Chapter 2 ADMINISTRATIVE LAW AND STATUTORY DRAFTING

First it is essential to understand some fundamental principles of legislative interpretation and drafting. Legal requirements or powers can be imposed or granted in a number of different ways, including: by statutes passed by Parliament or the Legislature ("statutory" or "legislative" requirements); by regulations passed under the authority of statute by the Lieutenant Governor in Council, [(103) -- 103. The Lieutenant Governor in Council is essentially the provincial cabinet with automatic approval of the Lieutenant Governor; the Governor in Council is essentially the federal cabinet with the automatic approval of the Governor General.] Governor in Council or some other government body ("regulatory" requirements); and by orders or permits issued by government officials in an ad hoc manner under the authority of either statute or regulation ("administrative" requirements).

Administrative law constrains government action by setting limits on public officials in the exercise of their statutory and regulatory powers. The difference is that legislators may override the rules of administrative law if they do so expressly by statute. No statute can exclude the application of the Constitution. The rules of statutory interpretation are not laws per se; but they can have an important effect on how laws are applied in situations where the meaning of the law is not clear. Judges use these essentially grammatical rules to assist them in determining what is the intended meaning of a statute.

Statutory Drafting

As discussed above, the content of statutes will depend on a number of factors including:

• Policy decisions about which subjects should be covered by statutes and which by regulations. Governments need to consider a number of competing factors that influence the content of statutes. Relevant factors include the need for certainty or flexibility, government's commitment to democratic process and principles of environmental protection, and the time it has available to debate detailed legislation.
• Rules of statutory interpretation governing the necessary language in statutes required to authorize government action. The power of government bodies to pass regulations or of government administrators to make orders or decisions affecting individuals must be based in a statute. Courts have developed a number of rules of statutory interpretation which they apply in deciding whether a particular regulation or administrative action is permitted by legislation.
• Rules of administrative law governing how decisions by government administrators can be made. When statutes give government administrators certain powers, these powers must be exercised in a way which is fair and consistent with the purposes of the legislation. Administrative law deals with how decisions are to be made: rules of procedural fairness and appropriate exercise of discretion. Persons opposed to a particular administrative action can ask the Courts to block the action if these rules have been breached. Where statutes provide a specific process for government administrators to follow in decision making, these decisions will be less susceptible to successful attack in the Courts as long as the process is followed.

Policy Issues

The following are some of the central policy issues which influence our recommendations about the content of enabling statutes for economic instruments:

Commitment. Enshrining a principle in legislation rather than leaving it to regulation or administrative action shows a government's commitment to that principle. Foremost in legislation aimed at environmental protection must be a commitment to positive environmental purposes and to promoting sustainability. For instance, to shield program administrators from pressure to approve monitoring systems which are open to abuse, drafters of tradeable permit legislation could specify that monitoring systems must provide a continuous accurate record of emissions that is not prone to tampering.

Flexibility. Legal requirements in regulations can be amended more quickly than those in statutes. Therefore, requirements that will need to change from time to time should be put in regulation. For instance, the acceptability of specific emissions monitoring systems in a discharge fee system may vary with rapidly changing technology. This is an appropriate subject for regulations.

Certainty. Including a particular requirement in legislation rather than regulation will give the persons regulated a greater security that the provision will not be changed. For instance, certain rules as to how tradeable permits will be dealt with may be enshrined in legislation to give permittees the confidence necessary to engage in trading.

Democratic Process and Accountability. Adopting a dramatically new way of governing emissions, such as a tradeable emissions permit system, may be viewed as undemocratic if the system is based on a cursory statutory reference that does not allow the debate of important aspects in Parliament or the Legislature. Detailed legislation allows for fuller debate in a legislature accountable to the people. Moreover, detailed legislation is often less open to political attacks based on unfounded fears.

Control. Legislatures or Parliament may want to enact detailed legislation in order to exercise control over the bodies it empowers to pass regulations. This is especially true where a body independent of government is given regulation making authority. For instance, if the province delegated to the Greater Vancouver Regional District the authority to set up a tradeable permit system for NOx and VOC it is likely the legislature would want to have a great deal of control over the details of the system.

