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Thursday Thinkpiece: Sossin & Lawrence on Advocacy Before a Department or an Administrative Agency

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Administrative Law in Practice: Principles and Advocacy

Title: Administrative Law in Practice: Principles and Advocacy
Authors: Lorne Sossin and Emily Lawrence
Foreword: The Honorable Justice Freya Kristjanson, Ontario Superior Court of Justice

ISBN: 978-1-77255-141-9
Publisher: Emond Publishing
Page Count: 320

Publication Date: June, 2018
Regular Price: $129 (print), $109 (e-book)

Excerpt: “Advocacy Before a Department or an Administrative Agency”, from Part II: Advocacy and Practice, Chapter 8: Advocacy Before Government Departments, Administrative Agencies, and Tribunals

II. Advocacy Before a Department or an Administrative Agency

A. Understanding the Decision-Making Structure
Many important decisions—such as issuing a licence, approving an income tax return, or authorizing coverage of a medical procedure under health insurance—are initially made by government departments or agencies called “regulators” rather than by tribunals. As discussed in Part I, the procedures that apply to decision-making by tribunals differ from those that apply to other administrative agencies or departments.

While tribunals are required to hold public hearings and follow quasi-judicial procedures with varying degrees of procedural fairness, other administrative agencies make their decisions in a less transparent or participatory manner. They often do not describe in detail the procedures that they will follow. They may obtain information from many sources and do not always reveal what information they have relied on, or what policies, guidelines, or criteria they have applied, or who the final decision-makers will be. Officials at several levels in the organization’s hierarchy—and even in several different departments—may play a role in reaching the final decision, and officials from other agencies also may be consulted. Often, there is no publicly available blueprint that sets out the responsibilities or functions of these various participants.

This decision-making structure can make the job of the advocate, or representative, a difficult one. A great deal of detective work, along with some guesswork, may be needed to find out who is involved in making decisions, and when and how decisions are made. If the decision-making process is not documented or not readily accessible to the public, an advocate shepherding an application through the bureaucracy must gather as much information as possible to determine the process in which recommendations and decisions will be made, who will make them, and what internal policies and criteria those officials will apply in arriving at their decisions.

B. Steps in the Advocacy Process
A representative advocating before an agency that is not a tribunal must take some or all of the following steps.

1. Determine What Laws and Policies Apply

As discussed in Part I, government decision-makers exercise powers granted by statute. The statute or regulation that delegates those powers generally sets out broad rules for decision-making, including on the nature and scope of the decision, the persons responsible for making the decision, the general procedures to be followed, and the criteria to be applied. The details of the process are often left to be determined by the decision-making body. They are found in written policies or guidelines, or in informal administrative practices.

2. Determine Stages in the Process

There are often stages in the decision-making process at which administrative agencies make recommendations or interim or tentative decisions. At some or all of these stages, there may be an opportunity for the advocate to provide input. Therefore, it is important to identify those stages and to find out the deadlines for making comments and suggestions or providing information.

3. Determine Who Makes the Decision or Recommendation at Each Stage

As noted above, several departments, agencies, or branches will often be consulted during the decision-making process. Each will bring to bear its own perspective and will want to ensure that its particular areas of concern are addressed. Consequently, the advocate will need to find out who is involved at each stage and make contact with the various participants.

4. Determine Concerns of the Department or Agency and Other Stakeholders

It is critical for an advocate to assess the particular interest of each department or agency that provides recommendations or input or makes interim decisions, and of each stakeholder who may have an interest in the outcome. By doing so, an advocate can better identify the probable positions of those participants. For example, certain issues related to an application may be raised internally by agency staff. Other stakeholders may raise additional concerns with politicians and agency officials. To illustrate, if a client is applying for a licence to open a casino and neighbours wish to block the application, the client’s advocate should try to find out the details of their concerns both from the neighbours themselves and from agency officials. Unlike in a hearing before a tribunal, where the parties are identified and the evidence of each party must usually be disclosed to the other parties, the concerns and views of officials and stakeholders will not necessarily be disclosed to other stakeholders in other kinds of decision-making processes.

5. Tailor Submissions

Submissions on the client’s behalf should focus specifically on the issues identified by the decision-makers and by any external opponents. The arguments should be presented within the framework that the agency will use in making the decision, including referring to any applicable policies, guidelines, and criteria. An effective advocate will explain why their client’s position conforms to the public policy rationale of the governing statute, emphasize the policies, guidelines, and criteria that support their client’s position, and address the concerns and arguments of any opponents.

