Maybe it Does Matter, After All

I recently highlighted Professor Andrew Green’s paper on the effect — or not! — of Supreme Court of Canada decisions in administrative law. I am happier to report that a new paper published in Canadian Public Administration by David Said comes to the conclusion that the Court’s decisions can be significant: “Navigating entangled terrain: The Supreme Court’s impact and the dismissal powers of human rights tribunals“.

Said analyzed grant rates by the Ontario Human Rights Tribunal under s. 45.1 of the provincial human rights code subsequent to the decisions in Figliola and Penner. His analysis “revealed a significant directional change in the grant rates of section 45.1 decisions following Figliola and Penner“, swinging one way after Figliola and back again after Penner:

The human rights justice system is a politically and legally complex area to navigate with legislative changes and judicial decisions shaping the administration and governance of human rights policies. This article provides a comprehensive examination of the complexities and intricacies of this system by measuring the impact of judicial rulings on the discretionary decision-making of the Ontario Human Rights Tribunal (HRTO). The impact of the Supreme Court of Canada’s relevant jurisprudence in Figliola and Penner on the HRTO’s discretionary powers to dismiss claims pursuant to section 45.1 of the Ontario Human Rights Code is measured by examining the outcomes of decisions made by the Tribunal. The article presents new empirical data on all early dismissal decisions (N = 1479) from 2008 to 2021 and demonstrates the effects of the Supreme Court’s rulings in Figliola and Penner. The findings in this article reveal that both Figliola and Penner had significant impacts on the Tribunal’s discretionary decision-making powers.

I find this particularly interesting because I went to great lengths to demonstrate that Figliola and Penner were compatible, at least in analytical terms. Evidently, I was wrong! On the plus side, at least judicial decisions can be said to have some impact on public administration. Jokes aside, well done to David Said on producing a very clever, original and convincing paper.

This content has been updated on September 15, 2023 at 11:39.