sexual abuse of a patient by a doctor would have triggered the same moral intuitions of repugnance and disgust; however, there is something to be said about latent social attitudes towards sexual abuse.[26]

After only a year of legal education, I have come to realize that brute moral intuitions do not map easily onto the Canadian legal system. Even a superficial understanding of other legal considerations[27] leads me to be sympathetic towards the majority’s analysis of administrative law. Still, I think that the lesson from Justice Benotto is that judicial review should be a bit more sensitive to ethical considerations and social attitudes.[28] This may increase the public’s confidence that justice is being done and combat cynical attitudes towards the law. It is important to emphasize, however, that “the public” is composed of a broad range of views. In order to gain clarity on the question of the appearance of justice being done, it may be fruitful to explore which factors are tied to an individual’s perception of justice being done. I have suggested that legal education may be one such factor, but there are clearly others to investigate – for example, political views, socio-economic backgrounds, or levels of education.[29]

[1] The names, history, and facts (subject to some redactions) are publicly available: https://doctors.cpso.on.ca/DoctorDetails/Javad-Peirovy/0225891-84832 For the CPSO’s decision, see: Ontario (College of Physicians and Surgeons of Ontario) v. Peirovy, 2015 ONCPSD 30.

[2] The appearance of justice, of course, is different from the “appearance of bias.” See, for example, R. v. S. (R.D.), [1997] 3 S.C.R. 484 at para 110.

[3] I am connecting the idea of the appearance of justice to moral intuitions, which is generally how it is empirically approached. See, for example, Peter David Blanck, “The Appearance of Justice Revisited” (1996) 86:3 J Crim L & Criminology 887.

[4] I should again emphasize here that what appears to me as a “just” result is only my intuition. Whether this meets an objective or principled criterion is another question. For example, one might understand the appearance of justice in terms of a public justification: see Frederick Schumann, “The Appearance of Justice: Public Justification in the Legal Relations” (2008) 66:2 UT Fac L Rev 189.

[5] While the “reasonable apprehension of bias” test is generally accepted, the exact application of the standard is debated. See Jula Hughes & Dean Philip Bryden, “Refining the Reasonable Apprehension of Bias Test: Providing Judges Better Tools for Addressing Judicial Disqualification” (2013) 36:1 Dal LJ 171.

[6] For example, see Simon Young, “Kant’s Theory of Punishment in a Canadian Setting” (1997) 22:2 Queen’s LJ 347.

[7] College of Physicians and Surgeons of Ontario v Peirovy, 2017 ONSC 136.

[8] Ibid at para 38.

[9] Ibid at para 40.

[10] Ibid at para 22.

[11] Sandra H Johnson, “Judicial Review of Disciplinary Action for Sexual Misconduct in the Practice of Medicine” (1993) 270:13 JAMA 1596.

[12] College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420.

[13] Ibid at paras 73-76.

[14] See Sandra Harding, “Rethinking Standpoint Epistemology: What is ‘Strong Objectivity?’” (992) 36:3 The Centennial Review 437. See also Andrew L Hyams, “Expert Psychiatric Evidence in Sexual Misconduct Cases before State Medical Boards” (1992) 18:3 Am J L & Med 171.

[15] To be sure, deference in administrative law is not grounded in standpoint theory, but I make the connection to explain why the Discipline Committee might have a better grasp of the facts (not only in firsthand dealings with the accused, witnesses, etc.).

[16] Supra, note 8, at paras 51-53.

[17] Supra, note 8, at para 53.

[18] Supra, note 8, at para 54.

[19] Supra, note 8, at para 81.

[20] Supra, note 8, at para 83.

[21] A possible corollary is that the Appeal Court is not looking to a retributive theory of punishment, rather they are look to exercise judicial restraint and correcting the Divisional Court’s overreach. See Aileen Kavanagh, “Judicial Restraint in the Pursuit of Justice” (2010) 60:1 UTLJ 23.

[22] Supra, note 8, at para 146.

[23] Supra, note 8, at paras 132-133, 143-147.

[24] Supra, note 8, at paras 133, 138-140, 146.

[25] Supra, note 8, at para 132.

[26] For example, the “metoo” movement, the “twin myths,” or “rape-shield” laws. For an excellent survey of the research on social moral progress, see Fiery Cushman, Victor Kumar, & Peter Railton, “Moral learning: Psychological and philosophical perspectives” (2017) 167 Cognition 1.

[27] Concepts like “floodgates,” “formal justice,” “administrability,” “access to justice,” “discretion,” and so forth…

[28] In an informal survey of doctors and medical professionals, most agreed that the Discipline Committee’s penalty was too lenient. For example: [anonymized] Dr. X commented, “[…] he [Dr. Peirovy] is a disgrace to the profession […] I thought they would really make an example out of him given what’s going on in the media.” Professor (public health) Y noted, “[…] the results just show that there’s a cancer in the legal system.”

[29] See generally J Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion (New York: Vintage, 2012).

2L Moot Script Sample: Council of Canadians with Disabilities v British Columbia (Attorney General)

July 24, 2021 · Leave a comment ·

We are seeking to allow the appeal in favor of the Attorney General and reverse the ruling of the BC Court of Appeal. While we agree with the general reasoning of the Appeal’s court as it sets out the legal analysis for the public interest standing and the first Borowski factor, we submit that the Appeal’s court erred in interfering with the discretion of the trial judge. More specifically, the CCD being denied a public interest standing is well within the discretion of the trial judge and the judge’s discretion is defensible on the grounds of the distribution of federal powers. We are particularly worried about judicial overreach and activism that encroaches on the powers of the legislature and creates inefficiencies in the judiciary.

I want to start by looking at the BC Court of Appeal’s analysis of the rationale behind the public interest standing and Borowski. The Appeal’s court correctly notes that courts have used their discretion to generously grant public interest standing while respecting concerns about overburdening courts. The main balancing considerations are between fairness on one hand (i.e., access to justice for the vulnerable and marginalized) and efficiency on the other (i.e., screening out “busybody” litigants). In this case, we are concerned with questions of justiciability, or, in terms of the first Borowski factor, whether there is a “serious justiciable issue.”

The question of justiciability, the Appeal’s court identifies, quoting Lorne Sossin, is “if a subject-matter is held to be suitable for judicial determination, it is said to be justiciable; if a subject-matter is held not to be suitable for judicial determination, it is said to be non-justiciable.” We are not arguing that this matter in itself is not suitable for judicial determination, but we are arguing that this matter in its factual matrix–namely, its use of the public interest standing doctrine–is not suitable for judicial determination.