Many of the recommendations in Chapters 3 to 5 about the content of enabling legislation are influenced by these factors. The recommendations do not necessarily follow from rigid legal analysis but instead from weighing competing policy concerns.

Presumptions of Statutory Interpretation

One of the most important arguments in favour of detailed legislation over general legislation is to ensure that the legislation gives a legal mandate to implement all the necessary aspects of an economic instruments system. Courts will only uphold regulations where they find that there is a statutory mandate to pass them. For instance, the Manitoba Environment Act allows "marketing of pollution allowances." [(104) -- 104. C.C.S.M.E-12, s. 45.] This probably would not provide the necessary authority for a system where permits or allowances are initially allocated on a historic emissions basis. While Courts in Canada have been relatively liberal in broadly interpreting statutory mandates to pass regulations, in some circumstances Courts may require very specific statutory mandates in order to uphold certain types of regulations. [(105) -- 105. See CKOY Ltd. v. The Queen, [1979] 1 S.C.R. 2 and John Keyes, Executive Legislation: Delegated Law Making by the Executive Branch (Toronto: Butterworths, 1992) at 181-187.] In particular, there are a number of "presumptions of statutory interpretation" which require very specific statutory authority before certain actions are taken:

Presumption Against Delegation. There is a general presumption that when Parliament delegates to the Governor in Council power to pass regulations, the Governor in Council cannot subdelegate its authority to a third party. For instance, if the power to pass administrative penalty regulations were delegated to cabinet, cabinet would need specific statutory authority to pass regulations that created a tribunal to adjudicate penalties. [(106) -- 106. See Steve Dart Co. (1974), 46 D.L.R. (3d) 745 (F.C.T.D.).] The more the authority delegated involves discretion the more likely it cannot be delegated without statutory authority. [(107) -- 107. Dene Nation v. The Queen, [1984] 2 F.C. 942 (T.D.), and Keyes, above at footnote 106 at 253-to 267.]

Presumption Against Transformation of Power. This presumption is closely related to the rule against delegation. Courts will generally presume that where a power to make regulations is delegated, the delegate must exercise that power through regulation-making rather than ad hoc administrative decisions. For instance, if the Greater Vancouver Regional District were given the power to make regulations establishing discharge fees it would probably not be able to pass a regulation giving administrators the power to set per unit fees on an ad hoc basis. [(108) -- 108. See Brant Dairy Company v. Milk Commission of Ontario, [1973] S.C.R. 720 for an analogous situation of allotment of marketing board quotas for milk.]

Presumption Against Imposition of Liability. Regulations cannot impose liability, either criminal liability for an offence or liability to pay an emission fee tax or an administrative penalty, unless there is clear statutory authority to do so. [(109) -- 109. See Elmer Driedger, Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983) at 318 and Keyes, above at footnote 105 at 166.]

Presumption Against Absolute Liability. Specific statutory authority may be required to pass regulations which create absolute liability offences. Absolute liability offences are those in which an accused will be found guilty whether or not they intended the offence to occur or were negligent in allowing it to occur. [(110) -- 110. See R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299; See also discussion accompanying footnote 52 to 54 in .] This is relevant in the context of administrative penalties which may be imposed on an absolute liability basis.

Limiting Access to Courts. Specific statutory authority is needed to limit the public's ability to have administrative decisions reviewed by the Courts. [(111) -- 111. See Re Kendrick and Ontario (Milk Control Board), [1935] O.R. 308 (C.A.). ]

Presumption Against Discrimination. Some cases state that there must be statutory authority to apply different legal obligations to different classes of people (for example, excluding emitters under a certain size from a system of tradeable permits) or different locales (for example, applying a tradeable permit system to the lower Fraser Valley alone). [(112) -- 112. See Keyes above at footnote 106 at 227-229; see also R. v. D'Entremont (1987), 34 C.R.R. 255 (N.S. Co. Ct.).] The "presumption against discrimination" will be especially strong where it has an impact on someone's ability to carry on business. [(113) -- 113. Keyes, above at footnote 105.]

