Two important Administrative Law decisions came down this month – one from the Supreme Court of Canada and one from the B.C. Supreme Court. Each engages the enduring and vexing question of how to understand the legal limits on discretionary decisions by those authorized by statute to apply their own independent judgment. In Kanthasamy, the Supreme Court quashed a decision by a humanitarian and compassionate (H&C) decision maker involving an application by a child for an exemption to the Immigration and Refugee Protection Act. In Trinity Western University, the Chief Justice of the B.C. Supreme Court weighed in on the ongoing saga of TWU’s attempt to establish a law school. The Court quashed a decision of the Law Society of British Columbia (LSBC) to deny admission of graduates of the TWU program based on the discriminatory nature of a covenant all students and staff must agree to be bound by. In each case (although the facts and circumstances were very different) the court overturned discretionary decisions because the decision-makers fettered their discretion and failed to consider all the relevant factors they should have. Looking a little more closely at each reveals something important about why we so often get discretion wrong.
Kanthasamy involved an application from a Tamil teenager living in Canada who feared for his safety if returned to Sri Lanka after his application for refugee protection was denied. He applied for humanitarian and compassionate relief from deportation under s.25(1) of the Immigration and Refugee Protection Act. The Immigration Officer denied the application on the grounds that she was not satisfied “hardship that was unusual and undeserved or disproportionate” would result from his return. This particular standard turns out to be important, as it appears nowhere in the Act, but is the formulation used in the guidelines developed for Immigration Officers exercising discretion under s.25(1) of the Act. Justice Abella, writing for a seven judge majority (with Moldaver and Wagner JJ. dissenting), concluded that the Immigration Officer had fettered her discretion by asking only if the hardship that would flow from deportation was “unusual and undeserved or disproportionate.” She asked herself, in other words, the wrong question. She should have considered the full panoply of issues that may give rise to grounds for an exception to the Act on humanitarian and compassionate grounds.
Justice Abella notes that Guidelines cannot be considered binding – they can inform a discretionary decision-maker’s judgment but cannot take the place of actual judgment or fulfilling the equitable goals of the statutory provision. Additionally, the legislation specifically calls on decision-makers to take into account the “best interests of a child” who is directly affected by a decision (a legislative change following the Supreme Court’s landmark decision in Baker in 1999 in which a humanitarian and compassionate leave application was held to have been unreasonably denied because there was no indication that the best interests of children affected by the decision had been considered. Justice Abella observed, for example, that the Immigration Officer in Kanthasamy had failed to consider the mental health implications of removal given the youth’s PTSD and other diagnoses.
Chief Justice Hinkson of the B.C. Supreme Court had a similar objection to the Law Society of British Columbia’s decision with respect to Trinity Western University’s proposal to open a law school. Trinity Western involves facts that are well known. One of Canada’s only private universities, Trinity Western University requires all students and staff to sign a covenant which, inter alia, “sexual intimacy that violates the sacredness of marriage between a man and a woman [Romans 1:26- 27; Proverbs 6:23-35].” Virtually every Law Society in Canada has now considered the issue of TWU’s Law School and whether its graduates would be eligible to practice in the various jurisdictions in Canada, notwithstanding the covenant all TWU law students and faculty would have to sign.
Initially, following preliminary approval by the Federation of Law Societies of Canada of the proposed TWU curriculum in December of 2013, the Law Society of British Columbia recognized that graduates of TWU would be eligible to enter the licensing process in B.C. to become lawyers. After a tumultuous special meeting of the Benchers in June of 2014, a motion was passed calling for a referendum on the subject. The results of a referendum of B.C. lawyers were circulated in October 2014, which revealed approximately 73% of B.C. lawyers disapproved of the TWU proposal. In the face of the referendum results, and without further substantive debate or reasons, the Benchers voted 25-1 to reverse their earlier approval and endorse the motion opposing TWU’s proposal.
For Hinkson, C.J.B.C., this amounted to an abdication of the Law Society’s discretionary decision-making role. Hinkson, C.J.B.C. explained,
“Fettering of discretion occurs when, rather than exercising its discretion to decide the individual matter before it, an administrative body binds itself to policy or to the views of others… Although an administrative decisionmaker may properly be influenced by policy considerations and other factors, he or she must put his or her mind to the specific circumstances of the case and not focus blindly on a particular policy to the exclusion of other relevant factors…”
Hinkson, C.J.B.C. concluded that the Benchers permitted a non-binding vote of the LSBC membership to supplant their own independent judgment, and in so doing, wrongfully fettered their discretion.
In both Trinity Western and Kanthasamy, the very nature of the discretion at issue meant there could not be only one right answer. The concern of each Court was not that the decision-makers should have reached a different decision (though in each case, that could well be their view), but rather that the decision-maker failed to exercise judgment as required under their governing statutory authority. What is missing for the Court in each case is, in a word, authenticity.
Authenticity means not just explaining a basis for a decision, but explaining the actual bases for the decision in question. Authenticity is an issue that gets very little air time in law, and particularly in Administrative Law. What has been celebrated as a “culture of justification” has resulted in more kinds of reasons for more kinds of decisions than ever before, but too often this boils down to an acceptable boilerplate. In each of Trinity Western and Kanthasamy, if only the decision-makers had stated “We have reached our decision after careful reflection of all of the evidence before us, considering all of the various factors engaged by the Act, the possible options to advance the purposes of the Act, and mindful of our distinct role in the statutory scheme,” it is likely the standard set by the Courts in those cases would have been met. But would any of the broader goals of Administrative Law – fairness, accountability, justice – be served?
The problem is that boilerplates can be compelled (with the proper direction, template and incentives), but authenticity is trickier. Indeed, it often appears only where a decision-maker concludes there is nothing to lose by being honest. The great irony of Baker, mentioned above, is that because the Immigration Officer in that case believed he was under no obligation to provide reasons, he shared the actual justification for denying a mother of four exemption from the then Immigration Act – which included profoundly discriminatory impulses against the applicant based on her mental health, her being a recipient of social welfare and her having additional children in Jamaica – and the view that the whole immigration scheme in Canada was a “catastrophy [sic]”. While objectionable, these justifications were undoubtedly authentic. While sometimes it may disclose the dark side of the human dimensions of administrative discretion, authenticity also can enhance the dignity and worth of those affected by decisions in a way boilerplate fidelity to Administrative Law axioms rarely will. Subsequent to Baker and the Administrative Law requirement of “reasons,” such windows into the actual thinking of decision-makers (whether objectionable or wise, thoughtful and appropriate) have been all too rare. Boilerplate explanations which say all the things Administrative Law dictates ought to be said, on the other hand, are all too common.
The importance of discretion is that it allows (and, indeed, requires) judgment. Judgment holds the promise of fair and just solutions tailored to the circumstances of particular cases in a way that hard and fast rules cannot. Discretion allows legislative intent and broader legal values to be given human expression – but only where that intent and those values are kept in mind by those exercising judgment. Administrative Law ought to be the mechanism to ensure that discretion is a relationship, in which both the decision-maker and those affected by the decision are engaged in a legally significant dialogue. Discretion can never succeed if it is a one-way street or where the decision-maker or the people affected by the decision simply talk at one another. Depending on your views on the substance of Kanthasamy and Trinity Western, you might be inclined to think one or the other Court got it right, but if you see the goal of Administrative Law as enabling those affected by a decision to understand why the decision in their case actually was reached, and justifying that decision so that it can be demonstrated to be reasonable, and the exercise of public authority to be fair and just, then both decisions stand as cautionary tales.