Our argument relies on a closer look at both Downtown Eastside and Canadian Bar Association. The trial judge’s reliance on Canadian Bar Association (instead of Thompson) is well within the trial judge’s appropriate discretion. We must appreciate that judicial discretion is holistic and reasonable people may disagree with the outcome. The CCD may disagree with the assessment of the fact that, say, third parties may materially advance an identical claim. However, this disagreement fails to appreciate, say, efficiency concerns or the strength of the Charter claim as a whole, which go into the final discretionary deliberations of the trial judge. Considerations of efficiency or being selective about Charter claims is not unreasonable, nor is it arbitrary; rather, it is well within the discretion of the trial judge.

We also agree with Justice Cromwell in Downton Eastside and the Appeal court’s characterization [“that courts should not refuse to determine an issue on the basis that it would be better addressed by the legislative or executive branches of government simply because it arises in a policy context or has policy implications.”] (para 92) Indeed, our position is not that the issue in this case is of a policy nature and therefore ipso facto must go to the legislature; rather, we are arguing that the one may reasonably come to the conclusion that the issues in this case could be more effectively dealt with outside of the courts (viz., in the legislature.)

Of course, the discretion of the trial judge is not unfettered, especially when it comes to constitutional rights. We also agree that the impugned provisions are problematic and need to be addressed. We are not claiming that it is frivolous or that the CCD are busybodies, but rather that considerations of efficiency must be taken seriously as they are also considerations for facilitating access to justice. Where we disagree with the Appeal court is that the CCD and the public interest standing doctrine ought not to be the tools to address the issues of the impugned provisions. This could open the floodgates to social activist groups swarming the courts instead of going through the proper legislative channels for change in a democracy.

In conclusion, we submit that the BC Court of Appeal failed to appreciate the trial judge’s concern for efficiency, and the Appeal court erred in interfering with the trial judge’s reasonable discretion. We appreciate that persons with mental disabilities may find the justice system particularly uncomfortable, but we urge the court to respect the trial judge’s discretion and the considerations for the possibility that the public interest standing doctrine may burden the courts and present further access to justice issues. Subject to any questions, these are my submissions. Thank you, Justices.

Learning Indigenous Law: 2L Reflection

July 24, 2021 · Leave a comment ·

I did not realize how much of my thinking was shaped by the premise of survival and assimilation. When we landed in Canada, my parents gave me an anglicized name so that I would fit in. I started out in English as a Second Language programs, but slowly lost my ability to speak my native tongue – only now am I trying to relearn it. Still, I am one of the lucky ones. My privilege as a settler meant that I had the choice to integrate into this society and try to quietly advance within Canadian socio-economic institutions. I chose an undergraduate degree that was less demanding so that I could juggle three part-time jobs. Incidentally, my choice to study philosophy was deeply formative on my worldview, but now I wonder if it was just one more step in trying to assimilate into Western society.

As a student of the Anglo-American tradition and was taught to think of questions relating to law and morality through the lens of analytic philosophy. While the historical roots of this tradition are rooted in a Judeo-Christian worldview, more “modern” developments have secularized theories of law and divorce themselves from “natural law.” Such “legal positivists,” most notably HLA Hart, have conceptually separated law from morality. Others working within this Anglo-American tradition draw on a politically neutral form of morality to structure their theory of law, which found influence in the works of Ronald Dworkin; others still, like John Finnis, push for more controversial forms of morality being at the centre of thinking about the questions of “what is law.” All of these thinkers subscribe to the analytic method of deriving at truth through deduction, conceptual analysis, and the like. Let us call these “Western” approaches (granted, areas like critical theory and continental philosophy do not follow these methods yet are commonly placed under Western philosophy).

What is striking about Indigenous approaches to law is that law and morality appear to be a continuum. Western approaches understand law as having a distinct function from morality, so there is a conceptual starting point for thinking about law and another starting point for thinking about morality. The Western writers mentioned above dedicate their lives to looking at areas where they overlap and try to make sense of what the relationship between law and morality. The Indigenous approach is a more cohesive enterprise that collapses these sharp divides between law, morality, and metaphysics. It is this all-encompassing picture that I have trouble getting a handle on.

My education in Western philosophy taught me to breakdown the meaning of concepts and then apply them to syllogistic arguments of a single conclusion following from premises. This is not always appropriate to employ for Indigenous approaches to law. Leroy Little Bear notes the holistic and cyclical view of the world through Aboriginal philosophy. Trying to reconcile these views with Eurocentric values of objectivity, linear social organization, and reliance on static collective agreements leads to a fragmentation or “jagged” Aboriginal worldview. Indeed, as seen through the lens of Canadian history and current legality, Indigenous culture is only partially developed and preserved.

I am grateful for this critical eye towards Western approaches, especially to its subtle language and presuppositions. It has pushed me to try to learn about non-Western approaches that are more focused on the community and relational values. Western approaches promote the individual’s power for choice and self-determination, as well as their intrinsic dignity and rationality which must be piously guarded. This approach neglects the interdependence of people for their well-being – social attachments, like family or a community, are crucial to thrive and flourish. Ironically, this point was emphasized by Aristotle, a philosopher who is arguably the most influential Western thinker.

As we dive deeper into the nuances of international law and claims of genocide, I keep reflecting on the underlying tensions between worldviews. There is no doubt that the Western approach is the dominant power and the approach that is employed in the language of the laws, reasoning, and moral justifications. I think about what this approach neglects. The lacuna in Western approaches is interestingly at the forefront in Third World Approaches to International Law.

I want to conclude this reflection with a recent story. Despite my engrossment in being educated in Western approaches, I discovered that I carried one value that was not very Western: filial piety. This showed up in my discussions with my mentors, peers, and intimates around my career decisions. I was challenged by those around me to choose a path in law that I was passionate about, that made me happy, and that promoted my own self-actualization. It was difficult to explain why pragmatic considerations of finance were so important to me – my parents do not have their own retirement plan, that is, I am their retirement plan. I cannot afford to pick a career that I am passionate about at the cost of a small starting salary. Some have diagnosed this as a lack of a backbone, having “tiger” parents, or being to driven by money. Granted, I loathe business law. But after all that my parents have done for me, I can learn to like business law. My prioritization of finances as a symbol of gratitude to my parents is not pathological. Rather, I believe it is honorable and moral – although, self-doubt is still a daily occurrence.

