Saturday, January 3, 2009

legal pragmatism; functional analysis

I have just read Richard Posner's How Judges Think.

It is an argument for pragmatic decision making with views to purpose and consequence in open cases not easily decided by resort to a clear governing rule. it disdains the view that abstractions often cited to mask the real decision.

Consider this dicta from the above S.C.C. decision:

..."[12] Finally, I do not accept the applicant's submission that the standard of review here is one of correctness simply because the issue involved is one which relates to the administrative decision-maker's jurisdiction. Indeed, that contention is simply not supportable given the jurisprudence from this Court which has unequivocally rejected that notion. In Via Rail Canada Inc. v. Cairns, [2004] F.C.J. No. 866, the Federal Court of Appeal wrote at paragraphs 33, 38, 39 and 46 as follows:

"I do not accept counsel's "jurisdictional" approach to determining the standard of review. Recent decisions of the Supreme Court of Canada make it clear that the standard of review applicable to decisions of an adjudicative administrative agency must always be determined on the basis of a pragmatic and functional analysis. Conceptual abstractions, such as "jurisdictional question", now play a much reduced role in determining the standard of review applicable to the impugned aspect of a tribunal's decision."

"However, identifying the relevant ground of review as jurisdictional error is not determinative of the standard of review that the court must apply when deciding whether the applicant has established that the tribunal has erred as alleged. Thus, when, as is the case here, a decision is challenged under paragraph 18.1(4)(a) on the ground that the Board "acted without ... , acted beyond ... or refused to exercise its jurisdiction", and the error alleged involves the interpretation of a provision of the Code, the Court must still use the pragmatic and functional analysis to determine the standard of review applicable to the interpretation of the provision in dispute.

If the pragmatic and functional analysis leads the Court to conclude that correctness is the standard applicable to reviewing the Board's interpretation of the provision of the Code in dispute, the Board will have exceeded its jurisdiction if the Court disagrees with its interpretation. Conversely, if the pragmatic and functional analysis points to patent unreasonableness as the applicable standard, the Board will only be found to have acted without or beyond, or failed to exercise its jurisdiction, if its interpretation is patently unreasonable."

"However, in my respectful view, the idea that the interpretation of the Board's remedial provisions is reviewable on a correctness standard solely because it is a jurisdictional question has been washed away by the torrent of standard of review jurisprudence emanating from the Supreme Court of Canada in the eight years since Royal Oak Mines was decided."

[13] The Court concluded as follows at paragraph 51:

"Since the standard of review applicable to the Board's conclusion that it may award a particular remedy must be determined on the basis of a pragmatic and functional analysis, I must now apply that analysis. Both the Supreme Court of Canada and this Court have regularly concluded that decisions of the Canada Industrial Relations Board (and of its predecessor, the Canada Labour Relations Board) turning on the interpretation of the Code are normally reviewable only for patent unreasonableness. It is therefore unnecessary for me to reinvent the wheel by conducting a comprehensive pragmatic and functional analysis."
(emphasis added)

[14] Accordingly, the standard of review to be applied here is that of patent unreasonableness which requires that the impugned decision be "so flawed that no amount of curial deference can justify letting it stand".[1] That simply does not apply to the decision of the Adjudicator in the case at bar. He plainly had jurisdiction to award costs pursuant to subsection 242(4) of the Canada Labour Code. In doing so, he exercised his discretion having regard to both his enabling legislation, specifically paragraph 242(4)(c), as well as the common law principles with respect to unjust dismissal in order to achieve the objective of the legislation; namely, to fairly and equitably compensate the respondent for his unjust dismissal. There is nothing to warrant the intervention of this Court with that decision"...

Itzik Basman

No comments:

Post a Comment