Introduction

I THE RULE OF LAW AND THE ADMINISTRATIVE STATE

- Admin law = regulating the implementation of laws by public officials to whom authority has

been granted by statute

- rise of the administrative state, the delivery of complex public programs, and the need for

flexibility in the performance of public tasks vs. accountability of public bodies

- Positivist tradition – Dicey and the rule of law:

Constitutionalized principle of rule of law as a basis for admin law = law over executive caprice

and law as the boundary of acceptable action; government and citizens alike are subject to the

general law of the land administered in the ordinary courts; no separate body of law

administered by admin tribunals (cf. Fr. ‘droit administrative’)

- Functionalist critique:

Rule of law model (i) hinders the effective implementation of public interest programs; and (ii) is

inappropriate given the inevitable questions of policy that admin questions raise

- Mullan’s middle ground:

Strive for accountability while still respecting the expertise of the administration by scrutinizing

decisions that seem contrary to the interests of the intended beneficiaries of the legislation and

intervening when the agency’s interpretation is wrong

II INTERACTION BETWEEN COURTS AND ADMINISTRATIVE AGENCIES

- Appeals:

Rights of appeal are purely the creation of statute: courts have no inherent appellate jurisdiction

over administrative agencies. If the court concludes that the agency erred, it may either refer

the matter back to the agency or reverse the decision and find in favour of the appellant

- Courts’ Inherent Judicial Review Jurisdiction:

JR ≠ appeal, ie review only determines whether the decision is legal, not whether, on its merits,

it was the ‘right’ decision to make. Even in the absence of statutory rights of appeal, courts

exercise a supervisory review jurisdiction over the institutions & officials w/ responsibility for

administering our public programs

- The courts exercise this supervisory jurisdiction through the common law prerogative writs: (i)

certiorari – to quash or set aside a decision; (ii) prohibition – to order a tribunal not to proceed

in a matter; (iii) mandamus – to order the performance of a public duty (compel

reconsideration); and (iv) habeas corpus – to determine the legality of a person’s detention,

whether by a private person or public official, w/ a view to ordering the release

- JR an exercise in interpretation

- JR can NOT be fully excluded by a ‘privative clause’ although it will be a strong indicator of

greater deference in the standard of review analysis

- Courts adopt the ‘pragmatic and functional analysis’ (now called the ‘standard of review

analysis’) to determine the intensity with which the courts should review AA

III CONSTITUTIONAL AND ADMINISTRATIVE LAW

- A constitution ‘similar in principle to that of the United Kingdom (BNA Act, Preamble) imported,

among other principles, that of parliamentary sovereignty

- Rule of law is now constitutionally entrenched (1982 Const, Preamble and one of the unwritten

constitutional principles identified in the Secession Reference), ie all governmental action –

including that of the legislature – must be lawful

- Judicial review seeks to address the tension between parliamentary supremacy and

foundational democratic principle on the one hand, and the rule of law on the other

- BNA 96 has been held to constitutionally entrench the inherent powers / core jurisdiction of the

courts

IV SUBSTANTIVE REVIEW (JURISDICTION)

- Jurisdiction to act is made up of 3 conditions:

(i) a determination of the scope of authority;

(ii) a determination of whether the conditions precedent to the exercise of that authority

are present (the ‘preliminary or collateral question’); AND

(iii) the permitted or mandatory actions an administrator must perform in the event that

determination (i) and (ii) are established.

- Conditions precedent (determination (ii)) can consist of a number of different factors: factual,

legal (express and implied), or discretionary

- The courts are more deferential when the is authority (ie (i)) is satisfied

- Includes errors of fact, of law, and the abuse of discretion

- Failure to satisfy an element = beyond jurisdiction = ultra vires (and VOID)

V PROCEDURAL FAIRNESS

- One of the implied conditions precedent to the existence of jurisdiction (condition II(ii) and the

following bullet above) if procedural fairness

- Ie a finding that a decision maker has not abided the principles of procedural fairness that

applied to him the specific matter in question, will result in any action taken as being ultra vires

(and VOID)

- A highly variable standard; dependent on the context of the particular statute and the facts of

the case

- Decisions of a purely legislative nature do NOT attract a duty of procedural fairness

Procedural fairness – threshold

I HISTORICAL OVERVIEW

Pre-Cooper, classification of the function being performed by the decision-maker was crucial, ie hearing

requirements were only imposed for the exercise of judicial authority

- Problem: the courts didn’t adopt a consistent and clear definition of what constituted a judicial

(as opposed to an administrative) function

II THE TRADITIONAL DOCTRINE

Cooper v. Board of Works for Wandsworth District: Statute required anyone intending to build a new

house to give notice to the Board b/f beginning construction or could be demolished. It tore down his

house after it claimed it had not received the notice

• CL provides a duty of fairness even in the absence of a statutory right; no man is to be deprived of

his property w/o his having an opportunity of being heard

• Court rejects the quasi-judicial/judicial vs admin distinction wrt the application of procedural

fairness.

III PROCEDURAL FAIRNESS: DIMENSIONS AND LIMITATIONS

Nicholson v. Haldimand-Norfolk Police Commissioners: Regulations under the Police Act provided all

police constables who served more than 18 months w/ the right to a hearing prior to any penalty being

imposed. Nicholson served for 15 mos. and was discharged w/o a chance to make submissions

• Affirmed the common law duty of fairness even where statutory procedural protections (if any) do

not apply and REJECTS the functional distinction,

Martineau v. Matsqui Inmate Board: prisoner was disciplined and alleged he was not given a hearing

• Court sets out a spectrum analysis ranging from

- Purely ministerial decisions (generally less procedural fairness is afforded);

- Legislative functions (some procedural fairness may be afforded);

- Judicial decision making (a lot of procedural fairness afforded)

• Between the judicial decisions and those which are discretionary and/or policy-oriented are various

decision-making processes w/ a flexible gradation of procedural fairness

MINISTERIAL ------------------------------------------------------------------- JUDICIAL

(broad, polycentric, “legislative”) (affect individual rights)

Only right to respond / be heard Full panoply of

procedural protections

Cardinal v. Director of Kent Institution: criminal charges laid against hostage-taking prisoners and they

were placed in segregation. A Segregation Review Board recommended they be released but the prison

Director rejected recommendation

• The denial of a right to a fair hearing must always render a decision invalid, ie it cannot be argued

that relief should be denied on the basis that no hearing could affect the outcome

Dunsmuir v New Brunswick: Dunsmuir was employed ‘at pleasure’ (appointed by Cabinet) as a legal

officer by the Dept of Justice and employment was regulated ito private law and the Civil Services Act.

He had a dual role: ‘at pleasure’ meant he could be dismissed without notice or reason but he was also a

civil servant and the CSA prescribed that his tenure was subject to the ordinary rules of contract.

After a rocky relationship he was sent a termination letter with reasonable notice. Dunsmuir took

the matter to adjudication ito the Public Service Labour Relations Act. The adjudicator held he was

entitled to proc fairness and his denial of a meeting with his employer before being dismissed was

unlawful

• Whether a duty of proc fairness exists depends on the facts in consideration of the substantive

rights of the parties set down by applicable law

• The distinction between public office-holders and public contract workers / ‘statutory employees’ is

irrelevant wrt the duty of fairness; whether a duty of proc fairness exists depends on the nature of

the relationship btw the parties(rejecting Knight v Indian Head School, that only public office

holder’s have recourse to CL fairness where the applicable law leaves him without any protection)

• In determining the nature of the relationship one must take into account legal context (relevant

statutes AND contracts [AND Charter]),

- Where fairness is prescribed those prescriptions must be given effect to, to the exclusion of the

CL public law duty of fairness

- CL duty of fairness will apply where (i) there is no contract or contract does not offer any

protection; or (ii) where contract/statute necessarily implies a duty of fairness (with the extent

determined by the wording and context)

- Where private obligations of fairness are not performed in good faith, private law remedies

apply (in employment context by increasing required notice)

• A public authority which dismisses an employee pursuant to a contract of employment should not

be subject to any additional public law duty of fairness

- If the Crown is acting as any other private actor would in hiring its employees, then it follows

that the dismissal of its employees should be viewed in the same way, ie contractually

II(1) Emergencies:

• Whether the action is justified without a hearing depends on an assessment of whether there was

genuinely a need for such action. It is likely that the court will pay considerable deference to the

authority’s judgement as to the urgency of the situation (Mullan)

II(2) Cabinet & Cabinet Appeals

Canada (Attorney General) v. Inuit Tapirisat of Canada: Bell Canada applied to the Telecoms

Commission for a rate increase, and ITS wanted the Commission require the better provision of service

in remote areas before it did so. The Commission denied the request and there was an appeal to

Cabinet. Issue concerned the procedural obligations of the Governor-in-Council int he context of

‘cabinet appeals’

• In determining whether a duty of procedural fairness applies to the executive, a court must construe

the statutory scheme as a whole to det what degree, if any, the legislator intended the duty to apply

- Where the Exec has been assigned a function where the subject matter is polycentric (multiple

& competing interests; not an individual concern), the duty of fairness will NOT be triggered.

II(3) Bylaws & Rule-Making

Homex Realty v. Wyoming (Village): Without giving notice to Homex, the municipality passed a bylaw

which prevented Homex specifically from conveying its subdivision lots.

• Where a bylaw is created, and has immediate effect and a specific target, courts will imply a right to

be heard unless there’s an express provision to the contrary

- [suggests that where a bylaw or subordinate legislation of a more general character is enacted

or promulgated, claims to procedural entitlements may be diminished or eliminated]

- [consistent with spectrum analysis: bylaw generally broad and polycentric but not when affects

individual rights]

• The presence of a compelling public interest does not alone abrogate or diminish a citizen’s right to

procedural protection

- The public interest is best served by affording the private interest full disclosure and a fair

opportunity to be heard

II(4) Policy Making

** Where the impact of a policy decision is diffuse, affecting a broad spectrum of the public in a

generally undifferentiated manner, NO procedural fairness (unless the legislation contains some

indication of public participation or obligations of participation)

Can. Association of Regulated Importers: Minister changed quota distribution system for the

importation of eggs which significantly affected historical importers without notice. A small group

claimed they should have been consulted

• The Minister’s decision was essentially a legislative or policy matter (to which the rules of natural

justice do not apply and w/ which the courts will not interfere)

• Confirmed in Wells v Newfoundland

II(5) Decisions Affecting Rights, Privileges, or Interests

Re Webb and Ontario Housing Corporation: The Webb fam applied for and were granted tenancy in

rent controlled apartments. The property managers recommended termination of their lease b/c of

problems caused by Webb’s kids. After notice, OHC officials approved, and her lease was terminated

• The threshold for proc fairness no longer depends on a distinction btw rights and interests, although

the content of the duty does

• Applicants for privileges are not entitled to proc fairness but once granted they have an interest

- Once Webb became a tenant and qualified for & received the benefit of reduced rent, she had

an interest not just a privilege and OHC was under a duty to act fairly [progressive decision,

holders of state assistance entitled to proc fairness]

Hutfield v. Board of Fort Saskatchewan Gen. Hospital: Dr Hutfield applied for hospital privileges which

was rejected by the Hospital Board. He applied again, unsuccessfully asking to make submissions to the

Board, and was rejected without reasons

• A distinction should NOT be drawn wrt proc fairness in the case of modifying or extinguishing

existing rights & interests and in the case of an application for a permission or consent not

previously enjoyed

• 3 additional elements support a duty to act fairly in the case of a prospective privilege: (i) where the

decision involves facts or mixed fact & opinion (eg investigation of credentials, training, suitability,

experience, and references); (ii) where a refusal casts a slur on the applicant’s reputation or financial

stability; (iii) where the general interests of the public are affected by the decision (eg refusal of

hospital privileges impairs his ability to provide the level of medical treatment that his license

entitles the public to assume he has)

Baker v Canada: the fact that a decision is administrative and affects the right, privileges, or interests of

an individual is sufficient to trigger the application of the duty of fairness

Moreau-Berube v New Brunsiwick: the duty to act fairly applies to all administrative bodies acting

under statutory authority

II(6) Non-Dispositive Decisions

• Decisions of preliminary nature will not in general trigger the duty to act fairly, whereas a decision

of a more final nature may

• Where there is rubber stamping (i.e. decisions of a preliminary nature lead to the final decision), it

can be argued that the decision is being made by the preliminary decision maker

Re Abel and Advisory Review Board: Advisory Review Board conducted annual reviews of those

psychiatric patients who had been discharged from criminal charges by special verdict of insanity and

submitted recommendations to the LG who would take the final decision. Lawyers for patients asked

for disclosure of patient files, reports given to the Board etc. (proc fairness)

• Re non-dispositive nature of the Board’s report

- The proximity b/n the preliminary decision maker or investigator and final decision maker is

critical in determining whether there is a duty of fairness

- Although the LG is not bound to act on the recommendations in the Board’s report, the pt.’s

only hope of release lies in a favourable recommendation by the Board – rubber stamping

Dairy Producers Coop v Saskatchewan (HRC): following a complaint of sexual harassment, an

inveistigating officer was appointed by the HRC to recommend whether a board of inquiry should be

appointed. Dairy Coop was refused particulars during his investigation.

