Topics in Administrative Law

This case has some interesting administrative law aspects to it. Administrative law is a bit of a tricky beast. It's something I did not even know the existence of, let alone understand, until taking administrative law in school.

Basically, it involves administrative agencies of the government and how they are enacted, structured and operated. They are set up by enabling statutes that specify the structure of the agency and the scope of their jurisdiction. They are often given jurisdiction to create binding policies and regulations. And since they are often created in order to delegate executive or judicial decision making to people who have greater expertise in the subject matter delegated to the agency, they are structured to be legally independent from direct government involvement.

Many of the legal cases that arise in the area of administrative law have to do with:

1) Ensuring that the agency only makes decisions within the scope of their delegated authority.

2) Ensuring decisions, especially quasi-judicial decision, are make in accordance with procedural fairness requirements under the Constitution and the common law.

3) Ensuring that the agency remains independent to the degree contemplated by the enabling statute.

So anyway... back to the case of the Chairwoman of the Canadian Nuclear Safety Commission (CNSC). She was fired by the feds after the shutdown of the Chalk River nuclear facility and the resulting worldwide shortage of medical isotopes.

The CNSC is an administrative agency. As such, it is legally independent from the government and is legally only able to act within the scope of it's delegated authority. In shutting down the facility, the Commission was only legally entitled to consider factors related to the safety of Canadians as a result of operating the facility. It would have been, in fact, unlawful for her to have even considered the resulting isotope shortage the shutdown would have resulted in. If she had considered the isotope shortage, the Commission's decision would have been unlawful and would have been struck down by the court on judicial review.

Secondly, the government is only entitled to give direction to the Commission through means authorized in the enabling statute. For instance, most enabling statues for administrative agencies contain a provision that allows the Governor-in-Council (the cabinet) to pass special directives to the agency within a given subject matter. For instance (and I haven't actually read the exact statue in this case), it may have a provision that says "The Governor-in-Council may pass directives to the Commission instructing them what factors to consider in deciding whether to bring nuclear facilities online." Then, the Governor-in-Council could pass a directive saying "The Commission must consider the availability of medical isotopes in deciding whether to bring nuclear facilities online." That would be a lawful order to the Commission.

In this case, the Minister of Natural Resources Gary Lunn just picked up the phone, called the Commission, and instructed them to bring the facility online. This is clearly an unlawful order.

So to recap: both the Minister of Health Tony Clement and Minister Lunn were completely negligent in dealing with the medical isotope shortage - which was 100% their own responsibility - while displaying complete ignorance of the legal functioning of the government and their roles as Ministers. Then, to shift blame, they fired the Chair of the Commission for failing to consider an unlawful consideration and failing to follow an unlawful order.

If I were advising the government on this case, I would urge them to settle as quickly as possible to avoid what will almost certainly be a harsh rebuke by the Courts and a reinstatement of the Chair of the Commission.

Ladies and gentlemen, your Conservative government in action.

UPDATED: I looked up the enabling statute: The Nuclear Safety and Control Act. Section 19 is the provision that deals with directives:

19. (1) The Governor in Council may, by order, issue to the Commission directives of general application on broad policy matters with respect to the objects of the Commission.

So pretty similar to what I thought it might say.

The scope of the Commission jurisdiction is defined in s. 9. Here is the applicable part of the provision:

9. The objects of the Commission are

(a) to regulate the development, production and use of nuclear energy and the production, possession and use of nuclear substances, prescribed equipment and prescribed information in order to

(i) prevent unreasonable risk, to the environment and to the health and safety of persons, associated with that development, production, possession or use,

It could certainly be argued that medical isotopes could be considered in "health and safety of persons, associated with..." But I think, given the broader purpose of the Commission, it would be extremely implausible that a Court would interpret the provision that broadly.