Damages as a Remedy Against Administrative Authorities: An Area Needing Clarification

When are damages available against administrative authorities? There are few legal questions in Canada today that are more fraught with uncertainty, conflicting principles and unresolved questions. The policy considerations in this area are clear: the need for aggrieved individuals to have their rights vindicated and to modify the behaviour of substandard actors on the one hand (the “justice” concern) and, on the other hand, the necessity that administrative authorities be able to exercise their discretions and formulate policies in the public interest without excessive deterrence arising from the threat of legal proceedings (the “governance” concern). But where is the compromise between justice and governance? Unfortunately, this is an area where incoherence reigns — different causes of action use different tools to achieve a compromise, but the compromise is different for each cause of action. The uncertainty and policy confusion in this area is perhaps understandable because of the nature of this difficult area, but certain judicial approaches have helped to complicate matters: In attempting to achieve a compromise between justice and governance, courts, in defining the elements of various causes of action, create special rules. These special rules inject further complexity, uncertainty and difficulty: Those who place more emphasis on the governance concern import additional requirements into causes of action, such as proof of pursuit by the administrative authority of an improper purpose or the existence of bad faith or malice. But these elements are left undefined, perhaps because a definition is elusive, and the elasticity in definition encourages lawsuits, frustrating the objective of imposing tough requirements to limit lawsuits. Further, such requirements create new problems. Plaintiffs trying to prove “bad faith,” for example, are driven to use mechanisms in our civil procedure and access to information laws. These have their own difficult policy issues, such as the point at which administrative authorities are allowed to assert privileges and confidentiality interests in the public interest, or whether some of the traditional civil procedure mechanisms are even available against an administrative authority. Another way of accomplishing a reconciliation and balance of these two competing policy objectives and managing the “justice-governance” policy tension is to create special substantive defences. Many of these defences, however, have been constructed within the confines of a particular tort or the facts of a particular case, often a private law case, with the result that there now exists a web of special, sometimes competing defences that may be inapt for public law cases. Also it is unclear whether many of these defences, developed within and available for certain torts, are available for other torts. The civil procedure governing law suits can be most complex in this context. Jurisdictional provisions often require that judicial reviews take place in one forum and damages claims in another forum. This can create the real possibility of damages claims being foreclosed because an administrative decision has not been set aside and is final, or has already been challenged and upheld in a judicial review forum, in which case any challenge to its validity would be stopped by the doctrine against collateral attack. The traditional remedy for improper decision-making by administrative authorities has been certiorari. This remedy is usually seen, by courts and by litigants, to be sufficient. Whatever costs arise from decisions that are quashed are seen as costs that people must bear in a regulated society. However, there are cases where, by virtue of the conduct of the administrative authority, justice seems to require a remedial response. The distinction between decisions that are quashed because they are invalid, unacceptable or irrational but not worthy of a damages response, and those that are invalid, unacceptable or irrational but are worthy of a damages response is, by its very nature, somewhat elusive of description. The concept of absolute immunity from suit, in effect an assertion of supremacy of governance concerns over justice concerns, is itself rather unclear in scope, and casts a shadow over this area. Administrative authorities often adjudicate matters, and that adjudicative function, when exercised by superior court judges, is often protected with substantial or absolute immunity. However, administrative authorities are not superior court judges, their adjudications are sometimes not entirely legal in nature, and administrative authorities often have an operational role that is closely associated with whatever adjudicative role they have. What is the line between immunity or near-immunity from law suit, and accountability through law suit? There are a broad range of administrative authorities, from purely adjudicative, investigative and regulatory bodies such as labour relations boards and securities commissions, to state-employed officials such as building inspectors and police officers. The case law in this area has developed in reaction to the facts of a particular case, without considering the question of whether there might be a single, unifying principle of liability that would govern all administrative authorities. But does the broad range of administrative authorities mean that it is impossible to have a single, unifying principle of liability that would govern all administrative authorities? Is there a distinction that should be drawn between an administrative authority’s adjudicative functions, policy functions and operational functions? Do we really want to recognize such distinctions, thereby walking down the road of the difficult policy-operational distinction in liability, or go back to the frustrating task of defining and distinguishing “judicial/quasi-judicial decisions” from “administrative decisions”? Another problem in the area is that courts are often constrained by what torts are pleaded. Their analyses are directed to the traditional requirements of the torts that are pleaded. There is little scope to consider broad principles of liability of administrative authorities across different types of torts. This has allowed anomalies to develop between torts. There have been relatively few cases. It takes a certain number of cases, and resulting confusion, until the Supreme Court has an opportunity to develop a wider, overarching theory of liability against administrative authorities. We may be nearing that point now, with many recent cases that would appear to conflict with each other. This paper will look at the current law concerning when administrative authorities are liable in damages. It will do so by examining three categories of liability: abuse of public office, negligence liability and Charter damages. In each of these areas, we see courts striving to balance and reconcile the two competing policy objectives and manage the “justice-governance” policy tension. However, the mechanisms chosen by courts to do this are different depending on the area of liability. Basically different words and concepts are used to manage the same problem — often with different results — with the effect that, for no real policy reason, some causes of action are quite easy to assert, while others are more difficult to assert.

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