Administrative Law Markus Dubber Baker v Canada 1995

Administrative Law Markus Dubber

Baker v. Canada ((1995) 101 F. T. R. 110 (FCTD) [06/95] Federal Court Trial Division • Mavis Baker, “worked illegally” ‘ 81 -’ 92, 4 kids, ‘ 92: paranoid schizophrenic, 1 yr mental health centre; 6 -yr-o twins w/ father; 10 - and 3 -yo foster care • ‘ 93: out-patient; landing application H&C; ‘ 94: denied by letter, w/o reasons; case history notes produced upon request

PC is unemployed - on Welfare. No income shown - no assets. Has four Cdn. -born children- four other children in Jamaica- HAS A TOTAL OF EIGHT CHILDREN Says only two children are in her "direct custody". (No info on who has ghe [sic] other two). There is nothing for her in Jamaica - hasn't been there in a long time - no longer close to her children there - no jobs there - she has no skills other than as a domestic - children would suffer - can't take them with her and can't leave them with anyone here. Says has suffered from a mental disorder since '81 - is now an outpatient and is improving. If sent back will have a relapse. Letter from Children's Aid - they say PC has been diagnosed as a paranoid schizophrenic. - children would suf-fer if returned Letter of Aug. '93 from psychiatrist from Ont. Govm't. Says PC had post-partum psychosis and had a brief epi-sode of psychosis in Jam. when was 25 yrs. old. Is now an out-patient and is doing relatively well - deportation would be an extremely stressful experience. Lawyer says PS [sic] is sole caregiver and single parent of two Cdn born children. Pc's mental condition would suffer a setback if she is deported etc. This case is a catastrophy [sic]. It is also an indictment of our "system" that the client came as a visitor in Aug. '81, was not ordered deported until Dec. '92 and in APRIL '94 IS STILL HERE! The PC is a paranoid schizophrenic and on welfare. She has no qualifications other than as a domestic. She has FOUR CHILDREN IN JAMAICA AND ANOTHER FOUR BORN HERE. She will, of course, be a tremen-dous strain on our social welfare systems for (probably) the rest of her life. There are no H&C factors other than her FOUR CANADIAN-BORN CHILDREN. Do we let her stay because of that? I am of the opinion that Can-ada can no longer afford this kind of generosity. However, because of the circumstances involved, there is a po-tential for adverse publicity. I recommend refusal but you may wish to clear this with someone at Region. There is also a potential for violence - see charge of" assault with a weapon".

• Process: No reasons, no problem “[W]hen the Court of Appeal combined the lack of a requirement for reasons with a heavy burden on the applicant, it meant, in practical terms, that in the absence of evidence to the contrary, it was to be presumed that an H & C decision was made properly. … Accordingly, I will not require Officer Caden to file an affidavit, and I will not send the matter back for a redetermination only because there is no affidavit. ” • “Substance”: plenty of evidence, no bias • “conclusion” ("She will, of course, be a tremendous strain on our social welfare systems for (probably) the rest of her life”) not supported by evidence: sure it is “I think it reasonable to conclude that the experts do not expect the applicant to work. Indeed, the C. A. S. does not even forecast that she will be able to care for all four children. In my view, when Dr. Collins said that the applicant will be a productive member of society, he meant that she will be able to care for at least some, and hopefully, all of her children. Had he anticipated her return to the workplace, I am convinced that he would have said something about it in clear terms. ” • bias: "catastrophe”, "indictment of our system” • [H]is views are not relevant, but even if they were, I am not satisfied that the language he used displayed a bias against the applicant. Rather, it displayed an anger and frustration with Canadian immigration law enforcement. • No blatant error is to be found in the officer's notes. His expressions of personal opinion were unfortunate, but they do not taint the decision-maker [Caden]. • Independence of trial court? Informal style, deference, presumption

Federal Court of Appeal (11/96) • Certified question: – Given that the Immigration Act does not expressly incorporate the language of Canada's international obligations with respect to the International Convention on the Rights of the Child, must federal immigration authorities treat the best interests of the Canadian child as a primary consideration in assessing an applicant under s. 114(2) of the Immigration Act? • Nothing re: process, bias – Not certified; not raised below • Formal, procedure, limited role, narrow

Immigration Act, R. S. C. , 1985, c. I-2 82. 1 (1) An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court — Trial Division. 83. (1) A judgment of the Federal Court — Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court — Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question. 114. (2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations. Immigration Regulations, 1978, SOR/78 -172, as amemded [sic] by SOR/93 -44 2. 1 The Minister is hereby authorized to exempt any person from any regulation made under subsection 114(1) of the Act or otherwise facilitate the admission to Canada of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.

Sup Ct (7/99) • L'Heureux-Dubé – S. Ct. Style: expansive, discursive, “grand” (Llewellyn), substance • All admin, all the time – “Because…the issues raised can be resolved under the principles of administrative law and statutory interpretation, I find it unnecessary to consider the various Charter issues raised by the appellant” • Formulation of certified question no problem – “The wording of s. 83(1) suggests [that] if a question of general importance has been certified, this … does not confine the Court of Appeal or this Court to answering the stated question or issues directly related to it. ” • Rule of law? Procedure vs. substance? Deference (to lower ct. /to admin agency)? • Statutory interpretation? • The scheme – “Statute” authorizes Governor in Council to authorize minister to exempt on H&C (C/H) grounds who delegates to immigration officer who has manual with guidelines • What would a reasonable person do?