Marvelous Marvin

July 24, 2021 · Leave a comment ·

Boxer Marvelous Marvin Hagler passed away on March 13, 2021. He had his name legally changed to “Marvelous” after announcers did not refer to his nickname. He was marvelous in the ring and was considered one of the “Four Kings” of his generation of boxers, which included Thomas Hearns, Roberto Durán, and Sugar Ray Leonard. I love the sport of boxing, and it’s taught me some transferrable skills that helped me succeed in law school.

What’s particularly notable about Hagler is his discipline in commitment through his training routine. Some would call it extreme. He would isolate himself in cold hotels and run on the beach in army shoes. Boxers take 8-12 week “training camps” before a fight to prepare. Like many law school exams, all the training and preparation leads up to one day.
There are two main elements of a training camp: the conditioning work and the technical work. The conditioning work consists of doing the workout circuits, running many kilometres, and generally getting your body in shape for a fight. For the law student, the analogy can be drawn to doing the weekly readings, attending lectures, and getting your mind around the legal doctrine. It can be boring, time consuming, and it requires consistency and dedication; for this, it’s best to pace yourself, so you don’t burnout your mind or body.

The second element, the technical work, involves sparring with other boxers and replicating fight conditions. For the law student, this often takes the form of practice exams. So much of boxing is about timing and spotting the right punch. Similarly, law students need to sharpen their eyes to the issues and be able to handle the pressure of exam conditions. It’s hard to do your best under pressure. It’s important to master your craft by really identifying and focusing on your weaknesses.

Marvelous Marvin Hagler has one of the highest knockout percentages and was only knocked down once in a total of 67 fights. Despite his impressive record, I will always look up to Hagler for mental strength, discipline, and work ethic. Rest in peace, king.

2L Exam Summary: Jurisprudence

July 24, 2021 · Leave a comment ·

Hart – Concept of Law

Chapter 1

Summary

The first chapter is titled, “Persistent Questions.” The first subsection deals with the issue of legal theories as getting to the nature of law and how most of us have an intuitive idea. Still, there are residual questions: first, the problem of sovereignty (or lack thereof) in international law; second, the problem of borderline cases. This points to a deeper problem than just putting on labels of what counts as law.

He then moves to a section on three recurrent issues. First, the problem of normativity and authority, and he mentions Austin’s imperative theory as a common answer in English jurisprudence. Second, distinguishing sources of normativity: e.g. moral from legal. This is an early hint at Hart’s picture of normativity. Third, how to conceptualize (ontologically) law/rules, but in terms of behavior and its relation to normative practices (e.g. etiquette vs law). Here, again he looks to respond to Austin.

In the third section, he moves to definitions, line drawing, and labels. He argues that definitions do not solve the problem because the issues themselves remain unsolved and undefined (“too different… and too fundamental”).

Analysis

It’s important to note that Hart takes Austin as a target because Austin is arguable the first writer to approach law analytically (and not historically or sociologically). Here are the general features of Austin’s theory:

“Commands” involve an expressed wish that something be done, combined with a willingness and ability to impose “an evil” if that wish is not complied with. Rules are general commands (applying generally to a class), as contrasted with specific or individual commands (“drink wine today” or “John Major must drink wine”). Positive law consists of those commands laid down by a sovereign (or its agents), to be contrasted to other law-givers, like God’s general commands, and the general commands of an employer to an employee. The “sovereign” is defined as a person (or determinate body of persons) who receives habitual obedience from the bulk of the population, but who does not habitually obey any other (earthly) person or institution. Austin thought that all independent political societies, by their nature, have a sovereign. Positive law should also be contrasted with “laws by a close analogy” (which includes positive morality, laws of honor, international law, customary law, and constitutional law) and “laws by remote analogy” (e.g., the laws of physics).
(Austin 1832: Lecture I).

The problem is that there is nothing normative about a habit. Nadler’s example is that eating lunch at noon is a habit but stopping at stop signs is not a habit.

Law is different from the gunman situation because legal official have the right to command us or have authority, but Austin takes away any notion of rights.

Chapter 2

Summary

This chapter begins to interact with Austin’s imperative theory of law, or law as coercive orders. The first subsection is titled “Varieties of Imperatives” and mentions Austin directly, specifically “Province of Jurisprudence Determined.” This work is the target for Hart in this and the next two chapters.

He begins by looking at the “imperative mood,” which is essentially a command, using the example of a gunman coercing a clerk. He notes related linguistic usages of words like “order” and “obedience,” which exercises authority. He is quick to make a distinction that authority does not necessarily mean fear, and it is not about the power to inflict harm; rather, it is about the “respect for authority.”

He then moves to the connection to law “as coercive orders.” Hart here seems to be making sociological observations about how the law functions in society and compares it to Austin’s imperative account. For instance, the parlance of laws being “addressed” to people should not be understood as commands, says Hart; rather, this confuses the question of who the law applies to and who it is revealed to. Hart further notes the “standing” or persistence of the law, where the gunman only gives discrete orders to the clerk (e.g. hand over the notes; not, follow my orders at all times in the future).

Austin may then reply that followers have a “general habit of obedience.” Hart notes that this is vague and imprecise. Again, we see Hart’s empirical observations: our system of law does not have a commander that is “internally supreme and externally independent.” Austin notes that “command comprises the term law,” which is an interesting lexical starting point. He, moreover, appeals to “simplicity” as a criterion. The gunman metaphor of a command backed by punishment. He develops his conception of duty this way; namely, duties are generated by the command and threat of punishment (i.e. laws are “imperatives”). Austin also defines sovereignty in terms of habitual obedience – one is a sovereign so long as they command habitual obedience of subjects.

Analysis

Austin’s theory is often called the “imperative” theory of law. We are introduced to some basic problems which Hart elaborates on in later chapters. What is notable at this pint is the methodology employed by Hart and Austin. They both seek to distill the necessary and essential elements of law. For Hart, the question of “what is law” has a clear ostensible answer of pointing to example. But we are also not looking for the philosophy of language or labels. We are looking for the answer to the nature of law and the normativity of law.

Notably, for Austin, to figure out the law, we just need sociological data about who exclusively commands and also is habitually obeyed.

Chapter 3

Summary

This chapter continues the attacks o Austin’s imperative theory, and it is titled, “The Variety of Laws.” It is interesting to come from the angle of comparative law and legal theory, but presumably Hart wants to make generalized empirical statements that capture similarities across all legal systems. He mentions the role of “custom” immediately in the start of his chapter.