• Where an interim decision-maker has no power to affect the rights of a person, but merely to make

a recommendation of eg, ‘probable cause’ (investigative powers), there is no requirement of proc

fairness; cf. determinative powers

- [perhaps influenced by fact that full particulars given at board]

II(7) Doctrine of Legitimate Expectation

• A legitimate expectation refers to an expectation of a hearing which may arise out of,

(i) an express statement or representation (i.e. a promise); and/or

(ii) an established practice

Reference re Canada Assistance Plan: a Fed welfare scheme authorized the federal government to

enter into agreements w/ provinces for sharing of costs of provincial social assistance & welfare

programs. When Fed introduced a bill that capped its financial contribution, Provs argued it was

unlawful b/c it violated a legitimate expectation

• The doctrine of LE can only produce more fairness

• No substantive relief and cannot fetter the decision following the representations or consultation

Furey v. Roman Catholic School Board: Board decided to close an elementary school under its

jurisdiction w/ notice even after it had some years earlier issued guidelines est a process to be followed

in the case of closings.

• Court of Appeal court was unable to find any evidence that the residents believed past practice

would be followed in this instance

- Must be a reasonable expectation for LE

Mount Sinai Hospital v. Quebec (Minister of Health & SS) (SCC, 2001): Hospital was planning on moving

to another location and Minister agreed that if the hospital was relocated, he would issue it a license for

the new premises. When it sought to have its license updated, it was refused

• LE looks to the conduct of a govt actor, not the nature of the applicant’s interest

• An applicant who relies on the doctrine of LE may show, but does not have to show, that he/she was

aware of such conduct, or that it was relied on w/ detrimental results

- The focus is on promoting regularity, predictability, and certainty in govt’s dealing w/ the public

- LE based on narrower requirements than estoppel and can operate as a cause of action

• Public law estoppels requires an appreciation of the legislative intent behind the power attempting

to be estopped

- Public interest may override establishing estoppels

- [doubtful you could estopp if it meant the ADM doing something illegal or ultra vires]

CUPE v. Ont. (Ministry of Labour): ON. hospitals and nursing homes had to resolve labour disputes

according to the Hospital Labour Disputes Arbitration Act; practice had usually been to appoint mutually

acceptable arbitrators for resolution of disputes during the life of the CA. Minister appointed 4 retired

judges, but they were not chosen by mutual agreement and unions not consulted. Unions complained

that appointees lacked expertise, tenure, experience and independence from government.

• A general ambiguous promise does not suffice to trigger the doctrine of LE

- There was no unequivocal set past practice – the promise to return to past practice was open to

interpretation – and the union and Minister had diff interpretations

- A promise must be clear and unambiguous to trigger the doctrine of LE

IV CONSTITUTIONAL DIMENSIONS

• If BoR or Charter rights are concerned (govt official is dealing with a pvt person) the ADM must

conform with the Const

- Charter applies to exec action taken pursuant to leg authority via s 32

- Section 32 means the charter applies to any statutory authority including regulations, bylaws,

orders, decisions, etc. (Douglas/Kwantlen Faculty Assoc v Douglas College; Slaight

Communications v Davidson; Eldridge v BC)

- Since Parliament cannot enact laws contra the Const, all AA must conform with the Charter

• Esp nb when dealing with ‘due process’ ito BoR s 1() and ‘fundamental justice’ ito Charter s 7 – both

of which incorporate elements of natural justice

• Once a claimant shows a Charter breach (eg deprivation of LLSP AND no FJ) the onus is on the govt

to prove justifiable ito s 1

IV(1) Issues of General Applicability

The Canadian Bill of Rights

• Bill of Rights is a federal statute whose applicability is confined to the federal domain; it has no

relevance to prov statutes or decision making under prov jurisdiction

• The BoR has quasi-constitutional status – it declares its primacy over all other legislation unless that

legislation contains an express provision such that it overrides the Bill of Rights

• Unlike the Charter, the Bill of Rights protects property rights

- Question is whether purely eco rights can be protected

The Charter of Rights and Freedoms

• Limited in its scope to governmental bodies or those performing governmental functions

• Canadian courts have established that the Charter does NOT apply to universities or hospitals;

McKinney and Stoffman, respectively

• Note: Bill of Rights would also not apply to hospitals and universities because they are under

provincial jurisdiction and the Bill of Rights is federal

IV(2) Bill of Rights & Charter as Sources of Procedural Protections

• Property

- Charter s 7 does NOT protect property

- s 1(a) of BoR DOES protects ‘life, liberty,security of the person, and enojoyment of property

- only the BoR can serve as a source of protection for procedural rights for the deprivation of

property by government

Authorson v Canada (Attorney General): Bill of Rights: A disabled veteren challanged a provision in the

fed Dept of Veteren Affairs Act that barred any claim to interest on moneis held by teh Dept obo

disabled veterens in clear and specific language. The Crown was collecting on his (and others’) behalf

while he was incompetent but when he became competent the Crown only paid over the principal. The

Crown was under a fiduciary duty to pay interest on veterns’ pension funds but it was extinguished by

the statute.

• A property claim

- Charter s 7 cannot help; does not protect property rights

- BoR s 1(a) means he is enttled to ‘due process of law’ if deprived of ‘enjoyment of property

rights’

• Due process in the context of a legislative body means the decision maker (Parliament) is bound

only by self-imposed procedural (manner and form) restraints on its enactments (ie 3 readings in

both houses and Royal assent)

- the courts will not impose additional requirements

- normal Parliamentary procedure is all that is reuqired for Palirament to take away indiv rights;

no fair hearing is required

• s 1(a) does NOT entitle a claimant to substantive due process, ie expropriation only with

compensation

Singh v. Canada (Minister of Employment & Immigration): maj = Charter / dissent = BoR: Minister,

acting on advice of the Refugee Status Advisory Committee, determined certain refugees were not CAT

‘convention refugees’. They were denied an appeal b/c the board determined on the material

submitted that there were no reasonable grounds for believing that they could establish their claims

They claimed that the statutory scheme infringed Charter s 7 (life, liberty,… fundamental justice) b/c

at no point in the process were they given a chance to be heard or to know the case against them

Majority (Wilson J):

• The Act precluded the CL duty of fairness

- [They could only succeed if Charter or Bill of Rights requires the court to override Parliament’s

decision to exclude procedural fairness]

- [The Charter allows you to attack the legislative scheme in place; the common law duty of

fairness only allows you to attack the decision-making process]

• The refugee scheme violated the appellant’s right under the Charter s 7

- Fundamental justice includes procedural fairness at a minimum [ie CL rights the minimum but

more can be obtained ito Charter]

- Hearings based on written submissions may be satisfactory in some but not all cases; an oral

hearing is necessary where there is a serious issue of credibility

Dissent (Beetz J):

• We should look to the Bill of Rights b/f looking to the Charter

- Apps were denied their right to a fair hearing in accordance w/ the principles of fundamental

justice under s 2(e) of the Bill of Rights

- The principles of fundamental justice will NOT impose an oral hearing in all cases – the most nb

factors in determining the procedural content of fundamental justice in a given case are (i) the

nature of the rights at issue; and (ii) the severity of the consequences to the individual

Chiarelli v Canada (Min of Jutice): C was a permanent resident about to be deported after being

convicted of a crime. His appeal was lost after investigations into him being an organized criminal by the

Security Intelligence Review Committee. The relevant Act provided that he could be present at the

Committee’s proceedings but not have access to or comment on any representations made

• In assessing whether a procedure accords with fundamental justice it may be necessary to balance

the competing interests of the sate and the individual

IV(3) Life, Liberty and Security of the Person

• Charter s 7 does is limited to ‘life, liberty, and security of the person’ (NOT property)

• only deprivations of these rights by ADMs will trigger proc fairness

Wilson v. British Columbia (Medical Services Commission): the Medical Services Commission

established a scheme for limiting the numbers of practicing doctors and restricting the geographic areas

of their practices in order to control total costs of health services and ensure the appropriate allocation

of doctors throughout the province

• ‘Liberty’ is NOT confined to mere bodily restraint – it may embrace individual freedom of movement,

including where to pursue one’s occupation, subject to reasonable and legitimate restrictions on

individuals imposed by the state (ie fundamental justice or demonstrably justified under s. 1)

• Here, the scheme was not justified by principles of fundamental justice b/c it was based on vague

and uncertain criteria, which combined w/ areas of uncontrolled discretion, leaves room for

arbitrary conduct

• ‘Liberty’ does not encompass a right to work, but it does include a right to follow one’s chosen

profession

New Brunswick (MOH & Comm. Services) v. G.(J.): Minister sought to extend a judicial order granting

the Minister custody of the appellant’s 3 kids for an additional 6 months

• ‘Security of the person’ protects both the psychological and physical integrity of the individual

- For admin action to restrict security of the person, the impugned state action must have a

serious and profound effect on the person’s psychological integrity

- The effects of the state interference must be assessed objectively w/ a view to their impact on

the psychological integrity of a person of reasonable sensibility

- This need not rise to the level of nervous shock or psychiatric illness; but must be greater than

ordinary stress or anxiety

Blencoe v. British Columbia (Human Rights Commission): while serving as Minister in BC, the Resp was

accused of sexual harassment; Premier removed him from Cabinet and dismissed him from caucus.

Hearings were scheduled before the BC Human Rights Tribunal over 30 mos. after the initial complaints

were filed and things descended into a media circus. Resp alleged that the unreasonable delay caused

serious prejudice to him and his family that amounted to an abuse of process and a denial of natural

justice

Majority (Bastarache J):

• The Charter does apply to all entities created by statutes

- Being autonomous or independent from government is not a relevant consideration.

Independent bodies may still be implementing a govt programme

• Section 7 encompasses 3 distinct interests

- Life: irrelevant here

- Liberty: much broader than physical restraint; can apply where state policies affect personal life

choices

- Security of the person: only stress that is (i) serious; and (ii) caused by the state can violate

security of the person.

This was not caused by the state; in administrative proceedings, it is a citizen making the

allegation and the state is resolving the complaint (cf. criminal proceedings). Protection of

reputation and freedom from stigma are values that must guide courts in their interpretation of

the Charter but are not serious enought to be freestanding rights under s. 7

• Court also concludes that there was no abuse of process (not a Charter infringement but significant

enough to entitle a stay)

- To amount to an abuse of process, the delay must be clearly unacceptable and have directly

caused a significant, actual prejudice of such magnitude that the public’s sense of decency and

fairness is affected.

Dissent (LeBel J.):

• Focused on the impact of the delay on B’s life, not on his hearing – career finished, family chased

across the country, clinically depressed, couldn’t coach kid’s soccer team

• Abusive administrative delay is wrong; it doesn’t matter if it wrecks your life or your hearing

Duty of fairness – content (choice of procedures)

• Once the threshold for the duty of fairness is crossed, we must consider the content of procedural

entitlements

• Notice? Access to evidence? An oral hearing? Counsel? Cross-examination? Reasons?

I STATUTORY POWERS PROCEDURE ACT

Statutory Procedures Act (Ont):

• 3(1) Application- Subject to s 3(2) the Act applies to a proceeding by a tribunal in the exercise of a

statutory power, where the tribunal is required by or under the Act or otherwise by law [ie common

law, another statute, Charter] to hold or to afford to the parties to the proceeding an opportunity

for a hearing before decision making.

- The Act applies where a tribunal is required by the Act, another act, common law, or the Charter

to afford someone procedural fairness; ie it applies where the threshold has been crossed

• 3(2) Where Act does NOT apply- The Act does not apply to a proceeding,

- Before the Assembly or any committee of the Assembly;

- In or before (i) the Court of Appeal; (ii) the Ontario Court (General Division); (iii) the Ontario

Court (Provincial Division); (iii) the Unified Family Court; (iv) the Small Claims Court; (v) a justice

of the peace

- To which the Rules of Civil Procedure apply;

- Before an arbitrator to which the Arbitrators Act or Labor Relations Act applies;

- At a coroner’s inquest;

- Of a commission appointed under the Public Inquiries Act;

- Of one or more persons required to make an investigation and to make a report, w/ or w/o

recommendations, where the report is for the info or advice of the person to whom it is made

and does not in any way legally bind or limit that person in any decision he or she may have

power to make; or

- Of a tribunal empowered to make regulations, rules or bylaws in so far as its power to make

regs., rules or bylaws is concerned

• For the most part, the SPPA is considered irrelevant b/c the common law has advanced beyond the

procedures afforded in the SPPA

• But it is important to consider whether the parties are entitled to an oral hearing under statute OR

at common law [and thus whether the SPPA applies] b/c,

(i) there is a codified list of the procedures owed to that party; and

(ii) the SPPA may offer a procedure that the common law does not

• Note: Under common law, an oral hearing will not always be required but may be, for example, in

cases of serious credibility (Singh)

II COMMON LAW

Baker v. Canada: Jamaican woman in Canada applied for a humanitarian and compassionate

consideration exemption under the Immigration Act. Immigration officer refused her application and

she was provided w/ notes made by a subordinate officer, which the deciding officer relied on.

• All of the circumstances must be considered in determining the content of the duty of fairness.

