March 31, 2009

Clarification Decision Released– an “Oliphant” Approach?

Filed under: 1 — ruleswatch @ 5:36 pm

Justice Oliphant has restricted the scope of his earlier decision on standards to make clear that he will use the statutes he cited as broad guideposts at best as the evidence leads him and that he expects that if the Criminal Code is of any assistance it will be on a “trifling basis” at best.

The Commissioner also sought to make it clear that he would use the statutes to ensure that he does not inadvertently use statutory language to characterize the actions of actors the subject of his own inquiry and so avoid running afoul of clear direction from the Supreme Court of Canada.

What may be much more interesting – on an ongoing basis – to lawyers than the ruling’s substantive result, however, is the factors that the Commissioner found and took into account in exercising his authority to respond to the request for clarification of his ruling.

The Commissioner found, that although there is a general rule against a statutory decision-maker revisiting a final decision which it had made within its own jurisdiction, he had such authority. He did consider four factors which led him to conclude that a Commission of Inquiry, at least, was to be less bound than perhaps other authorities might suggest.

Firstly, [para 11] citing SCC authority, (Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848) he concluded that the fact that there is no right of appeal from his decisions (albeit there is the possibility of judicial review) suggests that the idea of having exhausted its authority to make the decision (functus officio) be applied less strictly in a commission context.

Secondly, [para 12] he found this conclusion supported by the proposition that his terms of reference authorized him to adopt procedures he felt efficient to achieve the objects of the inquiry.

Third, [para12] he characterized the decision as “interlocutory” rather than final.

Finally, he noted significantly [para 12] “…I am of the view that no party to this Inquiry or the public interest will be prejudiced by my clarifying the standards ruling.”

This authority may well turn out to be handy. While factors 1 and 3 particularly including the fact that this is a public inquiry were significant to this particular decision, they may be of less importance, and hence less durability compared to the other two in the longer run.

Factors 2, being the general authority to exercise jurisdiction to effectively reach a conclusion, and 4, that the clarification poses no prejudice to either the parties or to the public interest, suggest that they could have potential as the foundation for a more general, future administrative “clarification” test.

The decision is clear and crisp and unadorned. Mercifully, it does not contain a single instance of the use of either of the word, “functional” or “functionalism”. There is not a wisp of a hint of pragmatism.

Perhaps, therefore, in gratitude and quiet homage, if the test applied by this judge in this unlikely context does spread more broadly into Canadian administrative law, we can take a rest from the usual practice of naming an approach after the participants, label it simply “the Oliphant approach,” and be done with.

By the way, odds of a responsible admin law challenge? < 10%; odds of success: negative.


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