He notes three categories of objections towards Austin: the “content of laws,” the “mode of origins,” and the “range of application.” He proceeds to explain each in turn. The content of laws generally deals with duty-imposing and power-conferring rules. The best example of duty imposing rules is in criminal law, whereby there is a sanction attached to the violation of the criminal statute. Contract law, for example, is not structured this way and instead provide individuals with “facilities for realizing their wishes, by conferring legal powers…” Such power-conferring rules are aimed at deterrence of antisocial behavior, rather it defines conditions and boundaries of legal validity (another example is jurisdictional rules). These are necessary parts of a legal system because they are essential to commerce, wills, and marriages (i.e. legal entitlements and social distribution).

Austin may respond that nullity is a punishment. There is something to this argument because of the realities of psychological disappointment. But merely withholding a good is different from imposing a bad. Hart again appeals to necessary connections to make this point: he says that is it logically possible for criminal law to exist without punishment, but nullity cannot be logically separated from power-conferring rules.

Hart deals with another objection, which he attributes to Kelson: “Power-conferring rules as fragments of laws.” The view attributed to Kelson is that laws are “conditional orders to officials to apply sanctions.” That is, citizens look at the actions of legal officials in a normative way. Unlike Austin expanding the notion of sanction to accommodate power-conferring rules, Kelson restrict it; that is, what looks like a power-conferring rule is actually a part of a larger rule that imposes a duty on legal official to impose a sanction. On Kelson’s view, all of law is a long conditional. But treating officials as the primary audience of legal rules does not match how rules guide conduct.

The final objection that Hart deals with is titled: “Distortion as the price of uniformity.” This seems to be an attack on Holme’s predictive theory. He looks at the “cardinal distinction” that characterizes law as a form of “social control.” Here Hart makes explicit mention of the “bad man” and questions why the law should not care about the “puzzled man” or “ignorant man.” This conception of the law ignores and obscures the law’s co-operative feature (Hart also mentions the law and society as a “game” metaphor).

The next critique of Austin is the range of application. This is a simple argument: an absolute monarch would be above the law, but the rule of law is core in legal systems. A response might be that a monarch can bind themselves, but there is nothing “essentially other-regarding” about the law.

Next, the modes of origin. Hart notes that custom as sources of law cannot be accounted for in Austin’s theory. Customs cannot find their source in a law-creating act by a sovereign.

Analysis

The distinction between duty-imposing and power-conferring is essential to Hart’s view. Shapiro notes two critiques of Austin: not every legal rule imposes and obligation and not every legal rule is a command. For example, power conferring rules, like formation of wills (Shapiro) or creating contracts. If they fail to meet the requirements of contract formation, they do not break a law, the law just does not recognize it as a valid contract.

This may, as Professor Nadler suggests, track onto the idea of negative (liberty from interference by others) and positive (the power and resources to fulfil one’s potential) freedom (Berlin, 1958). Duty-imposing make us respect other people’s rights, but power-conferring tell us about how to acquire rights. The problem is that tax and conscription laws do not protect from interference or respecting rights. One response might be that maybe duty-imposing laws need to be separate between private and public (i.e. contributing to public political life) law, and perhaps power-conferring rules could be divided in the same way. Still, similar to criminal law (public), the function of private law seems primarily to guide conduct and secondarily to offer remedies.

A key move by Hart with power-conferring rules is that “nullity” is not a sanction. A reply to Hart might be that nullity is a sanction insofar as it changes reasons or motivations for actions. For example, a bonus for arriving early to work. But what if I really want that bonus? It’s not a punishment in the sense of taking away negative free, but it takes away positive freedom.

The “predictive” theory of law is often attributed to Holmes and his version of legal realism. Holmes believes that laws are just prophecies of how judges decide a case. They never openly engage in moral reasoning and are largely formalistic (only using legal logic/experience in interpretation). Remember, Hart denied the connection between formalism and positivism. Hart thinks that the predictive theory only looks at the external, descriptive look of rules, like from the perspective of the bad man – put differently, if your theory cannot capture sanctions on the bad man, your theory of law is deficient. This view fails to account for the fact that there is not only a convergence of behavior (from the bad man POV), but also attitudes. Applied to our legal system. Holmes would have to reply that trial courts are predicting what appeals courts would say and the SCC is trying to predict legislation and principles of social good. However, Holmes might reply that he is not concerned with legal rules as Hart is and really only concerned about practical legal problems or law in action. Holmes is looking at methodology and not analytic jurisprudence. They are concerned with what the law is, and not concerned with ought (as Hart portrays).

Hart’s notion of custom (not in the conscious law-creating act of a law-giver) points to the idea that some social rules are ineliminable, primitive, and prior to commanders. International law might be the prime example because there is no established law-giving sovereign. There are accepted customs — like sovereignty of countries — but also salient moral points, like torcher and slavery (hostis humani generis; “enemy of mankind”). For the command theory, every law must be traced back to the wish of the sovereign, but these customary laws do not have to be traced back to them.

Hume’s is-ought problem, according to Hart, assumes only the external point of view, but it fails to understand the internal point of view and its description that those who hold it are normatively bound.

Hart can account for the bad man by saying that the bad man can say he has a legal obligation, even if the obligation is not motivated by the reasons others hold (e.g. Good man: I have to pay my taxes because it will help my community, so I have a legal obligation; bad man: I have to pay my taxes because I will otherwise be punished, so I have a legal obligation.)

Chapter 4

Summary

This chapter attacks Austin’s theory of sovereignty. First, on the point of the habit of obedience and the law’s continuity. If it is just a habit, why would they need a commander? Through a personal relationship — that seems odd? How do we maintain the habit after Rex I dies? The office or right to the new Rex II cannot be explained as a “right” under the habit theory. Hart also talks about the difference between a habit and a rule: deviation from a habit is not criticized; habits are not normative or reasons for action; habits are not “internal” or generalized behavior. Austin’s theory also fails in his account of sovereignty as habits and rules. Hart notes in response the “continuity of law-making power.” In Shapiro’s terms, he quotes, “The King is dead! Long live the King!”

Second, Hart also notes the problem of the “persistence of laws“: laws persist across the change of sovereignty.

Third, the legal limitations on legislation. This is a straightforward argument: an unfettered sovereign has no legal limitations on law-creating power, but the legislature is clearly limited. Constitutions impose legal “disabilities” or limits or the absence of power of the legislature; that is, the rules which empower the legislature are constrained.