• Court provides a non-exhaustive list of factors to be considered in context of circs

- Underlying all these factors is the notion that the purpose of the participatory rights contained

w/in the duty of fairness is to ensure that admin decisions are made using a fair & open

procedure with an opportunity for those affected by the decision to put forward their views and

evidence and have them considered by the decision-maker

• Factors affecting the content of the duty of fairness

(i) The nature of the decision being made and the process followed in making it-

- Considerations = the process provided for, the function of the tribunal, the nature of the

decision making body, and the determinations that must be made to reach a decision.

- The more these resemble judicial decision making, the more likely it is that procedural

protections closer to the trial model will be required by the duty of fairness.

(ii) The nature of the statutory scheme & the terms of the statute pursuant to which the body

operates-

- Greater procedurla protections will be required when the statute does not make provision

for appeal procedures

(iii) The importance of the decision to those affected by it

- The greater the impact on the person(s) affected, the more stringent the procedural

protections that will be mandated

(iv) Any legitimate expectations-

- If the claimant has an LE that a procedure will be followed, this procedure is required by

the duty of fairness.

- If a claimaint has an LE of a certain reuslt, more extensive procedural rights may be

required [but NOT substantive relief]

(v) ADM’s choice of procedure (not determinative, but nb)-

- Especially relevant when the statute admits the ADM discretion or when it has an expertise

in determining what procedures are appropriate in the circumstances

Suresh v. Canada (Minister of Citizenship & Immigration): Suresh’s applicantion as a landed

immigration status was turned down by the Minister as he was considered a danger to the security of

Canada. The certificate was a prelude to an order of deportation and he might be tortured back in Sri

Lanka. S had the opportunity to make written submissions and file material w/ the minister but did not

have a copy of the immigration officer’s report (based on CSIS material), on which basis the certificate

was issued, and as a consequence, was not able to respond at all. He claimed he was entitled ot

procedural protections under Charter s 7

• Example of an applicatin of the Baker factors

(i) Nature of decision- Decision is of a serious nature = more fairness; discretion = less fairness

(ii) Nature of statutory scheme- where Act provides procedures = less need for proc safeguards;

where Act makes no provision = strong procedural safeguards

(iii) Importance of decision to individual affected- more important the more proc protections

required

(iv) Legitimate expectations- here Canada’s ratification of the CAT gave rise to an LE

(v) ADM’s choice of procedure- expertise of ADM or ADM admitted discreation = deference

• Barring extraordinary circumstances, deportation to torture will generally violate the principles of

fundamental justice protected by s. 7 of the Charter

• Finding

- In order to pass the threshold a refugee must show prima facie (evidentiary threshold) that

there is a real risk of torture before being entitled to the above requirements under s. 7

- The minimum content required by the duty of fairness to meet the the requirements of

fundamental justice under s. 7 of the Charter is (i) access to all relevant information the ADM

intends to rely on; (ii) at minimum a written submission; and (iii) reasons

Ahani v. Canada (Minister of Citizenship and Immigration): Ahani (citizen of Iran) entered Canada and

was granted Convention refugee status. He was informed of the minister’s intention to issue an opinion

(w/ the intention of deportation) and was given the chance to make submissions. He filed an application

for judicial review of the minister’s decision challenging the constitutionality of the Act. He claimed that

if sent back to Iran, he would likely face torture.

• Applying the framework from Suresh, the Court held that he failed to clear the evidentiary threshold

required to access s. 7 protection (a prima facie case)

• Unlike Suresh, A was fully informed of the allegations against him and was provided with the

opportunity to make written submissions.

III SPECIFIC CONTENT ISSUES

III(1) Notice (Pre-Hearing)

• Of the procedural rights a person entitled to a hearing may have, notice is the most important b/c

w/o notice, the other rights cannot be exercised effectively or at all (Charkaoui v Canada)

• Aspects of notice

(i) Form-

- Written notice is the norm unless context permits some other form (ie oral)

(ii) Manner of service-

- Personal service is the norm (subject to context)

- Means of giving notice generally specific by legislation and is usually some form of public

notice

- In the absence of legislative provision, courts will likely allow any public notice (eg

newspapers)

- Re Central Ontario Coalition and Ontario Hydro:Court held a public notice will be

inadequate if affected persons cannot reasonably comprehend from the notice that their

rights, interests, or privileges would be affected.

(iii) Timing-

- The notice must be given long enough before the date of the proposed hearing to give the

party enough time to decide whether to participate or to prepare (Krever Commission)

(iv) Contents-

- Notice must provide enough info about the issues to enable the party to respond (Krever

Commission)

Canada v. Krever Commission: Rising incidents of HIV and Hepatitis C from tainted blood prompted

federal & provincial ministers of health to convene an inquiry to examine the blood system holding

extensive hearings. On the final day of hearings, the Commission sent out confidential notices to blood

system participants (path labs etc.) that the Committee might reach specific conclusionsafter the inquiry

and that those conclusions might lead to findings of professional misconduct. Issue was whether the

Commissioner failed to provide adequate procedural protections or by the timing of the release of the

notices

• Timing:

- Timing of notices depends on the circumstances of the case (criminal, admin etc.)

- The more extensive and complex the evidence is, the more likely the notices will be closer to the

end of the inquiries

- The notice must be given long enough before the date of the proposed hearing to give the party

enough time to decide whether to participate or to prepare

• Content:

- Notice must provide enough info about the issues to enable the party to respond in a

meaningful way

III(2) Discovery (Pre-Hearing):

• Standard for pre-hearing discovery: Disclosure must be complete, subject only to privilege or

irrelevance (R. v. Stinchcombe); Rationale: One must know the case one must meet

• Jurisdiction to control discovery: Administrative bodies only have power to order/control discovery

to the extent that the power is expressly stated in their empowering statutes (Canadian Pacific

Airlines v. Canadian Air Line Pilots Assn)

Ont. (HR Comm.) v. Board of Inquiry (Northwestern Gen. Hosp.): Board of inquiry set up under Ontario

HR Code to hear complaint of racial discrimination made by 10 nurses. Board was ordered by the

Commission to provide the respondents w/ the statements and identities of the complainants and

witnesses interviewed. Board applied for judicial review of the order – arguing that the documents

were privileged (produced or obtained for litigation purposes)

• Court held that the combination of sections 8 and 12, SPPA amounts to a recognition of the

Stinchcombe principles in appropriate administrative contexts, ie complete subject only to privilege

or irrelevance

• Rationale for disclosure:

- Justice is better served when the element of surprise is eliminated and the parties are prepared

to address issues on the basis of complete information of the case to be met

- The fruits of the investigation are not the property of the Commission, but the property of the

public to be used to ensure justice is done

CIBA-Geigy v. Canada (Patented Medicine Prices Review Board): CIB was being reviewed by the Patent

Board for selling its drugs at an excessive price. Board’s chairman, under statutory authority, reviewed

report from Board staff on the pricing issue to decide whether a formal hearing was to be held. Under

the statute, CG could ask for disclosure of all documents relied on by Board staff in making the report

but Board refused.

• Distinguishes criminal/human rights context from economic regulatory context

- There are serious eco consquences here BUT no power to affect human rights in a way akin to

criminal proceedings

May v Ferndale Institution: the Correctional Service of Canada used a computer programme to

formulate a score for inmate determining their appropriate security level. May was transferred from a

minimum to medium-security institution (more restrictive of liberty). He applied to for habeas corpus to

go back to which end he also applied for a certiorari for the scoring matrix. Corrections and Conditional

Release Act required the ADM to give all the information to be considered in the taking of the decision a

reasonable period before it is taken

• The Stinchcombe principles do NOT apply in the administrative context.

• In the administrative context, the duty of procedural fairness generally requires that the ADM

discloses the information he or she relied upon; the requirement is that the individual must know

the case he has to meet

• Outside Stinchcombe this means the ADM must comply with statute and CL proc fairness

- The CCRA imposes onerous duties of disclosure on ADMs

- Considering the legislative scheme, the nature of the undisclosed information and the

importance of the decision for the appellants, there was a clear breach of the duty to disclose to

the level reuqired by the statute

III(3) Delay

Kodellas v Saskatchewan:

• Whether a delay is unreasonable for the purposes of s 7 depends on a number of factors

(i) Whether it it prima facie unreasonable

(ii) The reason for the delay having regard to the conduct of the complainants

(iii) The prejudice or impairment caused by the delay

(iv) Not numerus clausus

III(4) Oral Hearings (In-Hearing)

• Advantages to a full blown oral hearing:

- allows you to establish’ clients

credibility,

- allows you to tap into boards sympathy,

- examination,

- allows tribunal member to test outside

concerns and ask for clarification

• Disadvantages to an oral hearing:

- time and money,

- assessment of credibility depending on

the views and stereotypes held by

adjudicators,

- open yourself to cross-exam,

- emotional costs of putting a victim up

on the stand

• TEST on whether the circumstances warrant an oral hearing

- Issues of credibility ALWAYS warrant an oral hearing (Singh, Suresh)

- Claim to an oral hearing is also one that is situation-sensitive in the sense that its necessity

depends on the matters that are at issue in the proceedings instead of being a feature of all

exercises of relevant statutory power

Masters v. Ontario: Ont. agent general in NYC (appointed under premier’s prerogative power) faced

allegations of sexual harassment. An external investigation was requested by premier and found that M

had harassed 7 women. M took a financial settlement and resigned instead of being reassigned a

position. M then claimed there was a breach of natural justice b/c he was not given access to docs and

witnesses were interviewed without M or his counsel and said there should have been an oral hearing at

which he could interview the complainants

• Oral hearing: Court applies the factors from Baker

- Nature of decision was discretionary (prerog power) so less procedural protections (Martineau)

- Decision maker’s choice of procedures was investigatory not determinative (less procedural

protection) (Inuit Tapirisat)

• Refusal of access to documents rule:

- An investigator is not obligated to give every detail of what he receives but rather must only

ensure that applicant has disclosure of the substance of the accusation against him.

Khan v. University of Ottawa: K appealed a fail grade, which resulted in her failing the entire semester.

In the exam she had extra time so in ‘book 4’ she supplemented her answers in ‘book 1-3’. No bok 4

was found. A Committee met to decide on failures, and dismissed her without a hearing.

Majority (Laskin JA.):

• Oral hearing

- Where (i) credibility is an issue (only her word to say she wrote a 4th

book); and (ii) seriousness

of consequences (loss of an academic year by a failing grade can delay, if not end, the career for

which the student is studying)

• Content of oral hearing

- should incl an opportunity to appear, make oral reps, and correct/contradict circumstantial

evidence on which the decision would be based

Dissent (Finlayson JA.):

• Credibility was not an issue; consequences were not serious (there was no s 7 right at stake) and K

could complete her education so long as she did one extra semester, which was not serious (less

procedural fairness)

III(5) Open Hearings (In-Hearing)

SPPA, s 9: Presumption in favor of openness and creates specific considerations that are to form the

basis of any decision to proceed in camera in whole or in part.

• Decision to hold an in camera hearing is still left to the discretion of the tribunal

• Factors that tribunals consider:

- Privacy of the victims

- Ensuring that witnesses will be willing to testify

- National security or commercial competitiveness (if these are issues)

- Freedom of the press and other Charter rights (Pacific Press)

- Protecting the reputation of the accused (more common justification to keep in camera

proceedings in professional misconduct hearings)

- Alternatives to in camera hearings: publication bans, testifying in private, etc.

III(6) Right to Counsel (In-Hearing)

SPPA, s 10: permits representation by counsel or an agent for parties to proceedings governed by the

Act [recall exceptions]

• Even if SPPA does not apply, there is usually a right to counsel under (i) common law and (ii) the

statute governing the procedure.

Re Mens Clothing Manufacturers: labour context. For decades disputes in Toronto’s mens clothing

industry were resolved by arbitration w/o lawyers. After a particular grievance a TU wanted counsel

• No absolute right to counsel at CL

• Where a dispute is dependent on law (statute, arbitration agreement), whether counsel are allowed

is determined by the words of that law

• If a person (NP or JP) is entitled to be represented, they are entitled to be represented by a person

of their choosing

• Where JPs are involved, to deny the right to counsel would deny the right to select the agent of

choice, esp a particular class of persons widely retained for such purposes in other industries

• If one party is entitled to counsel, the other must be ipso facto

Re Parrish: ship captain summoned before an investigator of a statutory board after crashing a ship. He

appeared with two counsel but the investigator refused to admit them, even after allowing previous

members of the crew, and the Cpt refused to testify

• Right to counsel required where words of statute, or its practical application, indicate

(i) Individual is subpoenaed, required to attend, and testify under oath with a threat of penalty-

(ii) Absolute privacy is not assured and the attendance of others is permitted

(iii) Where reports are made public

(iv) Potential to be deprived of rights or livelihood

Howard v. Stony Mountain Institution: prison context. Hearing held to decide charges against a

prisoner under the Penitentiary Service Regs. which could result in a loss of earned remission days and

punishment in the form of solitary confinement

• Rationale = opportunity to adequately present one’s case

• At common law

- No absolute right to counsel – there is only a discretion on the part of the tribunal that can be

exercised to allow a prisoner to have a right to counsel.

• Charter, s 7

- Creates a non-absolute right to counsel

- TEST: Whether a person has right to counsel depends on a non-exhaustive list of factors

(i) Circumstances of the case: the need for reasonable speed in making their adjudication and

the need for fairness between the parties

(ii) Seriousness of the charge and of the potential penalty

(iii) Nature of the case: Is it a question of law (greater right to counsel) or fact?

