Collaboration at the Intersection of Administrative Law and Political Science

For a forthcoming contribution to an edited collection on interdisciplinary work in law and political science, I was asked to prepare a comment on a (very good) chapter by Dennis Baker and David Said. Here is Part II, on areas for potential collaboration between administrative lawyers and political scientists. See Part I here.

A recent exemplar of meshing administrative law and political science, and a roadmap for future fruitful collaboration, is David Said’s essay “Navigating entangled terrain: The Supreme Court’s impact and the dismissal powers of human rights tribunals”.[1]

Said analyzed grant rates by the Ontario Human Rights Tribunal under s. 45.1 of the provincial human rights code subsequent to the Supreme Court of Canada decisions in British Columbia (Workers’ Compensation Board) v. Figliola,[2] and Penner v. Niagara (Regional Police Services Board).[3] These two decisions took different views on the law of issue estoppel: the details are unimportant, but Said noticed that Figliola made a significant change to the previous law, with Penner reverting to the status quo ante just two years later. His analysis “revealed a significant directional change in the grant rates of section 45.1 decisions following Figliola and Penner”,[4] swinging one way after Figliola and back again after Penner. The abstract neatly summarizes his findings:

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.

This was a naturally occurring randomized control experiment: the law whipsawed one way but then whipsawed back again, leaving a two-year period in which adjudicators reasonably believed that the Supreme Court of Canada had effected a change in the law. This was fertile turf for academic study. What makes Said’s contribution significant is that he mixes legal and political science methods in the following way: he uses doctrinal legal analysis to identify an issue susceptible to empirical examination (“what was the effect of this Supreme Court of Canada decision?”); he uses quantitative methodology to resolve the issue (“the Supreme Court of Canada decision had a statistically significant effect on adjudicators on the front lines”); and he thereby generates insights into the effect of court decisions on public administration.

In this way, lawyers and political scientists can work together. Lawyers can identify issues that are salient to the legal community. Political scientists can use sophisticated methods to determine the influence of identifiable factors on the way the legal system works in practice. I would group the primary areas of potential effective collaboration under empirical, analytical and theoretical. I would also include a residual category of detailed knowledge, where political scientists’ grasp of how institutions function could help lawyers to develop more effective legal doctrine. For the most part, I am going to assume that researchers will be working in pairs or teams but it is also possible – and Said is an obvious example – that one researcher can work on their own on a narrow area of inquiry, where a research question can be carefully identified and neatly tailored research methods deployed to answer it.

Many areas of administrative law are ripe for empirical research:

• Administrative processes are often plagued by delays,[5] a phenomenon generally linked either to lack of funding[6] or lack of legal protections for the institutional independence of administrative decision-makers.[7] It may be, however, that the cause of administrative delay is something else entirely; knowing more would make legal scholarship and legal advocacy more effective. Should new legal protections for administrative tribunals be developed, or should efforts be directed at governments to improve funding?

• Some administrative law doctrines pre-suppose empirical evidence: for example, whether habeas corpus in provincial courts is an effective remedy in the context of federal carceral institutions,[8] or whether an individual should exhaust internal procedures before seeking judicial review.[9] Questions of adequacy and effectiveness invariably arise in these contexts but empirical evidence is conspicuous by its absence. If lawyers were making arguments and judges making decisions based on evidence rather than intuition the legal system should function more effectively.

• And there, is of course, the greatest question of all, which is the influence (or not) of judicial decisions on how public administration operates in practice – Said’s recent article is a notable contribution to that genre but most of the existing body of scholarship posits a relatively low level of influence.[10] It would be useful for legal scholars to know if directing their energies to improving what the courts do has any impact at all on what public administration does.

In each of these areas, a well-designed empirical study could shed significant light on current debates in the legal community.

Another strength of contemporary political science is its reliance on models. Here, again, there are significant opportunities for inter-disciplinary research using analytical methods:

• An evergreen question in public administration is how decision-makers strike the necessary balance between efficiency and fairness, a balance that might be different as between front-line decision-makers and their hierarchical superiors.[11] Stripped back to its bare essentials, the challenge is that following perfectly fair procedures would make it very difficult to get through a large volume of files. In principle, it should be possible to construct different ‘models’ of decision-maker, perhaps based on the incentives they have given their workload and professional aspirations, that would predict how the balance would be struck by different decision-makers:[12] this could, in turn, influence how public administration is structured by legislatures and executive officials, and may inform judicial consideration of cases arising at the intersection of efficiency and fairness.

• Similarly, models could be useful in determining the appropriate appointment and reappointment mechanisms for administrative tribunals. Here the tension is between the adjudicative independence of individual adjudicators and the interests of tribunal managers in ensuring efficient workflow.[13] Incentive-based models could sharpen legal thinking about judicially developed doctrines and institutional design (by legislatures and executives).

• Staying with administrative tribunals, there are many important institutional design questions that have received scant attention from legal scholars (perhaps because lawyers lack the required analytical tools). In particular, what is the best model for organizing a province’s administrative tribunals? Is Quebec’s ‘super-tribunal’[14] superior to the ‘clustering’ approach adopted in Ontario[15] or the ‘shared-services model’ being developed federally?[16] I am not aware of any literature addressing this important question of institutional choice.

• Lastly, Canadian regulators are – uniquely in the common law world – often subject to cabinet review. Even someone affected by a decision by a body like the Canadian Transportation Agency or the Canadian Radio-television and Telecommunications Commission, making context-heavy, fact-dependent decisions on complex matters of economic regulation, can petition the federal cabinet to have the decision overturned.[17] What impact does the possibility of cabinet review (and, while we are at it, the possibility that cabinet will issue binding directions[18]) have on the way independent regulators approach their tasks?