Fourth, the sovereignty behind the legally limited legislature is odd. Austin also has trouble explaining how laws can apply to its maker.

Analysis

Another argument might be the empirical fact or phenomenology that people don’t see themselves are motivated by threats and legal officials don’t see themselves are gunman. There are citizens whose motivations for obeying the law is based on morality, while Austin is only concerned with the “bad man.” Austin’s theory also fails because it does not understand “the impersonal nature of legal regulation” (Shapiro) and the rule maker may not even know what law they are creating. It does not personally instruct people with commands — commands are necessarily bilateral. Nadler understands this as generality: e.g. “Don’t steal” instead of “Jennifer don’t take Alexander’s computer.” Shapiro also adds that Austin’s theory of sovereignty cannot capture the intelligibility of “claims of and thoughts about legal authority,” that is, the habit of saying “um” and how habits are unconscious, but laws generate explicit obligations and consciously thinking about them.

Chapter 5

Summary

This begins his theory building, starting with primary and secondary rules. He continues bashing Austin on the point of obligations and goes into this theory of normativity. He titles the section “a fresh start.”

He also establishes primary and secondary rules. He further argues that primary rules alone cannot works because they’re uncertain, static, and inefficient. In response to uncertainty, we can introduce a rule of recognition, which establishes legality. This secondary rule allows us to identify primary rules of obligation. In response to the problem of static quality of the regime of primary rules, we have rules of change. In response to inefficiency, we have rules of adjudication.

The rule of recognition is the “ultimate” rule. It is the “supreme” criteria of legal validity because it defines the legal rules that are not defined by any other legal rule. The rule of recognition is a social fact and sets a groupwide standard. It is self-justifying and does not rely on external morality. Compared to rules of etiquette, legal systems are interconnected and traced back to a common validating source.

Analysis

The rule of recognition, on this account, imposes a duty on officials to apply rules that bear certain characteristics. Again, the characteristics of the rule are what distinguishes it as a legal rule rather than mere custom. In other words, the rule of recognition sets out the criteria of legal validity, and hence picks out the set of legal rules for a particular legal system, because the law of a particular system just is the set of rules that officials of a certain system are under a duty to apply and the rule of recognition sets out the content of this duty. Perhaps the rule of recognition is directed at courts, while the rules of change and adjudication are directed at the official parties who are empowered by these rules. Judges, on this view, are the foundational for recognizing legality. Presumably, the legislature must stay within the bounds of legality (e.g. constitution) when legislating and the executory must also stay within the bounds of legality when enforcing. There might be a bundle of rules: judicial review, stare decisis, applying common law (adjudicate disputes outside of legislation from doctrines and principles from the history of judicial making), rules of interpretation, procedures of law making, etc.

The duty and normativity for the officials is primitive: that is, we are just describing the practice of how they distinguish what is a legal rule and what is not a legal rule, then we understand what they conceive as the rule of recognition.

The internal point of view involves a “reflective critical attitude” towards the patterns for justifying your own behavior and criticizing other deviants of the rule. Social rules can mean broad social support or support by influential people; in a primitive society, it’s about broad social support whereas developed society it is about influential people.

Chapter 6

This chapter looks at legal systems and further elaborates on the rule of recognition and legal validity. A lot of what Hart says is in an earlier paper, “Separation of Laws and Morals.” Here, he makes clear his motivations for positivism: it provides intellectual clarity and allows citizens to be more critical of the law.

He also presents the “separation thesis,” which purports that law does not necessarily (although, it could, according to inclusive legal positivists) include moral content. This thesis basically maintains that determining what the law is, does not necessarily, or conceptually, depend on moral or other evaluative considerations about what it ought to be in the relevant circumstances. Professor Dyzenhaus does not buy the separation thesis. For example, look at the judge who is faced with morally problematic law. What does it mean that legally you ought to but morally you ought not to? This is a commitment of normative monism (Hart is a pluralist).

The rule of recognition is, among other things, a social rule. First, this can mean it exists and has content because it depends on other social facts; or, second, it can mean that it just sets out a standard for the group. This might just describe or observe the way some societies consider something legally valid.

Interestingly, Hart notes that only the officials need to subscribe to the internal point of view: “In an extreme case the internal point of view with its characteristic normative use of legal language (“This is a valid rule”) might be confined to the official world. In this more complex system, only officials might accept and use the system’s criteria of legal validity. The society in which this was so might be deplorably sheep-like; the sheep might end in the slaughterhouse. But there is little reason for thinking that it could not exist or for denying it the title of a legal system.” It’s about the attitudes public officials have towards their own activities: officials believe primary rules (per rule of recognition) impose obligations and justifies coercion.

In presenting these thoughts on obligation, Hart cites three distinct, but related characteristics: 1. “Rules are conceived and spoken of as imposing obligations when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great.” Two further characteristics of obligation are then said to “go naturally together with this primary one.” 2. “The rules supported by this serious social pressure are thought important because they are believed to be necessary to the maintenance of social life or some highly prized feature of it.”; and finally 3. “[I]t is generally recognized that the conduct required by these rules may, while benefitting others, conflict with what the person who owes the duty may wish to do. Hence obligations and duties are thought of as characteristically involving sacrifice or renunciation…” (86-87)

Analysis

Law regarded as a means of influencing and directing social behavior, but surely legal officials need to take into consideration the reasons generated in the participants. From the standpoint of the citizen, Hart is not so different from Austin. The critique, according to Professor Nadler, is that strangers to this society do not have reasons to obey the law. If all these secondary rules are derived by consensus, then widespread disagreement, as Dworkin suggests, would make the rule of recognition problematic (e.g. disagreement in interpretive methodology).

There are some gaps in Hart’s account. Professor Shapiro, for instance, ask if the rule of recognition a duty imposing or power conferring rule? Is it a rule practiced only by judges or by all legal officials? (Professor Nadler thinks it’s power-conferring.) Moreover, in a complex system, different officials might be under duties to apply different rules, so they may apply multiple rules of recognition.

Professor Waluchow, a defender of Hart, seeks a more charitable understanding of the internal and external point of view in understanding where the normative force of secondary rules come from. Professor Shapiro accuses hart of making a “category mistake” when reducing social rules to social practices. To defend Hart, the person describing the existence of a social rule of a particular society can only say there is a social rule if it is indeed the case that there is convergence in beliefs and attitudes. The normative reasons are that the rules are crucial features for protecting social life or some associated value. Again, there is a built-in notion of political and legal obligation.