Interference With Existing Rights. There is also some authority that regulations may not interfere with rights created by the statute under which the regulations were passed or by the regulations themselves. For instance, in one case a new limitation on the transfer of milk production quotas was not allowed even though the quotas themselves had been established by regulations. [(114) -- 114. Ackerman v. Nova Scotia (1988), 47 D.L.R. (4th) 681 (N.S.S.C.T.D); British Columbia courts have declined to follow the reasoning in Ackerman: see Sanders v. Milk Board (1991), 53 B.C.L.R. (2d.) 167 (B.C.C.A.). In our opinion Ackerman was wrongly decided (see at footnote 415 to 420).]

These policy factors and rules of statutory interpretation will influence how legislation is drafted. In addition, rules of administrative law will affect how legislation is implemented by government officials and regulation makers. The remainder of this chapter discusses these rules and various statutory provisions which can help to ensure that legislation is implemented in a fair and effective manner.

Administrative Law

The following review of the principles of administrative law is only a brief summary of an extensive body of law. [(115) -- 115. Further discussion of administrative law can be found in Sara Blake, Administrative Law in Canada. (Toronto: Butterworths, 1992); David Jones & Anne DeVillar, Principles of Administrative Law. (Toronto: Carswell, 1985); Robert F. Reid & David Hillel, Administrative Law and Practice, 2 ed. (Toronto: Butterworths, 1978); Sir William Wade, Administrative Law 6th ed. (Oxford: Clarendon Press, 1988).] Administrative law is extremely complex and cases depend largely on the individual circumstances. This is only a thumbnail sketch aimed at raising awareness of the areas of administrative law which will affect the implementation and design of economic instruments. If officials are alerted to principles of administrative law, they will usually be able to avoid challenges to their exercise of power by acting in accordance with these principles and seeking legal advice when they are in doubt as to how a power should be exercised.

Discretion

There are two important components relating to how legislative power is exercised: the considerations affecting how powers are exercised and the procedure followed in exercising power. We will consider the factors that can influence discretionary powers before turning to issues of procedure.

Arbitrariness and Proper Purpose

Government bodies must exercise discretionary powers in accordance with the purposes of the legislation that gives them authority and in a manner that is not completely arbitrary or capricious. [(116) -- 116. Roncarelli v. Duplessis, [1959] S.C.R. 121 at 140.] This means that powers must be exercised in good faith. It follows that government administrators, in making decisions, should not take into consideration facts or evidence irrelevant to statutory purpose and must not refuse to consider facts that are relevant to the statutory purposes. [(117) -- 117. Oakwood Development Ltd. v. St. Francois Xavier (Rural Municipality) (1985), 61 N.R. 321 (S.C.C.).]

Regulators generally are given a relatively broad discretion to consider relevant factors. For instance, in granting environmental emission permits or approving trades regulators can take into account both whether a facility meets technical standards under the environmental legislation as well as broader policy issues related to pollution prevention and maintaining of environmental quality. [(118) -- 118. Wimpey Western Limited v. Alberta (Director of Standards and Approvals of the Department of Environment) (1983), 28 Alta. L.R. (2d) 193 (C.A.).]

Indications of arbitrary behaviour or bad faith will include decision makers acting surreptitiously or, for no apparent reason, singling out an individual for different treatment than others. [(119) -- 119. Blake, above at footnote 115 at 89. ] These indications will tend to make the Court look closely at motives but will not necessarily be sufficient to quash a decision.

Discrimination is acceptable as long as it is discrimination for valid policy purposes related to the statute. [(120) -- 120. See Aluminum Co. of Canada Ltd. v. Ontario (Ministry of the Environment) (1986), 1 C.E.L.R. (N.S.) 1 (Ont. Div'l Ct..).] For instance, discriminating in monitoring requirements depending on the potential effects of permit exceedance is acceptable. Discrimination to reduce economic impacts of a regulation on a particular producer may also be acceptable. [(121) -- 121. Ibid.]