Ideally, preparing and delivering submissions should be done within the framework of a communications strategy:

  • Decide whether it is best for you as a representative or your client to deliver the message you want the regulator to receive. The client is often the best person to tell his or her story. Moreover, while clients can deal directly with government officials and external stakeholders, lawyers and other representatives often must deal with the regulator’s counsel. This can add an unnecessary layer of communications, complications, and cost.
  • Figure out how to best deliver your message. Face-to-face meetings between clients and decision-makers are crucial. Get your (well-prepared) client before the decision-maker to tell his or her story.
  • Develop relationships with officials and legal counsel. Be cooperative, not adversarial. It is important to foster collegiality and preserve an ongoing relationship. Meet early with officials and their legal counsel to understand parameters of process. Keep up communications. Keep track of the status of the file and where it is heading. [1]

6. Obtain Access to Information

In arriving at a decision, a department or an agency other than a tribunal is not always required to disclose the information on which the decision will be based. Consequently, it is often necessary for stakeholders and their advocates to take steps to obtain this information.

The decision-makers and support staff involved in the process will usually maintain a file containing the application, internal and external comments on it, analysis of issues, expressions of concern, studies, and other related facts. While determining the stages of consultation and decision-making, an advocate should make inquiries to learn what types of information will be collected and produced by the ultimate decision-makers. It is important to collect as much of this information as possible, beginning at an early stage in the decision-making process, in order to be able to anticipate and respond to decision-makers’ concerns.

a. Formal and Informal Access Routes

The first task is finding out what is in the file maintained by the decision-makers and support staff. There are two routes to obtain this information. The formal route involves an application under freedom-of-information laws. The informal route involves direct contact with the agency itself—for example, keeping in touch with officials by telephone and email, arranging face-to-face meetings, writing letters, and attending any public meetings.

The federal government and each of the provinces and territories have legislation that requires government departments, agencies, tribunals, municipalities, and, in some cases, universities and hospitals to provide access to many of the records in their possession on request. The federal statute is called the Access to Information Act.[2] In Ontario, the Freedom of Information and Protection of Privacy Act [3] requires disclosure of provincial government information as well as records under the control of hospitals and universities, while the Municipal Freedom of Information and Protection of Privacy Act [4] covers municipalities and their agencies. Other provinces and many municipalities have similar legislation. Under these statutes, a person can make a formal request for documents. If access is denied, the applicant has a right to appeal the decision to the federal or provincial information commissioner or to the courts.

Obtaining records from agencies through formal access-to-information procedures can be costly, time consuming, and ultimately ineffective in obtaining all the information in the decision-makers’ file. The informal route—that is, speaking, emailing, or writing directly to individuals who may have the requested information at hand—is often faster and cheaper than a formal application to the agency’s freedom-of-information (FOI) coordinator, and is particularly useful for identifying what documents are available and which officials are likely to have possession of them. If the informal route does not produce the information that the advocate seeks, knowing what documents are likely to exist and where to find them will make it easier for the advocate to use the formal procedures under FOI laws.

If documents cannot be obtained through informal channels, a formal request can be made under FOI legislation. The request must be made in writing, and, in some jurisdictions, a fee must accompany the application. There is often a standard request form, which is usually available from the agency holding the documents. In Ontario, the form can also be obtained through the website of the Office of the Information and Privacy Commissioner.[5] However, in Ontario and most other jurisdictions, it is not necessary to use the form; instead, the request can simply be sent to the agency’s FOI coordinator.

The FOI coordinator is usually well informed about the types of records held by the agency, and their location and availability. Under Ontario’s FOI laws, the coordinator is required to assist applicants in clarifying their request if it is unclear. The agency must respond to a request within 30 days by advising that it will or will not provide the information requested. However, the agency is entitled to a 30-day extension if a large number of records are requested, if it is necessary to search through many records to find the documents requested, or if it is necessary to consult someone outside the agency before fulfilling the request. Responses to requests may be significantly delayed if the agency determines that the documents requested engage the interests of a third party, and seeks representations from the third party about their disclosure.

