Bowman: The Door to Justice Left Open.

5 June 2020

“…from time to time … lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognize”[1]

Fairness, as a function of social invention, is malleable and responsive, its definition and development following the never-ending path of public persuasion. Courts are designed to uphold an image of fairness as a reflection of the times. Bowman et al. v. Her Majesty the Queen,[2] is a glaring illustration of lack of procedural fairness in decision-making and judicial complacency on review. To the detriment of the Applicants, the public, and the administration of justice, Bowman missed the opportunity to adopt a more cogent approach to fairness leaving the elephant of unfairness trapped and exposed in an abyss of injustice.  

Description

The basic income pilot research study (“the program”) was developed by the Ontario government (“the Respondent”) to inform future policy decisions. It involved 4,000 human participants and was to last “three years” or “up to three years” with advance notification of termination. Veritas contracted with the Respondent as the Independent Review Board (“the IRB”) and was responsible for the ongoing ethical review with authority to oversee and suspend the program. Based on written assurances, the Applicants engaged in various initiatives to improve their condition in life and self-reported an increase in self-esteem and independence. 

The program was terminated abruptly, prematurely, and without proper notice to the participants. The Respondent cited cost, paperwork, lack of work ethic resulting in greater “usage/uptake” as reasons for the cancellation. Only after the IRB expressed concern about not being consulted on wind down did the Respondent submit a termination strategy. The IRB then issued a finding of Serious Non-Compliance and the Respondent terminated its arrangement with the IRB. 

This is a claim for judicial review made by former participants of the program based on their detrimental reliance, legitimate expectation, and that the decision to terminate the program was irrational, made in bad faith and/or unethical. The Applicants sought to quash the decision to cancel the program. They did not seek continuation of funding. 

Legal History

This judicial review matter was held at the Divisional Court of the Ontario Superior Court of Justice on January 28, 2019 with the decision dated February 14, 2019.

Legal Issues and Findings

  1. When are Policy Decisions Subject to Judicial Review? 

The Court found that they did not have the power to review policy decisions of government. Allocation or continuance of funding cannot be ordered and past funding cannot create enforceable rights.

  • Does this Decision alter individual rights, obligations or legitimate expectations? 

The Court found that judicial review was not available even where financial interests and individual well-being were at issue. A motion to quash would only be available where the decision alters individual rights that are enforceable in private law or where it deprives them of a benefit they legitimately expect to continue or not to be withdrawn without an opportunity to respond. There was no legitimate expectation to be consulted on funding or policy decisions. 

  • Was the Decision Irrational or in Bad Faith? 

The Court held that it is not bad faith to make policy decisions without consultation and that commentary made in the Legislature cannot be the basis for government intention.

  • Does this Court have the authority to Grant the Order to Quash? 

The Court found that an order to quash would essentially mean the direction of government expenditures and they cannot compel the allocation of government funds.

Judgment

A unanimous Court held that the program is a government funding policy decision that does not engage individual rights and is not justiciable on judicial review. Quashing the order would encroach on the political function of the distribution of funds. The Application was dismissed with no order for costs. The Court clarified that this decision did not affect the Applicant’s class action matter.    

Procedural Fairness: A Baker Analysis

In Canada, based on the doctrine of separation of powers, courts will typically not interfere in broad based or general types of policy decisions.[3] There is however, a general duty of procedural fairness for administrative decisions.[4] The five factors used to determine whether procedural obligations are triggered and how they manifest according to the facts was established in the seminal case of Baker v. Canada (Minister of Citizenship and Immigration). [5] Such an analysis follows.  

  1. The nature of the decision being made and the process followed in making the decision.

The decision by the government to terminate funding was achieved through a legislative change to the Supply Act.[6] According to the Knight v. Indian Head School No. 19[7] continuum, this places it at the end of the spectrum that is less judicial requiring fewer procedural protections. The crux of the Bowman decision lies in the distinction between the legislative decision that would apply to the Ontario public generally, and addressing the needs of the Applicants as active program participants. While the exercise of a legislative function invites no duty of fairness by the government,[8] participatory rights can be implied where “rights, privileges or interests of an individual” are affected.[9] In the absence of statutory authority, the courts can rely on their inherent jurisdiction to control their own process.[10]

The foundation for claims of procedural fairness has been extended from “rights” to mere privileges and interests.[11] Recipients of state assistance can be entitled to procedural fairness on the termination of their benefits with a claim advanced on the basis of privilege.[12] The level of fairness reasonably warranted by the circumstance will be influenced by whether the individual is a new applicant or existing beneficiary.[13] The fact that the claim is made by existing beneficiaries indicates that more procedural protections should have been extended in this decision-making process.