(Common law) procedural fairness • Applies to H&C: – administrative decision & affects "the rights, privileges or interests of an individual" (Nicholson? ) • Flexible & variable • Bottom line: – [T]he purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decisionmaker. (22)

Participatory rights--What’s owed? The Baker Factors… 1. 2. nature of the decision being made and the process followed in making it – The more (judicial), the more (rights) nature of the statutory scheme and the "terms of the statute pursuant to which the body operates” – 3. 4. 5. 6. E. g. , no appeal the importance of the decision to the individual or individuals affected legitimate expectations of the person challenging the decision – Can’t break promises re: process, or re: outcome w/o due process agency’s choice of procedures list not exhaustive etc. …

Which Way Do They Cut? The Factors applied 1. 2. 3. 4. 5. 6. nature of the decision being made and the process followed in making it – The more (judicial), the merrier • Tons of discretion – Canada nature of the statutory scheme and the "terms of the statute pursuant to which the body operates” – E. g. , no appeal • “Exception to the general principles of Canadian immigration law” -- Canada • No appeal, exc. with leave… -- Baker the importance of the decision to the individual or individuals affected – Baker legitimate expectations of the person challenging the decision – Can’t break promises re: process, or re: outcome w/o due process • Convention on the Rights of the Child not like administrative promises -- Canada agency’s choice of procedures – Canada (obviously…) list not exhaustive … And how about Mr. Nicholson?

Conclusion • “Thus, it can be seen that although some of the factors suggest stricter requirements under the duty of fairness, others suggest more relaxed requirements further from the judicial model. ” – Indeed! • more than “minimal”: “the circumstances require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered. ” – Still mini-NJ (Nicholson)?

In particular • No oral hearing/notice required—no problem – Written submissions enough • Reasons required—when/where? – “where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances” – Why? • Unnecessary, not required, delay, cost… • BUT: useful (transparency…), better decisionmaking, “the process of writing reasons” – Still: no problem—Lorenz’s notes = “reasons”

Proc Fair II: Bias • free from a reasonable apprehension of bias, by an impartial decision-maker – Lorenz, too (not just Caden): central role & notes = reasons • Test: – the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . [T]hat test is ‘what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly. ’ • Reasonable persons’ reasonable apprehension of unreasonableness • Flexible, based on context (important, sensitive immigration decisions) – Here: immigration decisions demand sensitivity and understanding by those making them. They require a recognition of diversity, an understanding of others, and an openness to difference. • Reasonable expectation?

Different Bakers • Trial vs. appeal vs. sup ct (vs. admin opinion, see Batic) – Tendentious facts in app cts – Different approaches • Issues • Viewpoints – Attitudes (Willis): toward admin agencies/legislature » Proximity to agency (repeat players) • Rule of law/rule of (wo)men – Different styles • Formal/informal, expansive/narrow, discursive/focused (dicta!), grand/not so grand, creative/orderly (Llewellyn) • Status

Batic v. CICB [1983] O. J. No. 1910, Ontario Supreme Court - High Court of Justice, Divisional Court • Limited jurisdiction; error of law “plainly demonstrated” – 23. [A] decision of the Board is final except that an appeal lies to the Divisional Court from any decision of the Board on any question of law. • From the action it took in denying the application, it is apparent that certain evidence was accepted and other evidence rejected and it is quite clear that there was evidence upon which the Board could reach the conclusion it obviously did. Without stating that conclusion specifically, the Board invoked s-ss. 17(1) and 17(2) of its constituent statute and denied the application. – 17(1) In determining whether to make an order for compensation and the amount thereof, the Board shall have regard to all relevant circumstances, including any behaviour of the victim that may have directly or indirectly contributed to his or her injury or death. (2) The Board may, in its discretion, refuse to make an order for compensation or order a reduced amount of compensation where it is satisfied that the applicant has refused reasonable co-operation with, or failed to report promptly the offence to, a law enforcement agency.

It cannot be stated too frequently that it is desirable that a tribunal of this nature whose findings affect many individuals in unfortunate circumstances should state for the benefit of those individuals and of others who may in the future be affected, the grounds upon which it reaches its conclusion with some precision. It is desirable also that the Board indicate with precision the way in which it relates those parts of the statute on which it relies to its findings of fact. The Board's failure to do so here is regrettable. We are, however, limited in the action we may take and we are unable to find a specific error in law in what the Board has done in this instance. Evidence existed which the Board has obviously accepted which justifies the action taken and that evidence was quite sufficient to support the application of s-ss. 17(1) and 17(2). The application must accordingly be denied, but we are all of the opinion that because of the lack of clarity in the Board's decision, it should compensate the appellant for its costs of this application. The appeal will therefore be dismissed, but the costs of the appellant will be paid by the respondent.

Batic round-up • Rule of law? – Specificity • “less than precise” – Publicity • Opinion • Reasoning – Justification? • Audience? – Public – Claimant – Itself: recordkeeping – Respect • Ct. vs. Administrative agency – Appellate review vs. friendly suggestion • Ct. vs. Legislature • Ad agency vs. claimant • Duty of Fairness – Giving reasons (in form) vs. giving reasons (in substance) • Who needs reasons? Who needs rules? Facts, facts • Fuller: form vs. substance/managerial direction vs. rule of law • What is it good for? • Burden of proof – Truth/bench trial – Jury/experts • Victim Compensation (Substance) – Intoxication • Significance? – 72(1): contribution? To injury vs. to criminal injury – 72(2): co-operation (failure to report) • Relevance? – Character/Innocence/”Victi m”/Pretender – “costs” as punishment • No offender – Claimant vs. police