Nadler: Hart’s account does not give the outsider reasons to obey the authority. Authority must be analyzed with a dissenter and ask if the dissenter must comply anyway (the bad man).

Hart wants to distinguish himself from the gunman situation without collapsing the distinction between law and morality. He uses the internal point of view to patch this obligatory nature to law.

Nadler has two critiques of Hart. First, if law must be acceptable to its citizenry, then it must be justifiable to the citizenry, but this collapses the separation of law and morality. Second, if Hart wants to instead say it is only about legal officials accepting the rule of recognition, then he maintains the separation of law and morality, but returns to Austin’s command theory; that is, we would only need the self-interested legal officials to maintain law.

Could officials come together and make the rule o recognition tyrannical for their benefit?

Penumbra cases are not the judge discovering what the law is but using normative principles of public policy (legislate) – Hart does not think this is moral because it just shows the law ran out so we go to morality then.

Dworkin – Law’s Empire

Chapter 1 – What is law

Dworkin starts with the topic of why the question matters. He then makes a distinction between propositions of law (factual) and the grounds of law (theoretical). He ascribes to his predecessors the “plain fact” view of the grounds of law, like Hart, where laws are limited, like a book on a shelf. Then he uses case examples to show theoretical disagreement: Elmer’s case, snail darter, etc. He uses this to show that positivists cannot account of judicial disagreement.

Dworkin elaborates a critique of Hart and legal positivists that is different from Dworkin’s earlier articles.

Another key distinction of law is between propositions of law (true or false) and grounds of law (make the propositions of law true or false. Theoretical disagreement is about what the grounds of law are, and what makes propositions of law true.

Chapter 2 – Interpretive Concepts

This chapter begins with the semantic sting. The semantic sting happens when people think all we need to argue sensibly with one another about law is the same criteria (e.g. rule of recognition). This pushes them into a dilemma: either they do have the same criteria, or there is no criteria and people are just arguing about different meanings (open texture of language). The second is not true, so does this mean there is a criteria? But what is the shared criteria and how can it account for theoretical disagreement? The sting is that positivist’s picture of legal disagreement is superficial and cannot account for theoretical disagreement.

He then moves onto his methodology. He compares it to literary analysis. Any interpretation of a piece of literature must fit with the “genre” and put it in its “best light.”

People who hold the plain fact view of law – that laws are just empirically verifiable facts – pushes consensus. But if officials always have to agree by consensus, then theoretical disagreement should be impossible. Legal positivists cannot explain theoretical disagreement, which seems to be everywhere. Judges are not disagreeing about whether some proposition of law is true or false, but the nature of what makes law true or false (the grounds of law and theoretical disagreement, or what the rule of recognition is).

Distinguishes interpretative concepts from criterial concepts: criterial concepts are just what conditions something must meet to be categorized (e.g. a book must have pages). Interpretive concepts are not determined by meeting conditions rather it is determined in relation to purpose or value or ends.

Chapter 3 – Jurisprudence Revisited

Dworkin denies a “concept” of law but instead says the right approach is to look for “conceptions” of law. He offers three: conventionalism, legal pragmatism, and law as integrity. He likes the last one.

Basic structure: discern purpose and show it in its best possible light. Discerning purpose is constrained by the form the object takes, so this must fit the object.

Judicial interpretation: making sense of background principles. An interpretation of the background principles must first pass the test of it (e.g. how it was interpreted in the past). Next, show why this interpretation is better than other interpretations (which also passed the test); this is done by showing that one interpretation shows the best moral justification of the law as a whole and the interpretation puts the law in the best light. Contradictory principles can be ranked and reconciled.

2L Exam Summary: Commercial Law

July 24, 2021 · Leave a comment ·

PPSA apply?

Is there a completed security agreement?

Ellingsen v Hallmark Ford Sales: motor vehicle purchase agreement; bankrupt and trustee is appointed; held: no security agreement, so PPSA doesn’t apply

11(2)(a)(i): the debtor has signed a security agreement that contains a description of the collateral

Does the wording suggest a security interest?

356447 British Columbia v CIBC: syndicate loan; security interest created; no magic wording needed

Caisse Populaire v Canada: term deposit agreement for a line of credit, went insolvent, and Crown claimed to be beneficiary; held: yes, parties intended security interest; look at the cumulative terms of the agreement; rationale: function rather than form; dissent: (Deschamps) too expansive notion of security interest

s 2(a): every transaction without regard to its form and without regard to the person who has title to the collateral that in substance creates a security interest including…

What is personal property/collateral?

Saulnier v Royal Bank of Canada: fishing licenses; rationale: (traditional) akin to profit a prendre, (regulatory) little discretion to refuse license makes it stable, (commercial realities) too broad in scope; held: yes, intangible property: s 2(a)

Sugarman v. Duca Community Credit Union: nursing home license; rationale: neither transitory or ephemeral

DaimlerChrysler Services Canada Inc. v. Cameron: motor vehicle lease; true lease or security lease: look at factors in American jurisprudence; held: security lease

Crop & Soil Service Inc. v. Oxford Leaseway Ltd: Ontario and 2(a)(ii) lease; motor vehicle lease with option to purchase, else auction off (open-ended lease)

Is there an exception? 4(1)

Commercial Credit Corp ltd v Harry D Shields: landlord right of distress and arrears of rent; lien given by statute per 4(1)(a); held: distress gives right to hold possession, so no registration required

Case specific:

lease over one year: 2(c)
assignment, leases or consignments that secures an obligation: 2(a)(ii)
- Adelaide Capital Corp v Integrated Transport Finance: test for lease instruments is whether the transaction as a whole in substance creates a security interest
Present after-acquired property: 12(1)
- exceptions: crops and consumer goods: 12(2)
- Holroyd v Marshall: PAAP grants equitable right not legal right
- Tailby v Official Receiver: applies to accounts receivable
- Joseph v Lyons: equitable right can be defeated by bona fide purchaser

Attachment?

Test: S 11

value? 11(2)
right? 11(2)
signed security agreement sufficient to be identified? 11(2)(a) OR possession? 11(2)(b)

i Trade Finance Inc v Bank of Montreal: two innocent creditors; victims of security fraud; attachment required to protect against third parties, else third-party wins

Problems with attachment?