  • The nature of the statutory scheme and the terms of the governing statute. 

This decision was couched in terms of a political decision to amend legislation. In this regard, Parliamentary supremacy does afford government the authority to amend law without fetter. However, the decision to end the program specifically was an administrative decision made by the legislature that affected both future applicants in general as well as the identifiable beneficiaries in the program. It is the change as it applies to the Applicants that is at issue in this case. It is submitted that because this decision invited neither consent nor consultation, no appeal procedure through judicial review was apparent, and the decision was determinative of the issue, greater procedural protections should have been extended.[14] The content of this protection may have manifested as review of the IRB research data, compliance with the IRB, facilitating consultation, or considering written submissions from participants. 

  • The importance of the decision to the individuals affected. 

Classifying a decision as ‘policy’ does not necessarily immunize it from judicial review and it is an assessment of the effects that is important.[15] In Bowman, the Applicant’s livelihood, or a substantial portion thereof, was at risk. Although not argued, economic loss is of such importance that it could potentially be framed in terms of a fundamental freedom. 

Section 7 of the Canadian Charter of Rights and Freedoms provides that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”[16] Fundamental justice includes procedural fairness.[17] “’Liberty’ is engaged where state compulsions or prohibitions affect important and fundamental life choices.”[18] By employing a large and liberal interpretation,[19] liberty “may embrace individual freedom of movement, including the right to choose one’s occupation and where to pursue it, subject to the right of the state to impose, in accordance with the principles of fundamental justice, legitimate and reasonable restrictions on the activities of individuals.”[20] Although dicta, Lamer J would have included matters of control over physical or mental integrity in the arena of administrative law.[21] It is not a stretch to imagine how economic well-being as an aspect of section 7 could affect the “physical and psychological integrity”[22] of an individual preventing “fundamental personal choices”[23] such as the restriction of mobility.[24] To engage security of the person, state imposed stress must be state imposed and must be serious psychological prejudice.[25] Even the stigma suffered by a loss of dignity through ruined reputation has been accepted as a supporting concept of Charter rights.[26] A section 1 justification would explore whether it is reasonable to deprive the applicants of the right to life, liberty and security of the person by not affording them the opportunity to be notified properly and be to heard in the matter respecting their basic income. 

Even if this economic loss could not rise to the level of a s. 7 violation, it does at a minimum, attach close to the biographical core. Canadian jurisprudence generally favours entitlement to a right to be heard where the effects of the decision are substantial.[27] This indicates that greater procedural fairness should have been used in this decision-making process.

  • The legitimate expectations of the persons affected by the decision. 

Compared with the general area of procedural fairness, legitimate expectation is concerned with conduct in the exercise of authority. This doctrine derives from English law protections as engrafted onto silent statutes.[28] The opportunity to make representations depends on “whether he has some right or interest, or… some legitimate expectation of which it would not be fair to deprive him without hearing what he had to say.”[29] The representations must be “clear, unambiguous and unqualified.”[30] Where this derives from a promise to a defined group, the individual is entitled to rely on what was promised[31] with the required certainty akin to contract.[32]

In Bowman, the Applicants had been assured the arrangement would be extended for three years. The contract with the IRB is evidence that the terms of the program, including termination procedures, would be done ethically and in accordance with oversight direction of the IRB. It follows that the Applicants were entitled to rely on these clear representations.