Fettering and Consistency of Discretion

Discretion must not be fettered in scope. Courts and academics have recognized the value in administrative bodies developing policies to help them apply their discretionary powers and to make decisions predictable. [(122) -- 122. Capital Cities Communications Inc v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141; Davis, K.C. "Discretionary Justice" in J.M. Evans et al., Administrative Law 3d ed. (Toronto: Emond Montgomery Publications, 1989).] However, regulators must not rigidly follow such policies and must be open to submissions that these policies not be followed in a particular case. [(123) -- 123. Maple Lodge Farms Ltd. & Government of Canada, Re: (1982), 137 D.L.R. (3d) 558 (S.C.C.). ] For instance, a board empowered to levy administrative fines can develop policies as to the appropriate level of fines, but it must not consider itself bound to follow these policies in every case. Similarly, a tradeable permit agency empowered to issue permits could not consider itself bound to follow directions from cabinet, unless the statute authorized binding directions.

On the other hand, inconsistency of policy may be an abuse of discretion in some circumstances. Where there is a reasonable expectation that a policy announced by government will be followed, tribunals should not vary the policy without giving some warning or notice to parties effected. [(124) -- 124. Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16 (Fed. C.A.).] What constitutes sufficient notice is discussed further below.

Bias

Decision makers must not be biased. Clearly they should not have any personal monetary interest in the outcome of a decision. They also may be required to conduct themselves so as to not lead an impartial observer to think they were biased. In some cases, such as where a Court-like tribunal hears appeals of administrative fines, decision makers must approach a decision without strongly held preconceptions. In other cases, such as where a board passes bylaws or regulations, or rules on matters of policy, they can have a clearly held position so long as they are open to submissions and changing their minds. [(125) -- 125. Save Richmond Farmland Society v. Richmond (Township) (1990), 75 D.L.R. (4th) 425 (S.C.C.); Newfoundland Telephone Company Limited v. Newfoundland (Public Utilities Board), [1992] 1 S.C.R. 623. ]

Bias will be acceptable if it is obviously condoned by statute. For instance, where a statutory body is empowered to investigate allegations and then hold hearings into the allegations, its combined investigatory and judicial role can be taken as an acceptance of bias by the legislature. [(126) -- 126. Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301. ] Therefore, departmental administrators levying administrative penalties can show some bias, but the tribunal to which the penalties are appealed would probably be expected to act in a relatively neutral way. There may be some bias if the same Minister that employs the administrators names the members of the tribunal, but it may only be permissible if it is clearly what was intended by statute.

Review of Regulations

All regulations must be clearly based on a statutory power to enact that type of regulation or to enact regulations on a particular subject. Generally, decisions of the Lieutenant Governor in Council or the Governor in Council are not reviewable by the Courts on the basis of what motivated enactment of regulations or whether cabinet considered sufficient material to determine what was in the public interest. [(127) -- 127. Thorne's Hardware Ltd. v. The Queen (1983), 143 D.L.R. (3d) 577 (S.C.C.); MacMillan Bloedel v. British Columbia (Minister of Forests) (1984), 4 Admin. L. R. 1 (B.C.C.A.).] The Court will likely only strike down regulations which are contemplated by legislation where the regulations by their very terms are clearly based on factors unrelated to the purpose of legislation or where there is strong evidence of some improper purpose. The Courts will not, for instance, review regulations made by the Lieutenant Governor in Council to see whether or not it had sufficient information to make an informed decision. [(128) -- 128. Ibid., MacMillan Bloedel.]

Courts have upheld regulations passed under environmental legislation which allowed the use of non-refillable steel cans but delayed the introduction of aluminum cans. This was done to allow the steel industry time to develop a lightweight steel can and to protect employment in the steel industry. These regulations were permitted by the environmental legislation despite the fact that aluminum cans were considered to be superior to steel from an environmental viewpoint. The majority of the Court found nothing unreasonable in cabinet concerning itself with job protection when implementing regulations, in spite of the fact that the statute was aimed at environmental protection. [(129) -- 129. See Aluminum Co. of Canada, above at footnote 120.]