Atlas Industries v Federal Business Development Bank: delivery of security agreement per s 10 within 10 days

Kinetics Technology International Corp. v. Fourth National Bank of Tulsa: sent materials to combine into new product; debtor’s right in collateral per s 11(2); no control/authority, then no attachment

R. v. Canadian Imperial Bank of Commerce: debtor fraudster proceeds forfeited to Crown; CIBC attachment questioned; held: customer gave money voluntarily, not a high threshold to meet that the debtor had rights in the collateral

Case specific:

floating charge: 11(2)
- Credit Suisse Canada v 1133 Yonge Street Holdings: “It does not contemplate, nor require, any further act of crystallization [of a floating charge].”
Business Development Bank of Canada v. D’Eon Fisheries Ltd: security agreement and license with fishing quota; description of collateral include quota; held: unperfected, “unreasonable and unrealistic” to expect parties to infer additional collateral of fish quota
D’Eon Fisheries Ltd. (Re): court of appeal disagrees that the licence and quota are separable and the registration did not capture the quota; quotas are always attached to licences; references fishery regulations instead of commercial practice argument

Perfection?

Test: s 19

Attachment
Possession (s 22) OR registration (s 23)

Problems with possession? [see s 22(1) limits]

RE Darzinskas: manufacturing equipment too big to remove, let debtor use it; chattel mortgage improperly registered, so question of perfection by possession; no constructive possession; holding: no physical possession, so no perfection

Sperry Inc v Canada Imperial Bank of Commerce: competing claim for farm equipment; “reasonable, clear, and actual possession”

Problems with registration? [S 46(4); amendments in 46.1]

Re Lambert: wrong name but right VIN; reasonable person would check both; objective test of reasonableness: likely to materially mislead

GMAC Leaseco Ltd. v. Moncton Motor Home & Sales Inc: non-Ontario, disagrees with Re Lambert; truck serial number was accurate, but wrong name; question of seriously misleading; held: yes; close match may give rise to an obligation to search further

Fairbanx Corp v Royal Bank of Canada: incorrect spelling in name left security interest unperfected; objective test of reasonable person; other party got the spelling right, so not materially misled

Coates v General Motors Acceptance Corp: incorrect VIN; misleading, but reasonable person should discern same model year and manufacturer; test: cause reasonable person to conclude search not revealing same chattel

Case specific:

Unperfected security interests: s 20
- Looses out to insolvency trustees
- Loses to innocent third parties
Registration specifications: 42.1
Bank of Nova Scotia v Clinton’s Flower: error made by registrar does not invalidate registration; 1 million assurance fund: 44(20)
RE Haasen, CIBC v Melnitzer: debtor’s name in search; birth certificate, passport, etc.
Financing statement: 45(1)
- Collateral classification: 46(2.1)
Registration is not notice: 46(5)(a)
Multiple security agreements: 45(4)
- Adelaide Capital Corp v Integrated Transportation Finance Inc: holding revised 45(4)(a)
Keep info current: 48
Deemed knowledge/notice: 69

Priority?

Test: s 30(1)

Between registered: first to register: 30(1)1
- Regardless of order of perfection
Between registered and other perfected: registered 30(1)2
Between other perfect: first to perfect30(1)3
Between unperfected: first to attach 30(1)4

James Talcott Inc v Franklin National Bank of Minneapolis: dump truck lease to acquire $1; first to file rule s 30(1)1

The Robert Simpson Company v Shadlock and Duggan: doctrine of actual notice; irrelevance of knowledge and notice; objective criteria leads to less cost and more certainty

In the matter of Bruce A Smith: race to filing; irrelevance of good faith

PMSI? Test: s 33

Definition: (a) secure payment, (b) allow debtor to acquire rights), (c) lease of more than a year
Inventory? 33(1)
- [a] perfection at the time of possession AND [b] notice with description to other SP before registration and possession
Non-inventory? 33(2)
- Tangible: [a] perfected within 15 days of [debtor’s] possession
- Intangible: [b] perfected within 15 days of attachment

North Platte State Bank v Production Credit: US case; claimed PMSI, but did not fit definition; not for the purpose of acquiring rights

Agricultural Credit Corp of Saskatchewan v Pettyjohn: cattle security agreement, breached term by selling cattle and buying new cattle; PMSI test: lender takes security interest in property; lender gives value for the purpose of debtor acquiring rights to property; value used to acquire those rights

Unisource Canada Inc v Laurentian Bank of Canada: sale leaseback printing press; PMSI because debt financing enabled them to acquire further rights that debtor previously did not have

Clark Equipment of Canada v Bank of Montreal: mixes PMSI and non-PMSI; security interest can cover more than PMSI collateral

Brodie Hotel Supply Inc v US: USA restaurant equipment; possession of collateral as a debtor

Case specific:

PMSI attaches at the same time? Equity rule of first in time and first in right applies: s 72
Conflicting PMSI: s 33(3)
- Vendor has priority over lender

Priority exceptions?

Fixture?

Test: s 34(1)
- (a) security interest attaches before goods become fixtures, then security interest has priority
- (b) security attaches after, then priority over anybody who subsequently acquire interest but not those who already had interest (unless the previous interest holder agrees in writing to hand it over)
- Exception: s 34(2) subsequent purchase or advance without knowledge of security interest or fixture notice is registered in land registry office
  - rationale: SP didn’t have any expectation of goods, so removal by other parties still gives SP what they bargained for

Cornier v Federal Business Bank: land owner with installations for business; severable even if part of land; used caselaw for what counts as fixtures; context sensitive

85987 Ontario v Starmark: spray paint booth sold under conditional sales contract; landlord right to distress does not apply to fixtures

Accession?

Test: s 35
- Same as fixture

Industrial Acceptance Corp v Firestone Tire: truck tires; utility of the principal chattel would be destroyed

Co-mingled?

Test: s 37
- perfected security interest
- goods a part product
- manufactured such that identity is lost
- remedy: each security interest pro rata

Subordination?

S 38

CIF Furniture Limited (RE): inter-creditor agreement; circularity problem; complete vs partial subordination; Laskin argues complete subordination would give windfall of leapfrogging, so partial subordination is more equitable

Chiips Inc v Skyview Hotel: conditional sales to refurbish hotel floors; “PMSI shall rank in priority” and parties intended subordination to subsequent PMSI; implicit subordination is possible; dissent: purpose and intention was just to allow PMSI without breach; wording should have been clearer

Engel Canada Inc v TCE Capital: adoption of Chiips into Ontario; moulding machines, but didn’t register PMSI in timeframe; subordination can still occur without explicit mention of “rank” or “priority”; look at security agreement then other suggestions of intention

Kubota Canada v Case Credit: PMSI registration lapse but fixed; no wording suggests implicit subordination

Ordinary course of business?