While the general consensus is that procedural rights cannot create substantive rights,[33] it is clear that they can still generate an entitlement to procedural protections.[34] Despite the difficulties involved with distinguishing procedural from substantive,[35] and discerning results through various means,[36] true to the ever-widening reach of the common law, remedial limitations have enjoyed judicial pushback. Substantive results have been supplied through judicial review at both the trial[37] and appeal[38] level in Canada and have a strong persuasive influence internationally.[39] Although Canadian Association[40] was overturned on appeal, Reed J did derive support based on legitimate expectation from UK jurisprudence confirming that judicial review was available for a general decision involving a fleet of 300 taxi drivers[41] where there was “some legitimate expectation of which it would not be fair to deprive him without hearing what he has to say.”[42] Bastarache J demonstrates how substantive results in this type of situation can be achieved by upholding the decision of a previous Minister rather than considering it as a fetter on the discretion of the current Minister.[43] This approach is also operative in Ireland[44] and Australia.[45] In fact, the High Court of Australia, relying on Canadian authority, held that based on a series of prior approvals, the applicant had a “legitimate expectation” of renewal.[46] Clearly, fairness must include “fairness of outcome” and the doctrine of legitimate expectations cangive rise to substantive remedies.[47]

Although the Applicants did not request continuation of funding, following through with the limited terms of the agreement would have allowed Parliamentary supremacy to remain intact while delivering a more secure version of fairness to the Applicants. It is submitted that a contract breached by a government party in the context of a legislative function does not, nor should it, immunize from judicial review. Requiring separate action based on estoppel or breach of contract is unduly artificial and arguably contrary to the rule of law. 

Overall, it is clear that there were legitimate expectations on which to found a greater level of procedural fairness protection.

  • The agency or administrator’s choice of procedure

When the decision-maker is afforded greater discretion to choose its procedures, greater weight should be extended to their choice.[48] In this case, the matter was dealt with unilaterally by the government. Not only did the government not consider recommendations from the IRB data, they refused to abide by recommendations about program termination. Although this should indicate greater deference to the decision to terminate the program, allegations of bad faith either allow for less weight to be accorded to its discretionary nature or eliminate it entirely from consideration. 

While it is clear that consent is not required for purely policy decisions, it is less clear about when consultation is required. Generally, based on the school closing cases,[49] consultation is required for more serious matters. Although it is not clear in Bowman whether the Minister’s remarks were made in the Legislature and covered by Parliamentary privilege,[50] Binnie J. makes clear, “[t]he communications from the Minister are not simply evidence of the state of the Minister’s mind, but are the source of the respondents’ entitlement.”[51] Representations about a three-year program length was clear. The IRB was charged with oversight and approval of the program. Terminating this contract based on non-scientific stereotypes and unfounded data seems rather disingenuous. The timing of the cancelation may also be evidence of bad faith given that it occurred just after the finding of Serious Non-Compliance by the IRB. Not working to resolve this violation is a clear disregard of ethical safeguards. 

Discussion

It is trite law that procedural fairness is required in all administrative decision-making processes.[52] Based on a Baker analysis, it is clear that the decision to terminate the program demanded a higher level of procedural fairness. This alone provides grounds to support judicial review.[53] The content of the duty to act fairly will vary according to the facts with certiorari available to support the purpose of judicial review.[54] “Certiorari avails as a remedy wherever a public body has power to decide any matter affecting the rights, interests, property, privileges, or liberties of any person.”[55] In Bowman, based on silence in the statute, the degree of economic hardship, and the public interest, there was basis for an inference of a duty to act judicially or fairly, and that certiorari was an available remedy.

By narrowing the issue as a policy decision, failing to engage in a review of procedural protections, and substituting remedies for those explicitly requested demonstrates an unacceptable level of misunderstanding of the issues that warrant judicial review. Not according protections based on the legitimate expectations of the Applicants demonstrated a lack of appreciation for an evolving notion of fairness in the developing jurisprudence. Further, in deciding that bad faith was not an issue, the Court failed to consider issues of ethics and timing. Deciding that an order to quash would be the equivalent to directing government spending failed to appreciate the certainty of the representations, the finite nature of the expenditure and the fact that while the court cannot compel funding generally, this was a debt incurred by the previous Minister that they could decline to overturn.

Social and Political Implications

“The true measure of any society can be found in how it treats its most vulnerable members.”[56] Arguably, livelihood defines, to a large degree, who we are as individuals. The program objectives of increasing and stabilizing income, reducing economic anxiety, improving housing stability, mental health and employment outcomes, and fostering individual autonomy all have implications in various social arenas of public policy. By terminating the program without adequate procedural fairness protections exposes the callous disregard for which the government cares for its citizenry. Justice must be seen to be done. Failing to afford greater procedural protections as merited may be seen as a dangerous blurring of the lines between the legislature and the court. The critical check on the system provided by the court was arguably lost to antiquated notions of fairness and unwarranted discretion to legislative action. 

