the Public Interest AND Administrative Bodies

Transcript:the Public Interest AND Administrative Bodies:
the Public Interest AND Administrative Bodies Freya Kristjanson Wardle Daley Bernstein Bieber LLP *Adapted from original presentation with Zeynep Onen, Law Society of Upper Canada, 2014 SOAR Conference Wardle Daley Bernstein Bieber LLP Outline What is the duty to act in the public interest? How does a regulator/adjudicator determine what is its specific focus concerning the public interest(s)? Are there best practices regarding including public interest(s) in regulatory or tribunal processes? How to resolve conflicting duties or elements of the public interest(s)? Wardle Daley Bernstein Bieber LLP The duty to act in the public interest The requirement to act in the public interest Delegated responsibility by the public to the regulator/ administrative decision-maker (“DM”) Delegated exercise of judgment and discretion Public trust in the license or other ‘brand’ Founded on a cultural consensus Wardle Daley Bernstein Bieber LLP “The Public Interest” Limited guidance from case law SCC in R. v. Morales:“As currently defined by the courts, the term “public interest” is incapable of framing the legal debate in any meaningful manner or structuring discretion in any way” SCC in R. v. Sparrow” “We find the ‘public interest’ justification to be so vague as to provide no meaningful guidance and so broad as to be unworkable as a test….” Wardle Daley Bernstein Bieber LLP Toronto v. Uber "While both sides took great pains to couch their arguments in terms of the public interest, this court is not the proper forum for that debate. Questions of what policy choices the City should make or how the regulatory environment ought to respond to mobile communications technology changes are political ones. Such questions are, of course, the stuff of democracy. While democracy can be a messy business, our system wisely recognizes that the perfect must sometimes yield to the practical at the risk of a wrong turn or two along the way. Courts determine disputes in the light of the output of the political process and with all of the respect for the differing opinions of the actors that our constitutional order demands." 126 OR (3rd), page 404, para 13 Wardle Daley Bernstein Bieber LLP Decisions in the Public Interest “Public Interest”– must be interpreted in light of the legislative history of particular provision, and the legislative and social context in which phrase is used Decision-makers must base their decisions on the facts of the case, must be consistent with terms and purpose of