Cases such as this give regulators wide discretion in developing regulations. So long as regulations implementing tradeable permits, deposit refund systems or emission charges are made for the purpose of environmental protection, they cannot be challenged merely because they take into account other factors such as job protection or equity.

Procedural Fairness

The second major area of administrative law addressed in this part is the procedure that must be followed in imposing regulatory or administrative restrictions. The central rule of administrative law is that a person exercising a power or discretion must "act fairly." This is obviously a vague standard. Generally, it means that before a decision adverse to a person's interests is made, the person should have the right to be informed of the facts on which the decision is based and should be given an opportunity to respond by stating a position and giving useful information to the decision-maker. [(130) -- 130. Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311.] The procedure, rather than the actual decision, must be fair. [(131) -- 131. Chief Constable of North Wales Police v. Evans [1982] 1 W.L.R. 1155 (H.L.).] The exact content of the duty of fairness will vary depending on the circumstances: the nature of the decision-maker, the nature of the decision being made, and the effect of the decision on the person claiming a right to fairness. In deciding what constitutes the right to procedural fairness, Courts are well aware of the need to make most decisions quickly, inexpensively and without protracted hearings.

The Right to Notice

In the context of environmental protection, a polluter's right to fair participation in the decision making process will vary. The right to notice can vary from verbally notifying a person of the gist of the case against her [(132) -- 132. Bennett v. Wilfrid Laurier University (1983), 43 O.R.(2d) 123 (Ont. Div'l Ct.), aff'd (1984), 48 O.R. (2d) 122 (C.A.).] to being able to review evidence. [(133) -- 133. Re: Toronto Newspaper Guild and Globe Printing, [1953] 2 S.C.R. 18; Re: County of Strathcona No. 20 and Maclab Enterprises (1971), 20 D.L.R.(3d) 200 (Alta. S.C., App. Div.).] If a tentative decision were made to substantially change the terms of a discharge license -- for example, changing requirements for monitoring equipment after substantial sums had been spent on a different system -- the permittee would probably need to be informed in advance of any meeting with regulators at which the changes are discussed. A vague statement that the permittee's operations would be discussed in a general fashion would be insufficient. [(134) -- 134. See Baiton Enterprises Ltd. v. Liquor Licensing Commission, [1985] 1 W.W.R. 186 (1984, Sask. Q.B.) for an analogous case on liquor licensing.] Similarly, if policies had been developed on when emissions trades should be approved or what administrative fines should be levied in particular circumstances, these should be publicly available and persons applying for trade approval or being fined should be informed of them. [(135) -- 135. In Griffin v. Canada (1989), 26 F.T.R. 185 the refusal of Agriculture Canada to certify a potato crop for sale was overturned because the farmers applying for certification had not been apprised of the standards for certification.]

Where regulators have in the past acquiesced to a practice by a permittee or committed themselves to a particular policy there may be a need to give some notice if the practice is deemed no longer acceptable or the policy is changed. [(136) -- 136. See for instance Douglas Lake Cattle Company Ltd. v. Minister of Environment and Parks, [1988] B.C.J. No. 489 (B.C.S.C.). ] Thus, if regulators start considering fugitive releases [(137) -- 137. Fugitive releases are emissions from equipment due to leaks in seals and valves. They contrast with end of pipe releases.] in calculating allowable emissions, after having discounted such releases for years, they may have a duty to notify affected parties.

The Right to be Heard

The right to be heard can vary from a formal court-like proceeding to an informal telephone conversation. The type of hearing that is necessary will depend either on the circumstances or the rules laid out in statute. The nature of the hearing will vary according to its importance and whether rights are being taken away or granted. Administrative decisions which may force a company out of business or take away some existing right invoke a more extensive right to be heard than decisions which deny an application. [(138) -- 138. See Blake, above at footnote 13, at 10-12; Re Webb and Ontario Housing Corporation (1978), 93 D.L.R.(3d) 187.]