Governments remain in power for as long as they hold the confidence of the voters. A recent Gallup poll[57]indicates that seventy-five per cent of a sample of 10,000 Canadians favored universal basic income. While the Respondents may not have seen fit to continue the program, the federal government has incorporated this type of approach in their response to our current crisis.[58] As of May 14, 2020, just two months into a national emergency, a total of 13.77 million Canadian Emergency Response Benefit (CERB) applications have resulted in a much needed and appreciated $35.88 economic stimulus.[59] While electors may not have direct sway with the court or its procedures, they can use their collective power to adjust the measure by which fairness is gauged within a civil society. Courts, as a barometer of social values will ultimately reflect this growth and expand to meet evolving standards of fairness.  

Conclusion

Fairness may be dynamic, but like an elephant in a room, lack of fairness sticks out. In Bowman, lack of procedural fairness, narrow judicial interpretation, and declining a more fullsome response for legitimate expectation leaves the elephant of unfairness conspicuously standing with the door to greater justice to “remain open for another day.”[60]


[1] Maxwell v. Department of Trade and Industry [1974] QB 523 (CA) at 539.

[2] 2019 ONSC 1064 [Bowman].

[3] 1990 CanLII 138 (SCC), [1990] 1 SCR 653 [Knight].

[4] Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, 1981 CanLII 166 (SCC), [1981] 1 SCR 92 [Nicholson].

[5] 1999 CanLII 699 (SCC), [1999] 2 SCR 817, L’Heureux‑Dubé J at paras 21–28 [Baker].

[6] SO 2017, c4.

[7] Knightsupra note 3.

[8] Authorson (Litigation Guardian of) v. Canada (Attorney General), 2003 SCC 39, [2003] 2 SCR 40.

[9] Cardinal v. Director of Kent Institution1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643 at para 653 [Cardinal].

[10] Cooper v Board of Works for Wandsworth District (1863), 143 ER 414, Byles J at para 194.

[11] Cardinal, supra note 9.

[12] Re Webb and Ontario Housing Corporation, 1978 CanLII 1490 (ON CA) [Re Webb].

[13] Ibid.

[14] D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at 7-66 – 7-67.

[15] Canadian Association of Regulated Importers v Canada (Attorney General),1993 CanLII 2950 (FC), [1993] 3 FC 199, Reed J [Canadian Association].

[16] Canadian Charter of Rights and Freedoms, s 7, Part 1 of the Constitution Act, 1982, being Schedule B to theCanadaAct 1982 (UK), 1982, c 11 [Charter].

[17] Duke v. The Queen [1972] SCR 917 at para 923.

[18] Blencoe v British Columbia (Human Rights Commission) 2000 SCC 44, [2000] 2 SCR 307 at para 49 [Blencoe].

[19] Edwards v. Canada (Attorney General), 1929 CanLII 438 (UK JCPC).

[20] Jones v. The Queen [1986] 2 SCR 284, La Forest J.

[21] Reference re ss 193 and 195(1)(c) of the Criminal Code [1990] 1 SCR 1123.

[22] R v Morgentaler, [1988] 1 SCR 30, Wilson J.

[23] Blencoesupra note 18, Bastarache J at paras 49, 54.

[24] Wilson v British Columbia (Medical Services Commission) (1988), 53 DLR (4th) 171 (BCCA).

[25] Blencoesupra note 18 at para 82. 

[26] Hill v. Church of Scientology of Toronto [1995] 2 SCR 1130.

[27] See Bezaire v. Windsor Roman Catholic Separate School Board, 1992 CanLII 7675 (ON SC) [Bezaire]; see also Elliott v. Board of Education of Burin Peninsula, 1998 CanLII 18114 (NL CA) [Elliott].

[28] Gus Van Harten, David J. Mullan and Janna Promislow, Administrative Law; Cases, Text, and Materials, 7th ed (Toronto: Emond Publishing, 2015) at 148.