Across these difficult areas, analytical clarity would be helpful and political scientists would be well placed to bring some.

In terms of theoretical insights, there are many latent questions in administrative law that are under-explored, or not explored at all, by legal scholars. What is the role of administrative bodies in developing “policy”? How do we measure the “legitimacy” of systems of public administration and judicial review? Can the “power” of front-line decision-makers be quantified? These are questions that legal scholars have had little to say on but on which political scientists might be able to add to the toolbox.

And so to my residual category of detailed knowledge. An awful lot of administrative law is made without much knowledge of how systems work in practice. Here is a staccato list of questions which I have personally grappled with in my scholarship with little or no confidence that my theoretical insights reflect what happens in practice:

• Is the ability to appeal to or seek cabinet review an “appeal” or meaningful remedy?[19]
• Why do legislatures delegate authority and how do they decide how to structure a particular entity?[20]
• Why do legislatures choose to provide rights of appeal?[21]
• Is cabinet confidentiality and the effective functioning of government likely to be harmed by disclosure?[22]
• How does decision-making, split between ministers and civil servants, in government departments or at cabinet level actually work?[23]

Again, in each of these areas, a little practical knowledge would go a long way in ensuring that legal rules are effective, so that the ‘law in the books’ matches up with the ‘law in action’.

Finally, it is worth noting that there are existing organizations that can facilitate the interdisciplinary endeavours suggested here. Academic centres, like the University of Ottawa’s Centre on Governance or York’s Centre for Public Policy and Law, can bring academics from the legal field into conversation with political scientists; and the activities of bodies like the Society of Ontario Adjudicators and Regulators, that work at the intersection between law and politics, can provide useful real-world context for academic researchers.

Conclusion

O’Leary signed off his review of Professor Craig’s monograph with the following thought: “Twinned individuals or teams of people working to address rather tightly controlled projects will produce better work, as will individuals seeking to address narrower and sharper questions”.[24]

With this sentiment, I wholeheartedly agree. There is a significant gulf between the interests and methodological commitments of academic lawyers and political scientists. When one wanders onto the turf of the other camp, the likelihood is that the visitor will find they are a stranger in a strange land. But if members of both camps wander off together to study a particular issue, in such a way that speaks to their fellows in both camps, the disciplines of law and political science can be enriched. And if a partner cannot be found, the inter-disciplinary researcher would be best advised to keep their ambitions modest and learn as much as they can from the law or political science books to bring knowledge to bear on a narrow area of inquiry.

[1] (2023) 66 Canadian Public Administration 409.

[2] 2011 SCC 52, [2011] 3 SCR 422.

[3] 2013 SCC 19, [2013] 2 SCR 125.

[4] (2023) 66 Canadian Public Administration 409, at p. 422.

[5] Law Society of Saskatchewan v. Abrametz, 2022 SCC 29.

[6] See e.g. Tribunal Watch Ontario, “Statement of Concern about Tribunals Ontario” (14 May, 2020); Tribunal Watch Ontario, “The Human Rights Tribunal of Ontario: What Needs To Happen” (15 January 2023).

[7] See e.g. Ron Ellis, Unjust by Design (University of British Columbia Press, Vancouver, 2013).

[8] See e.g. Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, [2019] 2 SCR 467.

[9] See e.g. C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] 2 FCR 332

[10] See e.g. Andrew Green, “How Important are Ground-Breaking Cases in Administrative Law?” (2023) 73 University of Toronto Law Journal 426.

[11] See e.g. Denis Galligan, Due Process and Fair Procedures (Oxford University Press, Oxford, 1996); Paul Daly, Understanding Administrative Law in the Common Law World (Oxford University Press, Oxford, 2021), chapter 3.

[12] See e.g. Bernardo Zacka, When the State Meets the Street: Public Service and Moral Agency (Harvard University Press, Cambridge, 2017).

[13] Recent examples of judicial consideration of this tension (coming out on the side of the individual adjudicator and tribunal manager respectively) are Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518 and Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196, [2021] 1 FCR 271.

[14] Act respecting administrative justice, CQLR c J-3, Title II.

[15] Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, SO 2009, c 33, Sch 5, ss. 15-19.

[16] Administrative Tribunals Support Service of Canada Act, SC 2014, c 20, s 376, ss. 3-4.

[17] Telecommunications Act, SC 1993, c 38, s. 12; Canada Transportation Act, SC 1996, c 10, s. 40.

[18] See e.g. Telecommunications Act, SC 1993, c 38, s. 8; Canada Transportation Act, SC 1996, c 10, s. 43.

[19] See e.g. Canadian National Railway Company v. Scott, 2018 FCA 148.

[20] See e.g. Paul Daly, A Theory of Deference in Administrative Law: Basis, Application and Scope (Cambridge University Press, Cambridge, 2012), chapters 2 and 3.

[21] See e.g. Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653, at paras. 23-52.

[22] See e.g. Yan Campagnolo, Behind Closed Doors: The Law and Politics of Cabinet Secrecy (University of British Columbia Press, Vancouver, 2021).

[23] See e.g. The Queen v. Harrison, [1977] 1 SCR 238.

[24] “What Should Public Lawyers Do?” (1992) 12 Oxford Journal of Legal Studies 404, at p. 418.

This content has been updated on September 20, 2024 at 16:07.