If an emissions permit was cancelled or a major administrative fine levied, other than an automatic, absolute liability, fixed fine, the permittee would probably have a right to a relatively formal hearing and may even have a right to be represented by a lawyer at the meeting. [(139) -- 139. Baiton Enterprises, above at footnote 134.] Similarly, if a permit was being cancelled because of failure of the permittee to abide by its terms, the permittee would have the right to make extensive representations to the decision-maker. [(140) -- 140. Prysiazniuk v. Hamilton Wentworth (Regional Municipality) (1985), 51 O.R.(2d) 339 at 344 (Div. Ct.).] On the other hand, if a tradeable permit transfer were denied, the applicant may only have a right to an informal hearing, an exchange of letters or even just a telephone discussion. [(141) -- 141. McInnes v. Onslow Fane, [1978] 1 W.L.R. 1520 (Eng. Ch. D.).]

Procedural requirements usually will be lower if a decision can be appealed and the body hearing the appeal has the right to consider all the merits of the decision. For instance, an administrative fine may be levied or a license suspension ordered without an oral hearing so long as there is a body to which the decision can be appealed. [(142) -- 142. Theriault v. Nova Scotia Marketing Board (1981), 48 N.S.R. 116 (N.S.S.C., T.D.).] Where statutes have given the right to appeal decisions to a tribunal, the tribunal generally will have to hold a full hearing.

Procedural requirements will vary according to the nature of the decision-maker. The Court's supervisory powers over cabinet decisions is extremely limited and there is generally no right to a hearing for cabinet decisions. [(143) -- 143. Islands Protection Society v. Environmental Appeal Board (1988), 32 Admin L.R. 36 (B.C.S.C.); See also Gray Line of Victoria v. Chabot, [1984] 2 W.W.R. 635 for a case involving court review of cabinet process.]

Procedural requirements are relaxed or non-existent for decisions which are "legislative in nature, affecting the community as a whole rather than particular individuals, and if based on policy rather than findings of fact, the duty to act fairly is unlikely to be imposed." [(144) -- 144. See MacMillan Bloedel v. British Columbia (Minister of Forests) (1984), 4 Admin.L.R. 1 (B.C.C.A.). ] Thus, in the absence of legislation to the contrary, where generally applicable regulations are developed by cabinet, a regional district or an environmental agency, there will be no right to procedural fairness.

However, where regulations are adopted by a regional district or agency and involve a dispute that affects a few individuals or one individual more than others there may be a need to consult. [(145) -- 145. Township of South-West Oxford v. A. G. Ontario (1983), 44 O.R.(2d) 376 (H.C.).] For instance, a special board given the power to make regulations for the approval of permit trades, likely could pass -- without any consultation or notice -- generally applicable regulations disapproving of a certain type of trade. However, it might not be able to pass such regulations in the same way if they applied only to a single transaction.

Structuring Legal Powers

The potential for successful administrative law challenges to regulatory powers can be reduced by statutorily defining a process for the exercise of these powers and by following this process. If legislation clearly specifies the form of hearing and notice which must be given in different circumstances, the Courts will not strike down decisions made in accordance with the legislation. [(146) -- 146. Even if a process is biased or contrary to procedural fairness, courts will accept it if it is clearly allowed by statute. See Law Society of Upper Canada v. French (1974), 49 D.L.R. (3d) 1 (S.C.C.).] Moreover, a statutorily defined process will give much more guidance to administrators than the vague principles of administrative law. In defining this process in enabling legislation for economic instruments it is essential to provide for adequate public involvement.

Public Involvement and Administrative Law

We recommend a strong role for the public in the exercise of regulatory and administrative processes. In part, this is to avoid laws being challenged due to a breach of the public's rights to procedural fairness. However, the law has generally not allowed interested members of the public to make representations on decisions that affect them unless they have some direct interest (other than as a concerned citizen) in the outcome of the decision. We strongly support public participation in environmental regulatory or administrative decisions particularly where they affect the public interest.