In most jurisdictions, an agency’s refusal to provide documents, its failure to decide whether or not to disclose documents within the specified time limit, its failure to conduct a thorough search for records, and the fee it charges for searching for and retrieving records can all be appealed to an agency independent of the government, known as a Information and Privacy Commissioner or Ombudsman or Review Officer, depending on the province. In Ontario, the Information and Privacy Commissioner has the authority to order the government to provide information that is not specifically exempt from disclosure.[6]

In the case of documents in the possession of federal government departments and agencies, under the Access to Information Act a person refused information may complain to the federal Information Commissioner. The commissioner cannot order the government to disclose information, but may recommend that it do so. If the government refuses to follow the recommendation, either the commissioner or the applicant may appeal to the Federal Court.

In addition to an application fee, a freedom-of-information agency may charge fees in amounts set out in a regulation for time spent:

  1. searching for documents and assessing if any part of them are exempt from disclosure in accordance with FOI legislation;
  2. preparing a document for release by blacking out portions that are exempt from disclosure; and
  3. other functions, such as photocopying.

These fees may be substantial or even prohibitive.

In some jurisdictions, the agency is required to provide the applicant with an estimate of fees before it begins to retrieve the records, and it may require payment of up to half of the estimated cost before it conducts the search or prepares the documents for release. The applicant can request that the fee be waived in some circumstances or, if it appears excessive, that it be reduced.

Asking for specific or targeted information can greatly reduce the costs associated with the formal FOI process.

Tips for an Effective Advocacy Strategy

  • Participate early and often in the agency’s decision-making process.
  • Target individuals lower in the decision-making chain and work your way up.
  • At all stages of the process, ask staff for information about issues identified by the agency, policy concerns, and options under consideration.
  • Propose solutions to issues and concerns that agency staff can build into the documentation that will be considered by the ultimate decision-makers.
  • Always be courteous.
  • Insist on your client’s rights, including the right to access information and the right to procedural fairness.

7. Obtain Reasons for the Decision

Once the department or agency has made its final decision, it is part of the advocate’s job to ensure that the client is informed of the reasons for the decision. As addressed in Chapter 4, Fairness: The Right to Be Heard, the department or agency will have either a statutory or a common law duty to give reasons.

Under section 7 of Alberta’s Administrative Procedures and Jurisdiction Act [7] (APJA), administrators must provide written reasons for their decisions. In contrast, under section 13 of Quebec’s Administrative Justice Act [8] (AJA), there is no requirement for departments or agencies other than tribunals to provide their reasons in writing. These agencies are, however, required to communicate their decisions “in clear and concise terms,” and, if they are making an unfavourable decision on an application for a licence or permit, they must give reasons. Ontario’s Statutory Powers Procedure Act [9](SPPA) and British Columbia’s Administrative Tribunals Act [10] (ATA) do not require departments and agencies other than tribunals to provide reasons.

8. Appeal Rights

In many cases, following an administrative decision, there is a statutory right to a reconsideration, an internal review or appeal, or appeal to the courts. In cases where no statutory appeal is provided, judicial review may be available. An advocate must promptly advise his or her client of any right to have a review of the decision or to appeal it, as well as the time limits for filing an appeal or a request for review. The time limits for appealing administrative decisions are often very short, and frequently the review officer or tribunal has no power to extend the deadline. The time limits may be set out in internal policies (for internal reviews or reconsiderations), the enabling legislation, umbrella legislation governing administrative decision-making, such as the SPPA or ATA, or the provincial or federal rules of civil procedure (for appeals).

Many statutory decision-makers routinely include a notice of appeal or review rights with their written decisions. However, the duty to provide notice of appeal mechanisms has not been recognized as a common law procedural fairness obligation.

1 Martin G Masse, Lang Michener LLP, “Advocacy Before Regulators: When the Tribunal Isn’t a Tribunal” (The 4th Annual National Forum, Administrative Law & Practice, Osgoode Hall Law School, 20-21 October 2008; paraphrased from a combination of Mr Masse’s PowerPoint slides and his oral presentation).
2 RSC 1985, c A-1.
3 RSO 1990, c F.31 [FIPPA].
4 RSO 1990, c M.56.
5 <http://www.ipc.on.ca>.
6 FIPPA, s 54.
7 RSA 2000, c A-3.
8 CQLR, c J-3.
9 RSO 1990, c S.22.
10 SBC 2004, c 45.

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