(iv) Complexity of the case: Are there any procedural difficulties?

(v) Capacity of the party to understand the case and present his defence himself.

- NOT a matter of discretion (as under CL) but a matter of right where the opportunity to present

the case adequately calls for a right to counsel.

- But where the circumstances do not point to a breach of fundamental justice (eg change in

terms of sentence), the effect of the law may may still affect residual liberty (not liberty per se

but the conditions of liberty) and therefore require greater proc fiarness in the form of counsel

NB (MOH and Community Services) v. G.(J.): parent-child context. A policy under the Legal Aid Plan

(under the Legal Aid Act) prohibited the granting of legal aid certificates in custody-order renewal

proceedings. Issue was whether s 7 of the Charter required that a mother be provided with counsel to

resist an application by the Child Welfare authorities for renewal of an order placing her 3 children in

the custody of the state.

• A parent need not always be represented by counsel in order to ensure a fair custody hearing.

• 3 factors to determine if a party has a right to counsel:

(i) Seriousness of the interests at stake (directly proportional): obviously serious

(ii) Complexity & adversarial nature of the proceedings (directly proportional): procedure to resist

application included adducing evidence, cross-examining witnesses, expert testimony etc

(iii) Capacities of the individual (inversely proportional): intelligence, communication skills,

composure, familiarity w/ the legal system

III(7) Disclosure (In-Hearing)

• Definition: Disclosure to parties of info that the agency has about them (representations made and

evidence given)

• General Principle: A party is entitled to know what evidence and representations have been given

and is entitled to an adequate opportunity to respond (Kane v Board of Governors, Univ BC)

Access to Information Statutes

• Just b/c info falls under an exception from disclosure under freedom of info legislation does NOT

mean that its disclosure will also be denied in proceedings to which the rules of natural justice and

procedural fairness apply, eg Access to Information Act (fed)), ‘Act is without prejudice to other

laws governing access to information’

Crown or Executive privilege

• Common law Crown or Executive privilege was codified in the Canada Evidence Act

- Crown can object to disclosure on the grounds of:

(i) A specified public interest (s. 37(1)) although Court can overrule this if public interest in

disclosure outweighs the specified public interest (s. 37(2))

(ii) Disclosure would be injurious to IR/national defence or security (s. 38(1))

(iii) Information constitutes confidence of Queen’s Privy Council for Canada (s. 39(1))

- An application can be made to prevent disclosure (s. 37(3))

Other common law privileges

• Common law privileges not codified: solicitor-client privilege; adjudicative privilege

Access to Agency Information

• Four arguments for disclosure of agency info:

- People should know about what gov/others knows about them

- Facilitates party participation by enabling them to respond

- Increases acceptability and accountability

- Officials may be more prudent in the quality of their reports if they are forced to disclose

• Four situations where disclosure is an issue:

(i) Agency collected info about the individual from another person and the individual wants the

person’s identity

General rule: what is reasonable given the circumstances

(ii) Agency collected info on an individual and the individual wants that info

Re Napoli and Workers’ Compensation Board: N was injured at work and awarded 5% of total

disability suffered. He appealed his case to Board. It declined to disclose medical reports on his

file and denied his appeal.

- Whether disclosure is warranted at all depends on: (i) if credibility and issue (chance to

cross-examine); and (ii) where the consequences are serious

- The extent of disclosure depends on: (i) what is necessary to answer the case against him

(precise statement, where, when, and who); and (iii) policy rationales (sunlight likely to

ensure greater care in preparing reports)

Charkaoui v Canada: C was a permanent resident. The Minister of Public Safety issued a

certificate labelling him a security threat which could lead to lengthy detention and then

deporation ito the Immigration and Refugee Protection Act. The scheme permitted deportation

on the basis of confidential information that is not to be disclosed to the person named in the

certificate or anyone acting on the person’s behalf or in his interest. He claimed a s 7

infringement

- The overarching principle of fundamental justice that applies here is that before the state

can detain people for significant periods of time, it must accord them a fair judicial process:

New Brunswick (Minister of Health and Community Services) v. G. (J.)

- In the context of a s 7 deprivation the aspects of proc fairness that must ALL be satisfied are

(in other context which have to be satisfied will vary): (i) the right to a hearing before an

independent and impartial magistrate; (ii) a decision on the facts and the law; (iii) the right

to know the case put against one; and (iv) the right to answer that case.

(iii) Agency collected info about a business and other parties want disclosure (commercially sensitive

info)

Eg. Anti-Dumping Act

- S. 29(3) prevents the disclosure of info by the Anti-Dumping Tribunal of the business in

question to the public such that it will be available to competitors for use

- A hearing should still be held but evidence should be taken in camera (Magnasonic Canada

v. Anti-Dumping Tribunal)

- Confidential briefs, documents and exhibits are made available by the Tribunal only to

counsel who are appearing for parties represented at the hearings, and those counsel are

required to give an undertaking not to reveal confidential info to their clients (Anti-

Dumping Tribunal Study)

(iv) Agency may have material that it has created for itself and any party may want disclosure

Eg. Staff studies / reports

- Staff of ADMs are meant to conduct investigations and studies necessary for the ADM to

make fully informed decisions.

- General principle: most agencies take the position that staff reports are confidential and

will not disclose them; Exception: it will be used against the person in a proceeding that

will affect his rights in a substantial way

- Arguments for full staff document disclosure:

o Staff documents contain info that might assist parties in preparing their submissions

o Fairness and impartiality of the agency is compromised when participants find out

that agency has received staff studies in confidence

o Public is entitled to have much of the information – accountability

o Reports are likely more well thought out and more carefully based on accurate

information where disclosure

- Arguments for non-disclosure (not very persuasive):

o Ministerial responsibility would be undermined by disclosure of staff documents

o Disclosure would serve to politicize the public service

o Having to disclose everything would result in undue delays

o Staff will be less candid in its advice

- Recommendation by LRC:

o factual portions of staff documents should ALWAYS be open to public unless there is

some ground justifying non-disclosure (i.e. confidentiality);

o advice of agency staff should NEVER be disclosed

- Ultimately: we have to determine whether the individual has the opportunity to meet the

case against him or her

III(8) Official notice (In-Hearing)

• Definition: Official notice is where an ADM agency may, in making its decisions, use material that is

not introduced in evidence (i.e. extra-record evidence)

• Two types of facts:

(i) Adjudicative facts: a finding of fact concerning the immediate parties (i.e. who did what, where,

when, how, and w/ what motive or intent)

- Adjudicative facts are those to which the law is applied

- Must always be supported by evidence / no official notice permitted

(ii) Legislative facts: facts which help the ADM det the content of law or policy

- Ordinarily general in nature and do not concern immediate parties

- Will usually be det by legislation or case law but where could needs to develop law or policy,

it may, but need not necessarily, resort to legislative facts outside the record

• The reasons we allow official notice to be taken of extra-record facts is not to promote fairness but

to promote convenience

• Basic principle: Extra-record facts should be assumed whenever it is convenient to assume them

except convenience should always yield to the right of parties to have the opportunity to meet the

facts that influence their case

Factors in favour of official notice Factors in favour of disclosure

Legislative facts Adjudicative facts

Peripheral facts Critical facts

Certain facts Uncertain facts

Township of Innisfil v. Township of Vespra: Town of Barrie applied to annex 3 adjacent townships to

house a projected population. The amount of land was based on a formula, the use of which was

approved by the gov/t. A dispute arose and at the hearing a letter from the minister was introduced as

proving the required amount of land

• An ADM intending to use an independent, extra-curial decision of fact must give parties notice and

an opportunity to respond to it

Lawal v. Canada (Minister of Employment & Immigration): after the conclusion of oral hearings, an

immigration panel took official notice of a newspaper article. It was forwarded the applicant but the

panel did not reopen the hearing. Panel relied on s. 68(4), Immigration Act that allows the panel to take

notice of facts that may be judicially noticed & other generally recognized facts

• The material was not properly the domain of judicial notice, it was not generally recognized fact

• s. 68(4) (and arguably official notice in general) does not extend to adjudicative facts.

III(9) Admissibility of evidence (In-Hearing)

• RULE: Agencies are NOT governed by formal rules of evidence used by courts unless some statutory

provision requires them to (and such provisions are rare)

• An administrative body’s rules of evidence will be determined by,

(i) The body’s empowering legislation; or

(ii) The SPPA, ss. 15(1), (2) [basically includes everything but privileged info and info excluded by

other statute

• Exception: Rules of natural justice may require an agency to abide by formal rules of evidence to the

extent that it allows a party to make his case (Miller v Min of Housing; Universite du Quebec v

Larocque)

Armstrong v. RCMP (FCA, 1998): Armstrong was subject to a inquiry for unsuitability; RCMP handed in

written evi and A did not cross-examine anyone. After the hearings phase, a sergeant wrote a memo to

the Board and on that basis the commissioner confirmed her discharge. Issue was whether sergeant’s

memo constituted new facts, opinions or material which Armstrong was not given an opportunity to

dispute?

• A right to a hearing is triggered where there is an exercise of discretion on the basis of facts

regarding the applicant and where he has not had an opportunity of stating his position with respect

to those facts, which in the absence of refutation or explanation would lead to a negative decision.

III(10) Cross-examination (In-Hearing)

SPPA s. 10.1(b): A party to a proceeding may, at an oral or electronic hearing, conduct cross-

examinations of witnesses at the hearing reasonably required for a full and fair disclosure of all matters

relevant to the issues in the proceeding.

Township of Innisfil v. Township of Vespra: issue was whether the municipalities could cross examine of

the letter, ie that is was the correct determination

• Where the rights of a citizen are involved, SSPA, s 10.1(b) entitles him to a full hearing, ie incl cross

examination

• Only in the clearest of cases (ie clear statutory language) will the exec be able to give binding policy

directions on a tribunal

Armstrong v. RCMP: issue whether Armstrong denied natural justice as a result of not having the

opportunity to cross-examine the RCMP witness (the sergeant)?

• To waive a right a party must be clear as to the consequences of his or her act. By failing to ask for

the right to cross-examine, a party does not waive the right to cross-examine.

- The right to cross-examine is not absolute (Innisfil v. Vespra)

- [Where a statute is silent on the right to cross-examine, courts will generally be reluctant to

impose the right unless natural justice so requires]

• Factors militating towards a right to cross-examine include:

(i) where the evidence is contradictory or conflicting

(ii) where there is an attack on a party’s credibility

III(11) Limits of the Trial-Type Hearing

Thomas McGarity,

• Principle: Agencies should engage in formal trial-type hearings to enhance accuracy of factual

determinations

• Limiting factor: ‘transaction cost’ (i.e. reduced admin efficiency and increased expenses) may

outweigh any benefits derived from increased accuracy

• Factors for whether trial-type hearings are required:

- Value of the interest affected

- Degree to which inaccurate decision would affect those interests

- Likelihood that formal fact finding will reduce uncertainty on a certain issue

• Trial-type procedure is NOT useful for enhancing the accuracy of policy and scientific determinations

(it simply reveals the depth of disagreement)

Glen Robinson

• There is a general consensus that “policy” or “legislative facts” are not suitably considered in trial-

type procedures (e.g. cross-examination and testimony) b/c they are pure & uncontaminated by

questions, assumptions, opinions and biases

• This conclusion is INCORRECT

- Even legislative facts rest on general conclusions inferred from factual data and an evaluation of

probabilities

- Trial-type procedures can be valuable in testing forecasts and generalized conclusions

underlying policy decisions

• Advantages of subjecting policy decisions to trial-type procedures:

- allows one to probe inferences on which expert bases his interpretation

- exposes possible bias or lack of sound foundation

- puts burden on agency to explain the assumptions & foundations on which its policy rests

- prospect of having to justify policy decisions will result in more well thought out decisions

CC Johnston

• Recommendation: Where positions of the parties are clearly adversarial, (Telecoms Commission)

should adopt trial-type procedures (e.g. cross-exam)

- Rationale: With a trial-type procedure, the parties are not restrained from fully presenting their

case AND Commission is not deprived of evidence that is useful for decision-making.

• Disadvantages of using trial-type procedures:

- Too time-consuming

- Reduce public participation b/c too intimidated by formal rules

- Procedure will be ripe with technicalities – reduce interplay of ideas b/n agency & parties

III(12) Reasons (Post-Hearing)

Threshold of the Duty to Give Reasons

(i) Under statute:

• S. 16.1(3), SPPA: An interim decision or order need not be accompanied by reasons.

• S. 17(1), SPPA: A tribunal shall give its final decision and order, if any, in any proceeding in

writing and shall give reasons in writing therefore if requested by a party.