Public Involvement in Regulation Making

There are many reasons supporting public participation in setting regulations that implement economic instruments. [(147) -- 147. This section is adapted from "Public Access to Environmental Justice," Franklin Gertler, Paul Muldoon & Marsha Valiante, in Sustainable Development in Canada: Options for Law Reform, The Canadian Bar Association Committee Report, September 1990 (Ottawa: Canadian Bar Association, 1990) at 94-95.] Regulations developed with public input will lead to decisions that are more informed and accepted. Interested groups and individuals can challenge the data upon which the proposed regulations are based, test the regulatory assumptions employed, and provide a new or different perspective. Public participation ensures a fairer process, since those who must bear the risk of the decisions will have input into the process. The public is essential in helping define the public interest through direct representations to regulators. Also, increasing public participation may well increase the public acceptance of a decision.

The Canadian Bar Association Sustainable Development Committee recommended in its 1990 report on options for law reform for sustainable development in Canada that:

The federal government should initiate a formalized rule-making process for the development of environmental regulations .... These processes should include the following elements:

a. public notice that the regulations are being developed or considered;

b. release of sufficient background information and technical documentation;

c. provision for public comment, with the time to comment to be specified in regulations;

d. a written response by the government to the public comments;

e. the opportunity to request a public hearing;

f. criteria for refusing a hearing should be established and, where the request for a hearing is denied, written reasons for the denial should be issued; and

g. funding for public interest intervenors or participants.

We wholeheartedly endorse these recommendations and note that this approach has been largely adopted in the Ontario Environmental Bill of Rights, 1993. [(148) -- 148. Bill 26, 3d Session, 35th Legislature. ]

Public Involvement and Appeal

We also recommend statutory processes which ensure a right to public involvement in the exercise of administrative powers. Entrenching a public right of involvement and provisions for public notice may help avoid Court challenges based on individuals claiming that their rights to procedural fairness have been denied by administrators applying an ambiguous standard. The same reasons which dictate public involvement in regulation making dictate that there should be meaningful public involvement in administrative decisions.

Privative Clauses

We also recommend that drafters of environmental protection legislation seriously consider restricting the ability of the Courts to review the decisions of administrators and appeal boards through what is known as a privative clause. [(149) -- 149. One of the reviewers of this report suggested that, as an alternative to a privative clause, review of administrative and appeal board decisions by the Courts could be restricted by requiring that appeals be filed within a limited time and only with the leave of the Court. This limits the potential for use of judicial review as a stalling tactic since the Courts could only allow those calls for review which have substantial merit to proceed. At the same time the role of the Courts in overseeing the fairness and legality of administrative decisions is preserved. We do not recommend this approach because tight time frames for appeal will tend to have a greater restrictive effect on public access to judicial review as public interest groups seldom have quick access to legal resources. Second, with regard to requiring leave to review administrative decisions, it is our experience that most Courts in Canada are reluctant to limit appeal rights and that seeking leave to appeal could merely create a new procedural step delaying final decisions.] Many specialized decision making structures limit the ability of the Courts to review decisions. For instance, decisions of labour relations boards and human rights boards cannot be reviewed by the Courts unless these bodies step out of their area of statutory jurisdiction.

This helps ensure that decision makers familiar with economic instruments for environmental protection are responsible for implementing the legislation. It also avoids administration becoming mired in extensive appeals to the Courts.

The Court's role in ensuring appeal boards stay within their areas of jurisdiction includes the ability to ensure appeal boards abide by the rules of natural justice and that they interpret their legislation in a way that is reasonable, even if it is not the way the Court would have interpreted it. On the other hand, it means that the traditional legal rights of a party to challenge a tribunal's interpretation of the law in front of an independent and impartial Court is limited. While restrictions on this right should not be made lightly, we note that it may be appropriate in some circumstances to lessen the prospect of litigation aimed at delaying action and intimidating decision-makers.

Summary

[ Econ. Inst. Home ] [ Chp.1 ] . . . * . . . [ Chp.3 ] [ Chp.4 ] [ Chp.5 ] [ References ]