10.14.05
Admin Law Blues
CHILDREN’S LAWYER FOR ONTARIO v. GOODIS
I have never understood administrative law. This case from last April reminds me why.
First off, this whole business of differing standards of review eludes me. To my mind, the administrative tribunal either got it right or got it wrong. The fact that the decision may be guilty with an explanation does not cut it. Who came up with the idea that a tribunal’s decision can be incorrect, but reasonable nonetheless?
It doesn’t stop there. We also have the “patently unreasonable� standard of review. On this model, the appellate tribunal can disagree with the result, and also find it unreasonable, but conclude that there may be at least some people stupid enough to be fooled by it. On that basis, the decision should stand.
Against this backdrop, we find in Children’s Lawyer that someone who had been represented by the Children’s Lawyer in her tender years thought she would like to see her legal file. She requested a copy. This simple request by a client for her file unleashed a maelstrom of argument among provincial government agencies, including amicus curiae submissions, tribunal dispositions, dispositions varied on reconsideration, tribunal standing submissions on first level of review, several fine points of statutory interpretation, appeals on standing and, finally, nice philosophizing on whether tribunal members should be able to hire counsel to follow their own decisions right up the appellate ladder, explaining to each court along the way why their specialized expert judgment is correct, or at least reasonably incorrect, or, in the final resort, unpatently unreasonably incorrect.
In 1989, apparently, the Supreme Court of Canada declared itself in favour of this procedure in a case called Paccar, but with a curious qualification. The one thing – repeat, the one thing – that the tribunal cannot do on a judicial review of its own decision is suggest that its decision was correct.
I am not making this up.
Can you imagine what the submissions of tribunal counsel might be like? “My client does not take lightly its approach to being wrong. Its errors rest on stout pillars of reason, and this is as it should be. Its decision may be travesty, but it is a most plausible travesty, justices, in every way.�
In the Children’s Lawyer case, we are all grateful to learn that the requester/client bailed out after her initial request and had nothing to do with the matter after that.
Good choice. Litigants would only have impeded this litigation.
We are even more grateful that our Court of Appeal felt that the whole thing may have been argued on the wrong basis and might never have required any resort at all to the Freedom of Information and Protection of Privacy Act, being the whole basis on which matters proceeded.
I pause here to beseech the summary dismissal of whoever at Queen’s Park generates such oxymoronic names for legislation. What next? An Act Respecting the Drowning of Chickens and Rescue of Poultry? This person’s malignity peaked in naming the Tenant Protection Act. He or she should move on to fresher fields.
To return, Justice Goudge commented right up front,
“The Children’s Lawyer, whose office operates as a branch of the Ministry of the Attorney General, treated this as a request for information under FIPPA rather than as a request from a client for her file. However reasonable it might be to analyze the interests at stake in this framework, this was not raised as an issue before us, and I will say nothing more about it.”
Now this observation is truly patent. When I pick up my shirts at the cleaners, I don’t want to hear any noise about who owns them. Even less should I need permission of a government functionary under the Pressed Shirts and Rumpled Chemises Act.
But then again, I do not understand administrative law.