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Law and Public Policy

D14(b) - Courts and Government

Date: Jun 5 | Time: 03:45pm to 05:15pm | Location: SWING 310

Chair/Président/Présidente : Stéphanie Chouinard (Royal Military College)

Discussant/Commentateur/Commentatrice : Geoff Sigalet (Queen's University)

Government Immunity From Civil Liability: What Are the Common Elements of Core Public Policy Decisions?: Philip Osborne (Government of Newfoundland and Labrador), Alex Marland (Memorial University of Newfoundland)
Abstract: There are compelling reasons why public authorities should be immune from civil liability for the outcomes of core policy decisions. The Supreme Court of Canada has confirmed that the Crown has immunity in tort for core policy decisions but not for the operational implementation of those decisions. While the Court has stated that most government decisions that represent a course of action based on core policy will be readily identifiable, and that the development of a definitive test to distinguish a policy decision from an operational decision is likely unrealistic, there remains ambiguity. As a result, it is difficult for stakeholders to predict if a state action will be characterized as a policy or an operational decision. Drawing on jurisprudence and the literature, this paper takes a positivist and empirical approach to explore characteristics of core policy decisions. An objective of this research is to develop a notional public policy scoring rubric (i.e. a list of important common features) that can act as a theoretical framework to assist in distinguishing between core policy decisions and operational decisions.


Regulating SLAPPs: The Ontario Experiment with Judicial Oversight: Byron Sheldrick (University of Guelph)
Abstract: In 2015 the government of Ontario passed the Protection of Public Participation Act. This law, often referred to as an “anti-SLAPP” measure, is intended to protect public participation and free expression by limiting the scope of lawsuits that might adversely impact such expression. The adoption of such legislation is controversial, as it operates to limit fundamental principles of the rule of law, most notably the right to freely to go to court to seek redress for alleged grievances. While activist groups, NGOs, and lawyers’ groups, including the Ontario Bar Association, were supportive of the Bill, private sector business organizations and segments of the legal community were opposed. This paper examines the politics around the enactment of the Protection of Public Participation Act and provides aa preliminary assessment of the effectiveness of the legislation. In doing so, it develops a typology that situates SLAPP lawsuits within a “democratic threat” context. The implications of various types of litigation, based on the nature of the parties to the case and the nature of the issues raised by the litigation, is central to this analysis. The paper examines recent court cases that have interpreted and applied the legislation and compares its implementation to the experience of other jurisdictions in Canada. It argues that the legislation provides a very robust approach to SLAPPs which might be adopted elsewhere.


Crown Agencies and Courts: Examining Judicial Review of Administrative Determinations in Canadian Public Policy: David Said (University of Guelph)
Abstract: Studies of judicial behaviour in Canadian political science have usually focused on the constitutionality of legislation. This study addresses the under-explored area of judicial review of decisions made by administrative tribunals. Unlike the judicial review of the government’s legislative powers, where the courts may invalidate or strike down laws, the administrative context offers a different and often more complex set of avenues for judicial action. In many of these cases, the question is not simply constitutional or not, but rather the “reasonableness” of the decision made by the administrative tribunal. In other instances, however, the court may evaluate the decision on a “correctness” standard that is more exacting and thus more prone to the substitution of judicial preference in place of the tribunal’s decision. This study attempts to capture some of this more complex relationship between judicial and administrative institutions by advancing a new, broader theoretical framework. It argues that despite the complexity of administrative institutions, insights from a “new institutionalist” perspective can help determine the conditions under which reviewing judges will or will not defer to the decisions of administrative bodies. By doing so, the paper suggests new opportunities for political scientists to conduct further research in the area of administrative law and politics.