(ii) At common law:

• There is can be an obligation on tribunals to give reasons for decisions (Canada v Baker)

• Situations where the obligation will be triggered

- Where the decision is of significance to the individual

- Where there is a statutory right of appeal

- Where there is a right to judicial review

- The empowering statute otherwise provides for it

• Advantages of reasons:

- Get better decisions b/c decision maker will be under the obligation to set out all factors

and outline their reasoning (reduces arbitrariness)

- Boosts party confidence in decision

- Better for appeal process and reduces burden on reviewing body

- Ensures that the law is being applied correctly

- Allows precedent to be useful as guidance

• Disadvantages of reasons:

- Hurts efficiency

- Creates delay

- Adjudicators would not be candid

� Once we pass the threshold question of whether there is an obligation to provide reasons, we move

onto determine the content of the duty

Content of the Duty to Give Reasons

• Content of reasons:

- Reasons must reflect purposes served by a duty to give reasons, which include

o To give a party a chance to affect the decision maker; and

o To limit the risk of error by the tribunal

- Reasons should be sufficient to be able to scrutinize them on judicial review

- If a decision involves discretion, then reasons should demonstrate the power to so choose and

the factors relied on when exercising that discretion

- If a decision is based on certain facts, those facts and the evidence supporting them should be

highlighted in the reasons

- If credibility of a witness is an issue, then the tribunal should show why it did or did not think the

witness to be credible in its reasons

• Form of reasons: tribunals can use various types of explanations and allow them to be used as

reasons

• Problem: Canada v Baker implies that the ‘reasons’ requirement may be satisfied in an informal or

even ad hoc fashion, which results in the duty to give reasons becoming symbolic (Sossin)

- In other words, what can count as reasons (content) is too broad

- Result: the erosion of the duty of fairness in admin processes

- Example: Ticking the box “denied” on an application can constitute reasons through inference

(Liang v. Minister (Immigration)

• Solution: If the ‘reasons’ requirement is to be meaningful, those reasons must at a minimum shed

some light on the actual reasons of the decision-maker

- Case law now shows more substantive rather than symbolic application of the reasons

requirement

Suresh v. Canada (Minister of Citizenship and Immigration)

• Reasons must articulate and sustain the finding that individual will not be subject to torture

• Reasons must articulate why the individual is a danger to the security of Canada

• Reasons must come from the decision-maker (and not the subordinate official like in Baker)

Via Rail Canada Inc. v. National Transportation Agency: Wheelchair athletes traveled w/ VIA and

according to the tariff, people who needed to assist them traveled for free. The athletes encountered

significant obstacles wrt accessibility of VIA’s services. A complaint was made to National Transportation

Agency which determine that allowing an attendant to ride free did not relieve VIA from its

responsibility to ensure that passengers with disability can board and de-board its trains.

• RULE: Duty to give reasons is only fulfilled when the reasons provided are adequate

• Test for adequacy: Do the reasons provided reflect the purposes for which a duty to give reasons

was imposed?

Purposes are reflected when:

- The decision-maker sets out findings of fact and the evidence on which those findings are based.

- The reasons address the major issues.

- The reasoning process is set out & reflects the consideration of relevant factors.

Effect of Breach of the Duty to Give Reasons

• ALL REMEDIES ARE DISCRETIONARY

• Remedies NOT available IF:

(i) Defect in reasons is technical

(ii) Court finds no substantial wrong or miscarriage of justice

• Remedies available for breach of duty to give reasons:

1. Decision is set aside if:

(a) Decision maker misinterpreted the legislation or committed some other error of law

(b) Court concludes, on review, that the tribunal failed to consider relevant issues

o Exception: if the reasons show the tribunal considered the most important reasons

(inference drawn that it considered less important issues as well)

(c) The decision has both good and bad reasons and the reasons are cumulative

o Exception #1: If the bad reason is subsidiary to a good reason, the decision will

stand even though reasons are cumulative.

o Exception #2: If good and bad reasons are independent of, or alternative to, each

other, the decision may be upheld on the basis of valid reasons.

2. Order of production of reasons if there is a legal duty to give reasons and tribunal fails/refuses

to do so

3. Remit the decision back to tribunal if the legal propriety of the tribunal’s decision is in question

(most common) if

(a) the tribunal failed to consider a matter it was legally obligated to consider; or

(b) If the tribunal took into consideration some irrelevant factor

4. Reverse the decision

5. Injunction

6. Quash the decision (usually if no reasons are given at all)

Bias and lack of independence

I INTRODUCTION

• Basic Principle: Decision-makers should be unbiased

• Policy rationale:

- Nemo judex in sua causa, ie no one should be the judge in his own cause OR be in association

with any of the parties to the proceeding

• Baker v Canada: Nemo iudex applies to all persons who play a signifianct role in the making of the

decision, not just the final person

II BIAS: THE GENERAL TEST

• GENERAL TEST: well informed RP + thought matter through + reasonable apprehension of bias

(Committee for Justice and Liberty case)

- It does not matter if there is actual bias – there must only be a real likelihood of bias; how much

of a likelihood depends on the circs (Newfoundland Telephone)

- It is an ‘informed’ reasonable person – informed by the context of the statutory scheme and the

tribunal in question

- Factors considered:

(i) CL, statute in play, and Charter

(ii) Whether there is a direct interest (can be pecuniary or financial)

(iii) The function of the administrative body

(iv) Whether it is a policy decision (more tolerant of bias) or decision affecting an individual

interest (less tolerant of bias)

• NOTE: Canadian law follows a GENERAL TEST for bias (reasonable apprehension, distinction

between pecuniary and other interests rejected in Energy Probe case).

- Various grounds exist on which one could base a claim of a reasonable apprehension, ie showing

one of these recognised grounds will indicate the specific requirements for showing a

reasonable apprehension

II(1) Pecuniary and other material interests

Energy Probe v. Canada (Atomic Energy Control Board): AECB approved an operating license for a

nuclear power station for Ont. Hydro. Energy Probe objected b/c one AEC Board members was

president of a company that supplied cables to nuclear power plants.

Federal Court Trial Division (Reed J.)

• General rule: A pecuniary interest on the part of a decision maker will constitute bias where,

(i) The decision maker has a direct interest (i.e. direct r/ship);

- Exception: a contingent expectation of pecuniary gain is not a direct interest.

(ii) The pecuniary benefit will arise with certainty; AND

(iii) The interest is present at the date the decision was made

• Application to facts: Board member did not have a direct and certain relationship with Ont. Hydro at

the date of the decision and no certainty the member would sell additional cables to Ont. Hydro

Federal Court of Appeal (Marceau J.)

• Distinction between pecuniary interests and other interests REJECTED

• Test for bias depends on the nature of the tribunal:

- Adjudicative tribunal = less tolerance for bias (higher standard) = mere possibility of pecuniary

gain coming directly/indirectly from the decision results in disqualification

- Administrative tribunal (advisory/regulatory body) = more tolerance for bias (lower standard) =

pecuniary interest must be more immediate and certain and give rise to substantial grounds for

apprehending lack of objectivity

II(2) Antagonism during the hearing

• Based on the way in which the hearing conducted

• Manifests itself in:

(i) Denying procedural fairness (e.g. not being allowed to present one’s case)

(ii) Behaviour of decision-maker including

o Unreasonably aggressive questioning

o Unreasonably aggressive comments about testimony; Gooliah v. Canada

o An attitude toward the issue being decided

o Personal dislike of the claimant

o Lack of sympathy w/ legislative objectives; Baker

(iii) Behaviour of other parties who have a specific link to decision making process (e.g. lawyers, etc.)

• Balance to be struck –tribunals controlling their proceedings vs needless antagonism

II(3) Association between party and decision maker

• When looking at the association between the party and decision-maker, the following factors are

important:

(i) Nature and function of the Board (Marques)

o If the Board requires persons with expertise being appointed, it is expected that there will

be some level of prior association with the parties.

o Mere professional r/ship is not enough (need something more direct) in this context

(ii) Nature of the relationship between the parties

(iii) Amount of time lapsed between the proceeding and the prior association

• This ground of disqualification can also be characterized as a conflict of interest (Ont. Hydro v. Ont.

Energy Board)

II(4) Involvement of decision maker in earlier stage of process

• Where an agency is responsible not just for hearing cases but for investigating them and making

decisions to proceed against someone, those involved may not have overlapping functions

Quebec Inc. v. Quebec (Regie des permis d’alcool):

• Lawyers or staff involved in investigations should not be engaged in assisting those who adjudicate

the matter

Committee for Justice and Liberty v. National Energy Board: Application was made under the NEB Act

for construction of a natural gas pipeline. The chairman of the board at the time of the application had

been involved (as member of a Study Group) in discussions and planning for the applicant company.

• The usual situations of prior involvement are:

(i) Where the decision maker has already heard the matter b/f the tribunal, including rehearing

after judicial review or appeal

- Test for earlier involvement: Can the decision maker draw back and bring an impartial

mind to bear on the issue to be determined? (Township of Vespra v. Ontario)

- Must look at all the circumstances

(ii) Where the decision maker has been involved in the investigation and decision to proceed w/ the

matter being heard.

II(5) Attitudinal bias

Great Atlantic & Pacific Co. v. Ontario (HR Commission): employee P complains to HRC re sex

discrimination. HRC did intensive investigation and then created a committee to hear the complaint. B,

a lawyer with a background in sex discrimination, was appointed to the Committee. She had been party

to a similar complaint before the HRC prior to her appointment. D (employer) objected to her being on

the board claiming that she was an advocate for P’s position and that she herself was a complainant

before the HRC.

• There was a reasonable apprehension of bias b/c of her involvement in another complaint

• The court implied that b/c the area was novel, she may be inclined to judge the case in a certain way

in order to create a precedent for her own complaint

Imperial Oil v. QB (MOE): IO caused env. pollution so the Minister ordered it to prepare a

decontamination measure study at its own expense. IO argued bias b/c the Minister was involved in

prior decontamination work and was being sued by the present owners of the land.

• The contextual nature of the duty of impartiality adjusts to reflect the context of a ADM’s activities

and the nature of its functions:

(i) Nature of the functions to be performed: the Minister is performing a mainly political role

which involves his authority & duty to choose the best course of action in the public interest;

he is not performing an adjudicative function; on the contrary he is performing functions of

management.

(ii) Legislature’s intention: legislation defines Minister’s role as requiring him to give notice to the

person, receive and review representations and info submitted by that person and give

reasons to that person for his decision.

(iii) Nature of the personal interest: Any interest they may have had in recovering the costs of the

proceedings was too remote and attenuated to give rise to a reasonable apprehension of bias;

the only interests the Minister was representing were the public interest and the interest of

the state in protecting the env/t.

• Duty of impartiality applying to the Minister in this case is NOT equivalent to the impartiality

required of a judge or adjudicative admin ADM

II(6) Institutional bias:

Quebec Inc. v. Quebec (Regie des permis d’alcool): Registrar of Alcohol Permits revoked company’s

liquor permits for violations of statute. Company sought declaration that the statute was invalid on the

basis of s. 23 of the QB Charter of Rights, which required tribunal that was judicial or quasi-judicial to be

impartial.

• Factors to be considered:

(i) Authorization in statute allowing a degree of institutional characteristic

o Silence in legislation regarding authorization of institutional bias will raise reasonable

apprehension of bias

- RULE: If the legislation in question leaves open the possibility that the tribunal may not

act independently, it is necessary to consider how the tribunal operates in practice

o Are there any constitutional or quasi-constitutional protections that apply?

- If yes, even if there is express legislative authorization of bias, it must still not violate the

rights endowed in constitutional or quasi-constitutional documents

(ii) Circumstances of the case

o Involving one of the parties to the proceedings in the decision-making process privately

(during or after the hearing) will raise a reasonable apprehension of bias

(iii) Nature of the decision to be made

o Judicial or quasi judicial body = low threshold (higher standard)

o Admin tribunal = high threshold (low standard)

(iv) Duties of the admin agency other than adjudicating the dispute

o Plurality of function in a single admin agency is not enough to raise reasonable apprehension

of bias BUT excessive close relations among members in different stages of the process may

be

(v) The operational context as a whole

o The lack of separation of function by the same jurist will raise a reasonable apprehension of

bias.

o Functions of prosecutor and adjudicator cannot be exercised together.

Wewaykum Indian Band v. Canada: In 1985, the Campbell River Band brought legal proceedings against

another band and the Crown, claiming exclusive entitlement to reserves on Vancouver Island. Some

year earlier Binnie J. was Associate Deputy Minister of Justice at the DOJ – internal memoranda

indicated that Binnie had received info concerning the Campbell River Band’s claim and that he attended

a meeting where the claim was discussed. The SCC (Binnie J. writing for a unanimous Court) dismissed

the band’s claim. The band alleged that Binnie J.’s involvement gave rise to a reasonable apprehension

of bias

• The general rule is that the bias of one decision maker will taint the impartiality of other decision

makers (Baker) so: two stages

(i) Individual bias

(ii) Impute to other decision makers

• Individual judicial bias

- A judge’s impartiality is presumed; training etc.