Test: s 28
- Buyer vs purchaser: buyers do not have s 28 exception
  - Purchaser must not know of security agreement: s 28(6)
  - Also “goods” not “inventory”
- Security interest must be “given by seller”
- Ordinary course of business: advertising, nature and significance of transaction, not resembling a liquidation of assets, reasons for transaction
Priority of tangible chattel paper: 28(3)
- Test: 28(4)
- Motor vehicle: 28(5)

Camco Inc v Olson Realty: kitchen appliances sold in condos and conditional sales agreement; yes ordinary course, they regularaly sold condos with kits; may not be limited to inventory and may apply to some cases of equipment, but not one-off sales

Splittlehouse v Northshore Marine: 90% of purchase price paid for boat but conditional sales contract that stipulated title would not pass until paid in full; moot: s 28(1.1) irrelevant whether title passes

Tanbro Fabrics Corp v Deering Milliken: US case; possession was with SP; court said debtor sometimes sold goods, but infrequent is still ordinary course

Re Perimeter Transportation: leased 3 buses; trustee argued ordinary course extinguished security interest; lease comes first, and leasers should not have to worry about prior security interests

Agricultural commodity Corp v Schaus feedlots: security interest in crop sold; ordinary course determined by conditions of the sale

Other Rights: proceeds, enforcement, conflict of law

Proceeds and tracing?

S 25(1): perfection extends to proceeds unless otherwise specified
- Creditor can follow or trace collateral
- Same registration date: s 30
- Non-registration perfection: 10 days and s 25(4)

Flintoft v Royal Bank of Canada: tracing proceeds is not contingent on agreement; includes second generation proceeds overlapping with after acquired property

Agricultural Credit Corp of Saskatchewan v Pettyjohn: old cattle sold to buy new; cannot trace back to debt and re-create debt, but possible fictional subrogation; tracing concerned with fairness between creditors; 50% PMSI; close and substantial connection

Bank of Nova Scotia v. IPS Invoice Payment System Corporations: factoring agreement; security interest recovery limited to amount of debt; rationale: give each party what they bargain for, so no windfalls

LSUC v TD Bank: misappropriate funds and mixed in trust account; no Grey lowest intermediate balance rule because no trust relationship; pro rata distribution of funds

Graphicshoppe Ltd. (Re): deducted funds from employee held in trust; mixed funds and account fell negative; not trust funds under s 67 of insolvency act; no tracing allowed, but not bound by lowest intermediate balance rule

Boughner v. Greyhawk Equity Partners: defrauded investment scheme; tracing; considered last in, first out rule; applied lowest intermediate balance rule, but said it’s not applicable in some cases

Flexi-coil v Kindersley District Credit Union: farm equipment dealer and drew on cheques; no fiduciary but can trace anyway; bank-customer relationship is debtor-creditor; equity: no tracing if bona fide purchaser for value

Massey-Ferguson Industries v. Bank of Montreal: s 30(5); registration extends to proceeds

Enforcement?

Part V: s 57.1 onward
- Remedies can be cumulative: s 58
- Remedies can be waived or contractually negotiated: s 59(1)

Waldron v Royal Bank: limits on enforcement: notice before enforcement; reasonable time; Lister v Dunlop principle: seizure under security is entitled to receive notice as is reasonable in the circumstances; notice per 63(4)-(7)

R v Doucette: seizure of collateral by force; illegal means not permitted

Angelkovski v Trans-Canada Foods: voluntary foreclosure satisfies debt and waives right to deficiency; right to keep collateral for cancellation of debt: s 65(2); if collateral is worth more, see 65% rule in 65(1); held: foreclosure requires notice

Copp v Medi-dent services: two dentists; disposal of collateral; reasonableness: appraisal and commercial price

Bank of Montreal v Featherstone: deficiency claim: 64(3); difference between debt owing and net amount received

Bank of Montreal v Maple City Ford Sales: Ontario and trucks; enforcement without notice and consenting to receiver is waiver of notice; reasonable notice overcome by bad faith, depreciating assets, or no difference since debtor has no means

Case Specific:

Redemption: 66(1)
- Prior to disposition or foreclosure
- Tendering all obligations and reasonable expenses to SP
- Satisfaction of security obligation
Reinstatement: 66(2)
- Consumer goods can reinstate the security agreement by paying arrears (monies owed)
Receiver: 60(1)
- persons put in place to control and manage the collateral
- Power to receive income and operate the business
- Ostrander v Niagara Helicopters: unlike court appointed, privately appointed receivers are not fiduciaries
- Standard Trust co v Turner Crossing Inc: statutory right to receiver; private receiver should be specified in security agreement

Choice of law?

S 5-8
- 7(1): Lex situs: apply the law where the collateral is at the time of attachment
  - Exception: mobile goods rule uses debtor location
- Putative proper law: if no attachment, use the law anyway
- 6(1) Destination of goods rule: intended for another location
5(2) contemplates perfection before relocation
- Continuation of perfection: registration before goods brought in, 60 after goods brought in, 15 days upon notice, or before expiry (whichever of these three is earliest)
- Rationale: allocation of risk

GMAC Commercial Credit Corp Canada v TCT Logistics Inc: registered in Alberta but not Ontario; OPPSA does not apply, still use OPPSA conflict rule: yes; s 7(1) applies for choice of law and not confined to Ontario security interest

Cardel Leasing v Maxmenko: Ontario and BC law conflict; parties choice law in contract is not aboluste: cannot avoid laws most closely related to the transaction; contra proferentum rule of contract interpretation

Re Claude A Bedard: functional equivalent of registration will be considered perfected and granted equivalent to PPSA protection; deemed perfection s 8(2)

Miscellaneous

Acceleration provisions: s 16

Care of collateral: s 17

Request for info: s 18

Short term financings for temporary (day 10) perfection: s 24

Philo-so-fun

Philosophy can be fun. Just kidding.

Author: chaowdur

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Ethics of Immigration: Commentary #1

Administrative Law Memo: Sample #3

Administrative Law Memo: Sample #2

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2L Moot Script Sample: Council of Canadians with Disabilities v British Columbia (Attorney General)

Marvelous Marvin

2L Exam Summary: Jurisprudence

2L Exam Summary: Commercial Law