[29] Schmidt v Secretary of State for Home Affairs, [1969] 2 ch 149 (CA), Lord Denning MR [Schmidt].

[30] Canada (Attorney General) v Mavi 2011 SCC 30, [2011 2 SCR 504, Binnie J at para 68 [Mavi].

[31] Apotex Inc v Canada (Attorney General), [2000] 4 FC 264 at para 122.

[32] Mavi, supra note 30 at para 69.

[33] Reference Re Canada Assistance Plan (B.C.), 1991 CanLII 74 (SCC), [1991] 2 SCR 525.

[34] Van Hartensupra note 28 at 152.

[35] Mount Sinai Hospital Center v Quebec (Minister of Health and Social Services), 2001 SCC 41 (CanLII), [2001] 2 SCR 281 at 35 [Mount Sinai] citing Bendahmane v. Canada (Minister of Employment and Immigration)1989 CanLII 5233 (FCA), [1989] 3 F.C. 16.

[36] See Ibid where Binnie J and Bastarache J achieved similar results through different means, the former through patent unreasonableness and the latter through upholding the decision of the previous Minister.

[37] Gingras v. Canada1990 CanLII 8045 (FC), [1990] 2 F.C. 68 (T.D.); Bloomfield v. Saskatchewan (Minister of Health), [1986] S.J. No. 675 (QL) (QB).

[38] Sous-ministre du Revenu du Québec v. Transport Lessard (1976) Ltée1985 CanLII 2965 (QC CA), [1985] R.D.J. 502.

[39] R. v. Secretary of State for the Home Department, ex parte Khan, [1984] 1 W.L.R. 1337 (CA), Parker LJ; R. v. Secretary of State for the Home Department, ex parte Ruddock, [1987] 2 All E.R. 518 (QB), Taylor J; R. v. Ministry of Agriculture Fisheries and Food, ex parte Hamble (Offshore) Fisheries Ltd., [1995] 2 All E.R. 714 (QB), Sedley J at 724.

[40] Canadian Association, supra note 15.

[41] Regina v. Liverpool Corpn., Ex parte Liverpool Taxi Fleet Operators’ Association, [1972] 2 Q.B. 299 (CA).

[42] Schmidt, supra note 29 at para 170.

[43] Mount Sinaisupra note 35.

[44] Webb v. Ireland, [1988] I.R. 353 (SC).

[45] Attorney-General (NSW) v. Quin (1990), 64 A.L.J.R. 327, Mason CJ, at 336.

[46] FAI Insurances v Winneke (1982), 151 CLR 342.

[47] R. v. North and East Devon Health Authority, ex parte Coughlan, [2000] 3 All E.R. 850, Lord Woolf MR at para 71.

[48] IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, Gonthier J.

[49] See Bezaire, supra note 36; see also Elliottsupra note 36.

[50] Bowman, supra note 2 at para 31.

[51] Mount Sinai, supra note 35 at 4.

[52] Nicholson, supra note 4.

[53] David Phillip Jones, Principles of Administrative Law, (Toronto: Carswell, 2009) at 646.

[54] Hutfield v. Board of Fort Saskatchewan General Hospital District No. 98, 1986 CanLII 1789 (AB QB).

[55] Martineau v. Matsqui Inst. Disciplinary Bd., 1979 CanLII 184 (SCC), [1980] 1 S.C.R. 602, Dickson J at paras 622–23.

[56] Quote popularly attributed to Mahatma Gandhi.

[57] RJ Reinhart, (2019), “Universal Basic Income Favored in Canada, U.K., but not in the U.S.”, online: <https://news.gallup.com/poll/267143/universal-basic-income-favored-canada-not.aspx>. 

[58] Canadian Broadcasting Corporation. “Trudeau unveils $82B COVID-19 emergency response package for Canadians, businesses”. online: <https://www.cbc.ca/news/politics/economic-aid-package-coronavirus-1.5501037>. 

[59] Service Canada. “Total CERB Benefits (delivered by Service Canada and Canada Revenue agency, combined) as of May 14, 2020”. online: <https://www.canada.ca/en/services/benefits/ei/claims-report.html>.

[60] Mount Sinai, supra note 35 at 34.