- Test for judicial bias: well informed RP + thought matter through + fact that judge presiding

could est a reasonable apprehension of bias

- Application: no bias b/c his involvement was limited and supervisory, he was responsible for

thousands of files at the relevant time, and long time ago

• Institutional bias

- Exception to Baker-rule in the case of the SCC: no reasonable person informed of the decision-

making process of this Court could conclude that 8 other judges who heard the appeals were

biased or tainted; judges prepare independently, express indep opinions, decisions on who will

prepare draft reasons

III INDEPENDENCE

• Principle of judicial independence: complete liberty of individual judges to hear and decide cases

• Also depends on the Committee for Justice and Liberty GENERAL TEST: well informed RP + thought

matter through + reasonable apprehension of bias

• Independence has 2 aspects (R. v. Valente):

1. Institutional independence – the extent to which the governing statutory scheme (for a

particular tribunal) renders the tribunal free from external control or influence

2. Individual independence – as question of impartiality: the extent to which individual tribunal

members are free to adjudicate w/o undue influence

• Independence is on spectrum: the more adjudicative, the more independence that is warranted;

the more policy driven, the less independence involved

• If the relevant statute clearly authorizes the existence of a statutory scheme that does not meet

appropriate standards of independence for the tribunal in question, there will be no remedy

available unless those affected can rely on a constitutional or quasi-constitutional argument; Ocean

Port v. BC

R. v. Valente: Criteria for INSTITUTIONAL Judicial Independence

(i) security of tenure;

� requires a tenure that is secure against discretionary or arbitrary interference by the

executive or other appointing authority

(ii) financial security; and

� requires that the right to salary & pension be established in law and not be subject to

arbitrary interference by the executive in a manner that could affect judicial indep

� it is preferential that judicial salaries be (i) fixed by the legislature rather than by the

executive; and (ii) made a charge on the Consolidated Revenue Fund rather than requiring

annual appropriation

� BUT neither of these two factors should be regarded as essential

(iii) Administrative indep wrt decisions bearing directly on the exercise of its judicial functions

� requires that the tribunal be able to govern its own administration (eg which judges hear

which cases)

NOTE: The general rule (as seen in Baker) is that the bias of one decision maker will taint the impartiality

of other decision makers. However, Wewaykum carves out an exception in the case of the Supreme

Court of Canada.

Canadian Pacific Ltd. v. Matsqui Indian Band: The Indian Act allowed bands to levy tax on people using

the reserve. A tribunal was established for reviewing these levies. Members of the tribunal could but

need not be paid and had no tenure in office. Band members were eligible appointees. CP argued that

tribunal members lacked independence (i.e. there was a reasonable apprehension of bias) b/c the

tribunal members (may not be paid, no security of tenure, appointed by Band Chiefs

• test for institutional indep: whether a reasonable & right-mind person, viewing the whole

procedure, would have a reasonable apprehension of bias on the basis that tribunal members are

not independent

• contextual

- Higher level of independence & more strict application of Valente criteria when tribunal (i)

judicial in nature and (ii) affects security of person

- Lower level of independence & more flexible application of Valente criteria when (i) polycentric

in nature and (ii) relating to a property right

• NOT ALL 3 Valente principles are required in order to satisfy the test for independence.

Quebec Inc. v. Quebec (Regie des permis d’alcool): a statute may authorize institutional bias, eg the

implementation of govt policy. If it is silent on the point, it is necessary to consider how the tribunal

operates in practice

Bell Canada v. CTEA: Bell employees filed complaint at HRC against Bell. Bell brought a motion arguing

the HRC was not indep because (i) its guidelines gave rules wrt ‘a class of cases’ fettered it; and (ii) the

tribunal chair power to members’ terms in ongoing inquiries wasn’t enough security of tenure

• There should be a high degree of independence; the tribunal exercises adjudicative function but

also implements the policy of govt (ie doesn’t have to be impartial in that respect)

• However, neither of the 2 powers challenged by Bell compromises the procedural fairness of the

tribunal.

- Guidelines are law and being fettered by law cannot amount to partiality

- Extension of tenure is to finish current inquiries and no RP would see this a way for the

Chairman to pressure Committee members

CUPE v. Ont. (Ministry of Labour): ON. hospitals and nursing homes had to resolve labour disputes

according to the Hospital Labour Disputes Arbitration Act; practice had usually been to appoint mutually

acceptable arbitrators for resolution of disputes during the life of the CA. Minister appointed 4 retired

judges, but they were not chosen by mutual agreement and unions not consulted. Unions complained

that appointees lacked expertise, tenure, experience and independence from government.

• The tribunal DOES NOT lack independence b/c:

� Labour arbitration is not characterized by financial security or security of tenure beyond the life

of the arbitration

o Chosen to be so by legislature

o Historically always done this way – deference to this

� Independence of arbitrators is guaranteed by training, experience and mutual acceptability

o Since legislation requires appointment of people w/ the above characteristics, the proper

exercise of the appointment process would satisfy concerns about institutional

independence

o Retired judges as a class have no greater interest than other citizens in arbitration

outcomes and there is no reason to think they would exercise their power impartially in

order to secure further appointments

• The tribunal members DO NOT lack impartiality (no reasonable apprehension of bias) so there

cannot be institutional bias

Institutional decision-making

I DELEGATION

• Definition: Delegation means conferring of an authority to do things which otherwise that person

would have to do himself.

- Delegation typical of large admin organizations often employing hundreds of staff, making

thousands of decisions, and having to work in teams to deal with a range or complex matters

• RULE: delegates non potest delegare – a delegate may not re-delegate.

• Exceptions to the rule:

(i) A tribunal or agency may still obtain opinions from someone else (i.e. fact finding may be

delegated) provided they comply w/ the duty of fairness;

(ii) If the body delegating the power exercises a substantial degree of control over the discretion

that it can be said to direct its own mind to the matter, there is no delegation in law

(iii) Delegation can be explicitly or implicitly permitted by the statute conferring the discretion

(language, purpose, etc.) – eg ‘Minister’s sole discretion” implies no delegation

• Balance: understand the administrative context of the decision and fashion the content of the duty

of fairness so as to retin its essential values and insights without depriving the agency of the

institutional means available to it to discharge its statutory mandate efficiently and effectively

Vine v National Dock Labour Board: NDL Board was responsible for allocating dock labourers to

stevedoring companies and had the express power to delegate its functions to local dock boards. Vine

did not show up to work, the company complained, and the local board dismissed him.

• Whether an ADM may delegate depends on (i) the nature of the duty and (ii) the character /

constitution of the ADM

- Nature of the duty was judicial (generally no delegation) and the constitution of the NDL Board

was to weigh fairly the interests of both employers and employed

- Only applies to discretionary decisions

II DECIDING WITHOUT HEARING (CONSULTATION AMONGST MEMBERS)

• RULE: Only those members of an agency who hear a particular case may decide it.

• Rationale: A person is denied an adequate opportunity to influence the decision if unable to address

directly those who make or participate in making it.

II(1) Deciding without hearing:

• Only members who hear a case may decide it

Jeffs v New Zealand Dairy Production Board: the NZDP Board had power to establish cream factory

monopolies over certain dairy producing districts after ‘hearing’ the relevant parties. On a demarcation

of territory issue it set up a Committee to hear the matter. The Board accepted the Committee’s

recommendations without alteration and without hearing any evidence of the hearings. Farmers

complained

• Appointing another to ‘investigate’ (as opposed to ‘deciding’) is not a problem

• However, the automatic acceptance of the recommendation without a hearing - whether written or

oral (indicating they couldn’t have directed their own minds to the evidence) – is not

II(2) Consultations among ADM members:

• Questions whether and if so, to what extent, fairness precludes the members of an agency who

heard the case from discussing it with other members of the agency after the hearing has ended but

before they have rendered the decision

International Woodworkers of America v. Consolidated-Bathurst Packaging: After a hearing, the

Labour Relations Board (composed of 3 members) discussed the case w/ other members of the board at

a “full-board” meeting and then gave its decision. The discussions were only of policy and not of facts

related to the case. CB demanded reconsideration on the basis that the “full board” discussion

breached the duty of procedural fairness

• Content of procedural fairness in this case:

- Contextual approach: The advantages of holding full board meetings must be weighed against

the disadvantages involved in holding discussion in the absence of the parties.

- Advantages: (i) experience of all the members; (ii) fosters coherence in decision making

- Disadvs: (i) may jeopardize the opportunity to respond; (ii) may compromise independence if

meetings held to reach consensus

• Independence does NOT imply an absence of influence but rather the freedom to decide according

to one’s own conscience and opinions (no compulsion)

• Safeguards such as no votes, no minutes, no mandatory attendance, and no recordings will go to

proving independence & impartiality.

• No new argument or policy should be proposed during such consultations and discussions should be

limited to matters of policy and not issues of fact – otherwise the parties are entitled to respond w/

arguments.

Tremblay v. Quebec: T was on social aid and sought reimbursed for dressing and bandages. The Min of

Labour and Soc Security refused so she appealed to the Commission. A two-member panel drafted a

decision in the T’s favor but the President of the Commission reviewed the draft, expressed

disagreement and called for consultation. At the consultation, the majority of members supported the

president’s position and one of the two panel members changed their decision. Due to a tie, the Act

stipulated that the President or VP acts as the tie-breaker and the decision went against T

• The general rule of deliberative secrecy is trumped where the litigant can show valid reason for

believing a breach of procedural fairness has occurred

• Various mechanisms prescribed in the consultation may exert undue pressure on decision makers

and ∴ did not satisfy the requirement of proc fairness:

- Automated process – meetings were held without the decision maker’s request

- Meeting includes votes to arrive at consensus (not just recommendation)

- Minutes taken

- President of the Commission expressed his opinion to the ADMs, inviting them to reconsider

there decision

• The President’s involvement was not just to offer an opinion – he called meetings b/c of his

disagreement and acted as the tie-breaker.

Ellis-Don Ltd. v. Ontario Labour Relations Board: A TU filed a grievance at the Ont LRB that the Ellis Don

subcontracted work to a non-Union subcontractor contrary to a collective agreement. A three-member

panel of the Board heard the grievance. The panel’s first draft decision would have dismissed the

grievance, however, after a full board meeting a majority of the panel upheld the grievance. ED alleged

that the change between the draft and the final decision was of a factual nature as opposed to a legal or

policy change, and claimed that there was a breach of natural justice. This was difficult to prove as the

tribunal was withholding information under the principle of deliberative secrecy.

• Case reveals a tension b/n the fairness of the process & the principle of deliberative secrecy

• Court concludes that here the principle of deliberative secrecy trumps fairness of process:

- Strong presumption in favor of regularity of the admin process

- Presumption will be rebutted if there has been a change of facts founding the reasons for the

decision (a change limited to questions of law & policy will NOT rebut presumption)

- Delib secrecy nb for independence and consistency

• Institutional consultation ensures consistency BUT will infringe fairness if

(i) the consultation proceeding is imposed by a superior level authority within the administrative

hierarchy;

(ii) the consultation is not limited to questions of policy and law; and

(iii) even on questions of law and policy, the decision‑makers must remain free to make their own

decision.

• Any risk of breaching fairness in consultation can be addressed by notifying the parties of any new

issue addressed in the board meeting and allowing an opportunity to respond.

Payne v Ontario (HRC): Payne claimed discrimination vs her employer and the Commission started an

investigation. The investigation staff recommended the Commission refer her complaint to a Board of

Inquiry. The matter was considered at 3 meetings of the Commission and it decided not to refer the

complaint. She had an affidavit of a former member of the Commission that it decided on inappropriate

grounds, but no evidence other than that. She asked for disclosure and production of facts

• deliberative secrecy of administrative decision-makers is not absolute, and must be balanced with

the right of the citizen who has been affected by the tribunal's decision to effective judicial review

• to overcome the presumption of deliberative secrecy, an applicant must present some basis for a

clearly articulated and objectively reasonable concern that proc fairness has been infringed

• Examinations based on conjecture or mere speculation are not to be allowed.

II(3) ADM counsel:

(i) At the hearing: counsel cannot overstep the boundary of advisor and assume the ADM’s

functions, eg making rulings, intervening to raise issues or question witnesses, or deciding on

adjournments

- Depends on the nature of the tribunal (inquisitorial counsel can be more active, adversarial

less so)

- Failure to object to counsel’s presence at the hearing may prevent it being complained of at

JR due to acquiescence

(ii) The preparation of reasons: question is how much reliance an ADM can place on counsel to

prepare reasons without breaching the duty not to delegate or creating a reasonable

apprehension of bias

- The decision made must be that of the tribunal members themselves; counsel should not

retire with them to deliberate or else create a reasonable app of bias

- The reasons of the ADM must be in substance its own not their clerks or counsels’

International Woodworkers of America: courts will not be overly critical of language employed

by discipline committees (ameliorate negatives of excluding lawyers)

Spring v LSUC: the LSUC Convocation adopted the reasons of the Discipline Committee and

disbarred Spring for conduct unbecoming. The Committee’s decision and reasons were

prepared by a clerk who was not a member of the Committee

• Held, the clerk merely acted as an amanuensis

• Dissent: the impact of the decision means a higher threshold of proc fairness is required

Khan v College of Physicians: Khan’s license was revoked after being found guilty of prof

misconduct but the Discipline Committee of the College. He argued that counsel played so

significant a role in drafting the reasons so as to create a reasonable app of bias. In consultation

with the Committee, counsel reviewed its first draft, which was sent back for further review and

revision before release to the College. The Committee said his advice was restricted to

journalistic and administrative assistance and did not involve ‘legal advice’

• Counsel can assist to accurately reflect the reasoning processes of the committee as long as

that influence did not extend to interfering with the freedom of the tribunal members to

decide independently

- the lawyer's involvement was under the control of the committee and could not have

had any coercive effect on the committee

- there was no evidence that it had any impact on K's ability to know the case against

him

- there was nothing in the drafting process followed by the committee to raise

legitimate concerns about its integrity.

