March Reports from the Law Reform Commission of Saskatchewan

The Law Reform Commission of Saskatchewan published three final reports in March 2012:

• Renewing The Privacy Act: "The recommendations made in this report are relatively simple, and few in number. However, the Commission believes that they may be sufficient to renew The Privacy Act, making it more attractive to potential litigants as well as more effective. To make the Act a part of the regime for protection of privacy that is evolving in the province, it may be as important to reaffirm it as to reform it. Revision of the legislation may amount to a relaunching of the tort of invasion of privacy in the province."
• Appeals from the Exercise of Statutory Powers of Decision: "Saskatchewan legislation often delegates authority to make decisions directly affecting the rights of individuals to boards, commissions and public officials. These statutory powers of decision are necessary tools for regulation of a wide range of public and private activities. They confer authority to grant licenses and permits, authorize disciplinary hearings by professional associations, grant permission to undertake regulated activities, resolve disputes with government agencies and enforce regulations (...) Most statutory powers of decision are subject to judicial review, an authority vested in the courts by common law rather than by statute. However, the scope of judicial review is uncertain. Most commentators on administrative law agree that judicial review is a complex and difficult branch of the law. Largely for this reason, legislators have supplemented judicial review with statutory rights to appeal from decisions made by tribunals and officials exercising statutory powers. Clearly stated appeal provisions can supersede judicial review, making resort to it unnecessary in most cases. The right of appeal from a decision must be expressly stated in the statute that creates the power of decision. This report is concerned with such rights of appeal (...) The Commission believes that administrative fairness requires that rights to appeal from statutory powers of decision should conform to consistent principles. The first goal of the Commission’s recommendations is principled consistency. The second is clarification of appeal rights. We believe that administrative law litigation can be simplified and reduced if these goals are implemented. A properly developed appeals system would make the difficulty and uncertainty of judicial review unnecessary in most cases. "
• Administrative Penalties: "Administrative penalties are a mechanism for enforcing compliance with regulatory legislation. They are monetary penalties assessed and imposed by a regulator without recourse to a court or independent administrative tribunal. In most cases, administrative penalties are imposed on individuals and businesses that have been licensed to undertake regulated activities. Advocates of administrative penalties suggest that it is neither necessary nor appropriate to make regulation of licensees a matter for the courts. The delay and cost of court proceedings are avoided, and decisions are made by officials acquainted with the purposes of the regulations in issue, rather than by judges who lack such specific expertise. If they are to be an acceptable part of the regulatory framework, administrative penalties must be applied fairly and impartially. Because they are imposed without a hearing in a court, and usually without any other formal hearing, other procedural protections must be in place to ensure that the process for determination of the administrative penalty is fair, and is seen to be fair. The Law Reform Commission undertook an examination of administrative penalties to identify ways in which fairness could be ensured. "