A THEORY OF INFORMATION IN THE CANADIAN LAW OF JUDICIAL REVIEW: RECORD RULES IN A POST-VAVILOV WORLD.

• Author: Mancini, Mark P.

INTRODUCTION

In the administrative state, agencies produce information when making decisions. Courts review agency decisions on the basis of the information that was before the agency when it made the decision. This raises a question: does the way agencies are designed to process information internally affect the way courts conduct judicial review of agency

decisions? (1) To answer this question, the processing (2) of information (3) in agencies should be an important concern, particularly because the record formed at the agency level through these processes is the record that the court uses on judicial review. (4)

A quintessential example of how this relationship plays out is the Tsleil-Waututh case at the Federal Court of Appeal, (5) and the associated debate over the record in that case which occurred in a preliminary motion brought before the hearing of the actual judicial review. (6) The case concerned the $7.4 billion Trans Mountain Expansion Project, which would expand the existing Trans Mountain pipeline, currently running from Edmonton, AB to Burnaby, BC. (7) The pipeline project is, understandably, hotly contested. It is especially contentious for Indigenous claimants, whose rights and interests are affected by the laying of new pipeline.

The process to approve pipelines in Canada is complex, and I can do no more than simplify it here for the purposes of this example. Under the then National Energy Board Act, "no company may operate an interprovincial or international pipeline in Canada unless the National Energy Board (NEB) [now the Canada Energy Regulator] has issued a certification of public convenience and necessity, and after the pipeline is built, has given leave to the company to open the pipeline." (8) Once a project proponent applies for a project like a pipeline expansion, it triggers a long environmental and Indigenous rights consultation process, as well as a public hearing process. (9) After this long process, the NEB makes a recommendation to the Cabinet as to whether the certificate of "public convenience and necessity" should be granted. (10) Then, the Cabinet makes a decision based on these recommendations, and may make a variety of different orders under the National Energy Board Act. Beyond these statutory requirements, there are also constitutional requirements that are engaged when dealing with Indigenous peoples. (11)

For the Trans Mountain Expansion Project, the NEB and federal government departments had to design a consultation process particular for the circumstances, consisting of a number of phases. (12) Many of these stages were centred around the important issue of information provision and coordination. First, the NEB and federal departments had to "[coordinate] research and analysis" on the Indigenous groups "whose rights and interests might be adversely impacted by the Project." (13) In addition to this information gathering process, the NEB process would engage the affected Indigenous groups, begin public hearings, and initiate communications between the government and the groups, with opportunities for the groups to make submissions. This information would form a record--an extensive one--that would also form the basis of the court's record, on which it reviews the relevant decisions.

Information--of both the legal and factual type--is central to conducting judicial review. And so, the parties in Tsleil-Waututh fought over the contents of the record. In the preliminary motion before the Federal Court of Appeal, Indigenous applicants claimed the record before the Cabinet was lacking in relevant information that would allow the Court to determine the basis on which the decision was made. Specifically, the applicants made the argument that they did not possess relevant information that was before the decision maker and that should have been produced before the Court. They also suggested that evidence that was not before the decision maker should be admitted to give context to their broader challenge against the pipeline on constitutional grounds. (14) The idea for the applicants was that, if the Court could not determine the basis on which the Cabinet decided the question--if the voluminous information from the Indigenous consultation process was inadequate--then the decision should be remitted for reconsideration.

The Court ultimately rejected this argument, but did note that there was a particular category of substantive error whereby a decision will be difficult to review under accepted methodologies of review:

But, at least in the situation where the evidentiary record of the administrative decision-maker is not before the reviewing court in any way whatsoever--i.e., there is not even a summary or hint of what was before the administrative decision-maker--or the record is completely lacking on an essential element, concerns about immunization of administrative decision-making can come to the fore. In this Court, administrative decision-makers whose decisions cannot be fairly evaluated because of a complete lack of anything in the record on an essential element--situations where in effect the administrative decision-maker says on an essential element, "Trust us, we got it right"--have seen their decisions quashed: see e.g., Leahy above at para 137; Kabul Farms Inc at paras 31-39; Public Performance of Musical Works 2003-2007 & Public Performance of Sounds Recordings 2003-2007, Re, 2006 FCA 337, 54 CPR (4th) 15 at para 17. The test would seem to be that if a particular evidentiary record--even if bolstered by permissible inferences and any evidentiary presumptions--disables the reviewing court from assessing reasonableness under an acceptable methodology (such as that contemplated in cases like Delios, above and Canada (Attorney General) v Boogaard, 2015 FCA 150, the decision must be quashed. (15) Despite these concerns about informational deficiencies, the Court ultimately concluded that even in the absence of cross-examination transcripts or other evidence, there was no informational problem because the information before the Court was sufficient in its view for it to conduct judicial review. (16)

This example demonstrates the importance of information in the task of judicial review--particularly, that the way information is processed within agencies can affect judicial review. At issue in Tsleil-Waututh, 2017 was a mass of information, coming from many sources, which the government needed to process. It was an open question as to what information would be relevant for the Court on judicial review. At some point, there was a determination made by the Court that, no matter the complexity of the consultation process and the sources of the information, it still had the ability to conduct judicial review. But what about cases where the opposite is true? How should courts deal with these informational deficiencies when they exist?

In this paper, I advance a new exception to Canada's record rules that deals with this informational deficiency problem. Specifically, the record rule I propose responds to the tendency in agencies with decentralized information processing--schemes like in the Tsleil-Waututh cases--to erroneously filter out information that might be relevant to a judicial review court. (17) This state of affairs has negative effects for the rule of law, under which courts are responsible for surveying the legal boundaries of administrative decision making. (18) The new exception would operate on the overall strength of the idea, confirmed recently in Vavilov, that courts on judicial review should not remit matters when the result of the remit is a foregone conclusion, (19) and that a "culture of justification" (20) in administrative decision making must not permit decision makers to justify decisions based on "internal records that were not available to [the affected individual]." (21) In other words, where information comes to light that should have been in the record but was not, and would potentially shift the result of the judicial review, the evidence should be admitted and weighed by the Court because the decision maker relied on the information but did not disclose it; to do otherwise might permit a decision maker to justify a decision based on evidence not disclosed, contrary to the culture of justification.

In light of these worries, the proposed exception would operate as follows: where the excluded evidence is (1) known to the parties, (2) the evidence should have made it into the record but did not, and (3) the evidence is potentially dispositive of the application for judicial review, then the evidence should be admissible, even if it did not form part of the original record. This is because, in these circumstances, the evidence may have come from a decentralized agency, and because the processing is decentralized, some evidence may be erroneously filtered out of the record. This is not the fault of the ultimate decision maker or otherwise; but it is a function of the sort of agency in which the decision took place. It leaves the court in a position where it cannot conduct review and where a decision maker's failure to justify a decision is sanctified by a court. This is an unacceptable situation in terms of the rule of law.

The paper will proceed in four parts. In Part I, I will briefly evaluate the current general record rules that exist in Canadian federal administrative law, (22) and set out the principles that govern the rules. (23) The general idea is that all evidence that was before the decision maker is admissible; but there is a potential that evidence that should have been before the decision maker was erroneously filtered out by decentralized subdelegates. In such cases, the usual remedy is to remit the matter to the decision maker.

In Part II, I outline the conditions under which the informational deficiencies that I am concerned with can arise. Specifically, using insights from organizational economics, I rely on the...