(iii) Reasons review: where agencies draw up policies to which the reasons of ADMs must conform

Bovbel v Canada: Immigration and Refugee Board referred a draft of a its decision to counsel

ito an agency policy

• The existence of a policy does not per se violate proc fairness, although its content might

• Counsel’s involvement to ensure coherence of reasons is ok. If they were to discuss

findings of fact it would NOT conform with proc fairness

II(4) ADM guidelines:

• Guidelines assist in achieving bureaucratic coherence and transmitting collective experience

• Should be made available to parties appearing

Thamotharem v Canada: T was an unsuccessful refugee applicant who allowed the Guidelines to the

Immigration and Refugee Protection Act prescribed a hearing procedure that deprived him of a right to

a fair hearing. The relevant guideline stated that the member of the Board reviewing the application

would start the questioning of the applicant. He claimed that this deprived him of the right to be

questioned first by his own counsel.

• Balance effective decision + proc fairness

• In refugee claims generally, considering the seriousness of rights involved and the generally ‘judicial’

character of the hearing, a high degree of procedural protection is warranted BUT the proceedings

are also inquisitorial, and informal, and we must be cognizant of the high case load

- The guideline does not breach the duty of fairness

• An administrative agency does not require an express grant of statutory authority in order to issue

guidelines and policies to structure the exercise of its discretion (consistency in the exercise of

discretion)

• Guidelines cannot be

- mandatory, even if they have express statutory licence (unlawful fetter of discretion)

- monitored for non-compliance

Substantive review

• Context: tension btw rule of law vs. social program implementation

• History: reticence and functionalism (judicial vs. admin and preliminary questions) -- Diceyanism

(Anisminic)-- significant deference (CUPE v NB Liquor Corp) -- recidivism; juris errors and errors

within juris (L’Acadie + Bibeault) -- pragmatic and functional; deference depends on context and

purpose not type of question (Pushpanathan) -- only 2 stds of review (Dunsmuir)

• Deference: based on (i) the democratic legitimacy of Parliament’s choice and (ii) the expertise of

ADMs

• Jurisdiction: jurisdiction to act is made up of 2 conditions:

(i) a determination of whether the conditions precedent to the exercise of that authority are

present ( ‘preliminary question’); AND

(ii) the permitted or mandatory exercise of powers that determination (i) establishes (‘collateral

question’)

- Both are questions of interpretation

- NO satisfactory test has emerged to distinguish the two

- Both can consist of a number of different factors: factual, legal (express and implied), or

discretionary

- it’s obviously not easy to distinguish these questions; older approaches tended to focus

preliminary questions of juris instead of both issues (the modern approach);

• Standard of review analysis: an analysis of what the courts consider to be the appropriate level of

deference to a matter

- Application: interpreting the relevant statutory scheme and evaluating the evidence against the

backdrop of the applicable standard of review

I ESTABLISHING THE MODERN STANDARD OF REVIEW

CUPE v. New Brunswick Liquor Corporation: Union went on legal strike and employer replaced striking

employees w/ management personnel. The Public Service Labour Relations Board decided management

fell within the strikebreaking provision that prohibited ‘other employees’ from filling the position of

striking worker contrary to the Public Service Labour Relations Act. Issue was whether the Board has

juris to hear the matter and if so whether its interp of the provision was patently unreasonable.

• Rejects the notion that courts can define the scope of a ADMs authority by classifying a question as

preliminary or not

• Interpretation: we look to the enabling statute

- emphasizes statutory context and legislative purpose

• The section was ambiguous, giving rise to multiple legitimate interpretations

- The board is a better entity to determine the matter here with its understanding of collective

bargaining and its wealth of experience

• Std of review: Court granted the Board considerable deference in its decision given the fact that the

issues were at the heart of its jurisdiction & given the presence of a privative clause

- Maintained courts inherent juris to intervene if Board’s interp so patently unreasonable that it

cannot be rationally supported by the relevant legislation

Doctrinal importance of the case:

• Expertise: court recognized that a specialized body may be better equipped than the courts to

determine the most appropriate interpretation to be given to its jurisdiction ∵ it was in a better

position to understand the ends the legislature had in mind wrt its area competence

• Ambiguous clauses: by admitting statutory language could be ambiguous (and thus capable of many

interps) the court opened the door to patent unreasonableness review, ie if specialist ADMs were in

a in better position to determine the most appropriate interp in light of the ends the legislature

intended to achieve, the maintenance of the courts’ jurisdiction could only be based on an ADM

construction that could not rationally be supported by the relevant legislation

• Preliminary questions: It shifted the focus of jurisdiction review by directing attention to the

rationality of the agency’s interpretation of the enabling statute (beginning of P&F approach which

focuses on the intent of the legislature more broadly) rather than a classification of the statutory

provision in dispute as preliminary or not (i.e. interpretation of isolated provision)

• Deference: court adopted a policy of deference to ADMs interpretation of every aspect of their

enabling statute; no distinction between ‘juris errors’ and ‘errors within juris’

II STEPS BACK TO CLASSIFICATION

L’Acadie:

• Did not adopt CUPE’s policy of plenary deference

• Reiterated the limits on the power of admin tribunals to interpret their enabling statutes

- Once a question was classified as one of jurisdiction, the reviewing court must ensure that the

decision is correct

Bibeault: a janitorial contractor and schools run by the School Board were bound by a collective

agreement. The Board called for tenders after terminating its contract with a company whose workers

were on legal strike. A new company took up the tender and the union representing striking employees

argued that it was a ‘successor-employer’ ito the Labour Code and bound by the terms of the collective

agreement b/w the union and the original contractor. The Labour Relations Board held the successor-

employer bound. The issue was whether the LR Board acted outside its jurisdiction by holding that the

successor-employer provision applied.

• Court fully revived the error of juris / within juris dichotomy, the former requiring correctness

review and the latter patent unreasonableness

• Recognized the difficulty in distinguishing of juris and in juris errors so did not define it ito

preliminary and collateral questions.

• Instead formulated a “pragmatic and functional analysis” [phrase introduced] to balance

Parliaments intentions as to the role of the ADM and the courts supervisory function

- abandoning the ‘preliminary question’ theory

- Standard of review: More principled than formalistic = wording of the statute, purpose, and

expertise of ADMs

� Dichotomy obviously problematic from a realist perspective, ie a court could go out of its way to

interpret a clause as an error of jurisdiction and conclude that its decision was ultra vires for a trivial

error

III THE MODERN STANDARD

Pushpanathan v. Canada: Appellant convicted of trafficking drugs. While on parole, he renewed his

claim for Convention Refugee Status. The Immigration and Refugee Board decided the appellant was

not a convention refugee b/c the provisions of the convention did not apply to him since he was guilty of

acts against the purpose and principles of the UN. Issue was what the proper std of review was

• The central inquiry in determining the standard of review is the legislative intent of the statute

creating the tribunal whose decision is being reviewed,

- Specifically, whether the question which the provision raises is one that was intended by the

legislators to be left to the exclusive decision of the Board.

• We can still speak of ‘jurisdictional questions’ which must be answered correctly by the ADM to be

said to act intra vires but a question that ‘goes to jurisdiction’ is simply descriptive of a provision for

which the proper standard of review is correctness, based on the outcome of the P&F analysis

- That a question is jurisdictional is not determinative of the standard of review to be applied, it

is a classification that is a function of a correctness standard of review being deemed

appropriate on the P&F analysis

- [Guy Regimbald calls a juris error ‘not so much an analytical approach as a conclusory

statement’ ]

• Factors to be considered in determining standard of review :

1. Presence or absence of a privative clause or statutory right of appeal

� The degree of deference depends on the stringency of the privative clause.

� A ‘full’ privative clause – containing phrases like ‘final and conclusive’, ‘no appeal’, and ‘all

forms of judicial review are excluded’ – means a high level of deference to the tribunal’s

decision

� The absence of a privative clause is neutral

� A statutory right of appeal means a lower level of deference applies

2. Relative expertise of the tribunal

� Expertise is a relative concept w/ 3 dimensions:

i. Court must characterize the expertise of the tribunal;

ii. Court must consider its own expertise relative to that of the tribunal;

iii. Court must identify the nature of the specific issue b/f the admin decision maker

relative to this expertise

� Fundamental question: Does the decision making body have a high level of expertise

relative to the court wrt the particular issue in question?

� Expertise may arise from a number of factors

o The composition of the board or body;

o The fact that the board or body is called upon so often that they develop

institutional competence; or

o The fact that the body follows some special procedure which gives them a relative

advantage over the courts

o Appointed ad hoc or permanent?

� A decision which involves a high level of expertise on the part of the ADM in relative terms

to the court will militate in favor of a high level of deference

� Where an issue lies at the core competency of the tribunal = high deference (CUPE)

3. Purpose of the Act as a whole and the provision in particular

� Where the purposes of the statute & of the decision maker are to resolve disputes or

determine rights between two parties – low level of deference

o The more the legislation approximates a conventional judicial paradigm determined

largely by the facts b/f the tribunal – the less deference (Dr. Q)

� Where the purposes of the statute & of the decision maker are to balance competing

interests (“polycentric issues”) – high level of deference

o Polycentric issues incl

� The protection of the public;

� The engagement of policy issues;

� The balancing of multiple sets of interests or considerations (i.e. decision maker

must “have regard to all such circumstances as it considers relevant”)

o If tribunal may select from a range of remedial options = greater deference

4. Nature of the problem: A question of law, fact, or mixed law & fact

� Questions of law � low deference to tribunal

o But even pure questions of law may be given deference where P&F analysis suggests

such deference was the legislative intent.

o Where the legislative intent is ambiguous, courts will be less deferential. It will be

assumed that legislators intended to leave highly generalized propositions of law to

courts.

� Question of fact � higher deference to tribunal b/c it was primary finder of facts.

� But there is no clear line between questions of law and fact and many determinations

involve questions of mixed law and fact.

CUPE v. City of Toronto

Dissent (LeBel and Deschamps)

• Criticism that the patent unreasonableness and reasonableness simpliciter are indistinguishable

� Standards of review should be unclear and ambiguous; confusion is unacceptable b/c the

standards should be predictable, workable and coherent.

• PU and reasonableness standards both require an assessment of rationality.

� Either a decision is rational or irrational.

� To allow PU would be to require parties to accept a decision that is est as unreasonable

� What diff does it make if the irrationality is obvious or requires probing to be discovered?

� In the end, the essential question remains the same under both standards: Was the decision

taken by the tribunal in accordance with reason? If not, it is invalidated. Seems to suggest a

fusion of the reasonableness & PU standards into one standard.

Dunsmuir v New Brunswick: Dunsmuir was employed a legal officer by the Dept of Justice and

employment was regulated ito private law and the Civil Services Act. After a rocky relationship he was

sent a termination letter with pay in lieu of notice (ito CSA). Dunsmuir took the matter to adjudication

ito the Public Service Labour Relations Act which granted grants employees of the provincial public

service the right to file a grievance with respect to a ‘discharge, suspension or a financial penalty’ (s

100.1(2)). The grievance was denied and he took it to adjudication wehre the arbitrator interpreted the

PSLRA (a question of law) to mean he could inquire into the reasons for dismissal. After inquiring into

these reasons, the arbitrator reinstated D. Issue concerned the JR of the arbitrator’s decision. The

PSLRA contained a full privative clause

Bastarache and Lebel JJ (majority)

• While exercising their constitutional functions of judicial review, court must be sensitive not only to

the need to uphold the rule of law, but also of avoiding undue interference with the discharge of

administrative functions iro the matters delegated to administrative bodies

• by Parliament and legislatures

• The Court has moved from a highly formalistic, artificial “jurisdiction” test that could easily be

manipulated, to a highly contextual “functional” test that provides great flexibility but little real on-

the-ground guidance, and offers too many standards of review

- Big thing is clarity wrt the standards of review

• There ought to be only 2 standards of review

(i) correctness

(ii) reasonableness

• Reasonableness = a decision will be unreasonable if it is not supported by any reasons that can stand

up to a probing examination, ie if any of the reasons sufficient to support the decision will stand up

to a ‘somewhat probing examination’ the decision is not unreasonable (Law Society of NB v Ryan)

- reasonableness is concerned mostly with the existence of justification, transparency and

intelligibility within the decision-making process but also whether the outcome falls within a

range of possible, acceptable outcomes which are defensible in respect of the facts and law, ie

there can be more than one reasonable outcome

- more deferential

• Correctness = court will conduct its own reasoning process to arrive at the decision it thinks is

correct, which if different from the administrator, is then substituted as the decision made

- least deferential / most exacting

(i) c

• Factors:

- In many cases, it will not be necessary to consider all of the factors, as some of them may be

determinative in the application of the reasonableness standard in a specific case.

a) presence or absence of a privative clause,

o presence is strong indication of reasonableness review

o presence can never completely remove scope for JR

o presence or absence, a measure of deference appropriate where a particular decision

had been allocated to an ADM rather than to the courts

b) nature of the question before the ADM: A question of law, fact, or mixed law & fact

o Where the question is one of fact, discretion or policy, courts tend toward

correctness review

o Where the legal and factual issues are intertwined with and cannot be readily

separated, correctness review

o Where the question is one of law of central importance to the legal system and

outside the specialized area of expertise of the ADM will always attract a correctness

standard (CUPE v Toronto)

- const issues (Martin)

- ‘true’ juris issues (narrow interp, ie where the tribunal must explicitly

determine whether its statutory grant of power gives it authority)

o Deference even if legal question if (i) ADM is interpreting its own statute or statutes

closely connected to its function, with which it will have particular familiarity, OR (ii)

ADM has developed particular expertise in the application of a general common law

or civil law rule in relation to a specific statutory context deference/reasonableness is

applied

c) Relative expertise of the tribunal

d) Purpose of the Act as a whole and the provision in particular

• Application (= reasonableness review)

- Arbitrator’s decision was the interpretation of a statute (PSLRA), ie a question of law

- The full privative clause indicates high deference, ie reasonableness

- Relative expertise of ADM / nature of regime also indicates deference

- ADM interpreting his own statute

- Legislative purposes was to establish a time- and cost-effective method of resolving

employment disputes

- Remedial nature of statute indicates finality

- Question not one of central importance to the legal system and outside the specialized expertise

of the adjudicator

• Finding = unreasonable:

- ADMs finding relied on and led to a construction of the statute that fell outside the range of

admissible statutory interpretations

- Inquiry into reasons was fundamental inconsistent with the employment contract

- Requirement to show cause not a reasonable interp of PSLRA

IV REARTICULATING THE MODERN STANDARD

Administrative Tribunals Act, ss 58-59: stipulates the standards of review applicable in the cases of

tribunals acting under statutes with and without privative clauses

Canada (Citizenship and Immig) v Khosa: K was a landed immigrant from India. He was convicted of

criminal negligence for dangerous driving and a valid removal order was issued to return him to India.

He appealed, by the Immigration Appeal Division (IAD) of the Immigration and Refugee Board, denied

special relief on humanitarian and compassionate grounds ito the Immigration and Refugee Protection

Act (IRPA) which included a privative clause. The decision was based on the facts of the crime and K’s

position, esp K’s unwillingness to admit he was racing.

The Federal Court dismissed his application for JR, holding that the special relief question and

the factors employed were highly polycentric and required high deference, ie patent unreasonableness.

The Federal Court of Appeal held that the one factor considered by the IAD - the possibility of

rehabilitation - was a legal factor that did not attract high deference, ie reasonableness simpliciter. It

set aside the IAD decision.

At issue was the exercise by judges of statutory powers of judicial review ito s 18 of the Federal

Court Act which ostensibly stipulated the std of review in various circumstances (fact, law, discretion

etc.) independent of context

• Where the legislature has enacted judicial review legislation specifying a particular standard of

review, that legislation is the first order of business

• The leg must be interpreted purposefully in light of its text, context (esp the CL) and objectives

- By using terms like ‘PU’ or ‘reasonableness’, the Legislature obviously intended the statute to be

understood in the context of the common law jurisprudence (gives eg of BCs Admin Tribunals

Act)

- Also the presumption that legislation and CL meant to be read together as far as possible

- although the concept of PU may exist in the legislation, its content is det by the change in the

principles of admin law brought about by Dunsmuir

• The intent was to capture the judicial review of federal decision-makers for the Federal Court not

specific the standard of review, ie when the judiciary may intervene (grounds) not the way in which it

must do so (standards)

• Note however the legislature can by clear and explicit language oust the common law in this as in

other matters, ie a legislature has the power to specify a standard of review if it manifests a clear

intention to do so

• Where the language is not clear, the courts will

(i) will not interpret grounds of review as standards of review,

(ii) will apply Dunsmuir principles to determine the appropriate approach to judicial review in a

particular situation, and

(iii) will presume the existence of a discretion to grant or withhold relief based on the Dunsmuir

teaching of restraint in judicial intervention in administrative matters (as well as other factors

such as an applicant’s delay, failure to exhaust adequate alternate remedies, mootness,

prematurity, bad faith and so forth).

• Application

- Given the privative clause and the factual nature of the special relief inquiry, reasonableness is

the standard

- Given the deference and broad discretion given to the ADM, the Court of Appeal should not

have overturned the decision

V PATENT UNREASONABLENESS

• A patently unreasonable error is one that is both egregious and obvious

• Dunsmuir said that the reasonableness standard of review must be ‘animated by the principle that

underlies the development of the previous two standards of reasonableness’, ie Dunsmuir

reasonableness subsumed patent unreasonableness, it did not replace it.

V(1) Inconsistency; a species a patent unreasonableness

Domtar Inc v Quebec:

• When decisions made within jurisdiction are not patently unreasonable, the principles underlying

curial deference should prevail (ADMs have the authority to err within their area of expertise, and a

lack of unanimity [inconsistency] is the price to pay for the decision-making freedom and

independence given to the members of these tribunals;

• The existence of a conflict in decisions is NOT an independent basis for judicial review, to

recognize such a basis would constitute a serious undermining of those principles given that

administrative tribunals and the legislature have the power to resolve such conflicts themselves).

V(2) Patently unreasonable findings of fact

Toronto Board of Education v OSSTF District 15:

• patent unreasonableness test differs depending on the type of mistake

(i) Fact= a finding based on no evidence is patently unreasonable BUT a court should not

intervene where the evidence is simply insufficient. When a court is reviewing a tribunal’s

findings of fact or the inferences made on the basis of the evidence, it can only intervene

where the evidence, viewed reasonably, is incapable of supporting a tribunal’s findings of

fact

(ii) Law= decision (construction of law) cannot rationally be supported by the relevant legislation

• In order to decide whether a decision of a tribunal is patently unreasonable, a court may examine

the record to determine the basis for the challenged findings of fact or law made by the tribunal.

However court should NOT weigh evidence

The use and misuse of discretion

I ABUSE OF DISCRETION AS A GROUND OF JUDICIAL REVIEW

• Definition: Discretion means an express legal power to choose a course of action from a range of

permissible options, including the option of inaction.

• Situation: where the decision required cannot be readily characterised beforehand, because they

involve a variety of indeterminate considerations / factual circumstances, and so must admit of a

choice between alternative courses of action

• Jurisdiction: made up of (i) conditions precedent to the exercise of that authority are present

(‘preliminary question’); AND (ii) the permitted or mandatory exercise of powers that determination

(i) establishes (‘collateral question’) � discretion USUALLY involves the collateral question, what

may (NOT must) be done once authority has been established; it SOMETIMES involves the

preliminary question [although no satisfactory test has emerged to distinguish the two)]

• Common grounds for judicial review of discretion:

i. Bad faith

ii. Unlawful delegation

iii. Fettering discretion

iv. Ulterior purpose (purpose not contemplated by statute)

v. Irrelevant ground / failure to consider a relevant ground

• Constitutional limitations on discretion: all discretionary decisions must conform - like the statutes

from which they draw their authority - with the Charter (Slaight Communications)

• Std of review: the intensity of review will differ depending on the context

i. Objective or subjective statutory language

ii. Specific or general purposes

iii. Is the nature of the interest affect such that the law ordinarily gives a high degree of

protection

iv. Are there alternative checks on the decision, ie political accountability

v. Expertise of the decision maker

vi. The level of political seniority the decision is made, eg Minister or Gov-in-council

Roncarelli v Duplessis: Courts are justified in performing an oversight function because of their

independence of the administration and their expertise in the interpretation of statutes

Baker v. Canada:

• P&F approach / standard of review applies to discretionary decisions as well (esp ulterior purpose

and irrelevant / relevant grounds)

• Discretionary decisions will generally be given considerable respect = high deference

• However, that discretion must be exercised in accordance w/ the boundaries imposed by:

(i) The statute,

(ii) The principle of the rule of law,

(iii) The principles of administrative law,

(iv) The fundamental values of Canadian Society, and

(v) The principles of the Charter

Essentially questions of fact,

automatically little deference

Far more NB; standard of

review analysis necessary

Suresh v. Canada: What is the standard of review to be applied to the following discretionary decision:

whether Suresh's was a danger to national security?

• Applying the Pushpanathan factors to the P&F analysis (esp intention of the Leg), the Minister had a

broad discretion in issuing his opinion & thus high deference should be afforded

i. Presence or absence of a PC or ROA: Although opinion not protected by a privative clause, it

may only be applied by leave to the Fed Court. Parliament intended only a limited right of

appeal = high deference.

ii. Relative expertise of the decision maker: Minister has access to special information and

expertise in matters of national security = high deference.

iii. Purpose of the provision & Act generally: Purpose is to permit a ‘humanitarian balance’ of

various interests; Minister is in superior position to make this assessment = high deference.

iv. The nature of the question: Inquiry is highly fact-based and contextual; not one involving the

application or interpretation of definitive legal rules = high deference.

• Minister had a broad discretion which should only be set aside where it could be found to be

patently unreasonable (broad discretion = high deference = patent unreasonableness)

� Broad discretionary decision should only to be set aside where arbitrary, mala fide, cannot be

supported by evidence, failure to consider relevant factors.

� The court should NOT reweigh the appropriate factors merely b/c it would have come to a

different conclusion

Shell Canada Products Ltd. v. Vancouver (City): city of Vancouver adopted a resolution not to do

business with Shell while it did business in apartheid South Africa. Question was whether the City of

Vancouver exercised its statutory discretion for an improper purpose. It was alleged that the exercise

was improper b/c the City’s decision not deal w/ Shell was based on conduct by Shell outside Vancouver,

& hence irrelevant to municipal concerns.

Majority (Sopinka J. + 4)

• Adopts a narrow view of municipal powers & a less deferential approach to review; as creatures of

statute, municipalities must stay w/in the powers conferred on them by the provincial legislature;

any exercise of their powers are reviewable for vires.

• A municipality can only act in accordance with its purposes (health, welfare, good govt etc):

� If purposes are express, the decision is reviewable for vires

� If purposes are implied, any ambiguity must be resolved in favour of the citizen, especially when

those purposes are outside of the ‘usual range’

• Application to the facts:

� City of Vancouver was seeking to use its powers to affect matters in another part of the world, a

purpose which is directed at matters outside the purposes of the municipality

Dissent (McLachlin J. + 3)

• Adopts a more generous view of municipal powers & a more deferential approach to review

• Rationale:

� Adheres to the fundamental principle that courts must accord respect to the democratic

responsibilities of elected municipal officials and the rights of those who elect them;

� It will aid the efficient functioning of municipal bodies & avoid the costs and uncertainty

associated w/ excessive litigation;

� It is more in keeping w/ the flexible, deferential approach in the common law wrt judicial review

of expert tribunal decisions

• Judicial intervention is only warranted where the municipality’s exercise of its powers is clearly

ultra vires.

• City Council may provide for the ‘good rule and government of the city’ which – unlike the majority

– the dissent says includes the psychological welfare of its citizens.

I(2) Failure to consider relevant factors

• ADMs cannot be expected to assemble all the factors they may lawfully take into account,

distinction btw permissive relevant considerations and mandatory relevant considerations

• Whether a particular factor is mandatory (and its omission would thus render a decision take ultra

vires) should be determined by

(i) the express and implied terms of the statute and

(ii) its importance to the discharge of the statutory mandate

I(3) Multiple purposes and considerations

• Prevailing view is the the court will only hold such decisions to be ultra vires if the unlawful purposes

or relevant/irrelevant consideration played a dominant or material role in the exercise of the

discretion, Canadian Regulated Importers

CUPE v Ontario: O was a recreation instructor criminally convicted of sexually assaulting a boy under his

supervision and fired thereafter. He took the matter to arbitration where the arbitrator made the

decision that the CUPE could re-litigate the criminal issue on O’s behalf / his determination was NOT

bound by O’s criminal conviction (ie in the face of res judicata, issue estoppel, Evidence Act etc. saying

no tender of evidence to relitigate facts essential to a determined issue)

Arbour (dissent)

• The admissibility of evidence is a matter determined by statute and CL, ie even though an expert

tribunal’s decision is accorded high deference, its decisions on questions of law are not (ie can be

reviewed)

• The TU was not entitled, at common law or statute to relitigate the issue decided against the grievor

in the criminal proceedings

• The decision was patently unreasonable

LeBel (dissent)

• The proper standard of review for fundamental legal questions is correctness \

• BUT general legal questions closely connected to the adjudicator’s core area of expertise will be

afforded deference and usually fall to be reviewed on a standard of reasonableness

II DISCRETION AND THE CHARTER

Slaight Communications: D was dismissed by Slaight and the matter was referred to arbitration. The

remedies teh arbitrator could award included ‘any other thing that is equitable to require the employee

to do in order to remedy or counteract any consequence of the dismissal’. The arbitrator ordered

Slaight to give D a letter of recommendation of specified content (the positive order) and to respond to

inquiries made about D solely by sending the letter (the negative order). The question was whether the

negative order was acceptable given Charter s 2(b)

• The negative order was a remedy contemplated by the statute (within the remedial jurisdiction of

the adjudicator) the arbitrator was part of the govt in making the decision and thus s 32 sees the

Charter apply

• The order is a breach of s 2(b) but justifiable ito s 1 on an Oakes test

Chamberlin v Surrey School District: a teacher asked the surrey School Board to approve 3 books

depicting families were the parents were same-sex ito its discretion ito the Schools Act. The Board

refused on the basis of parent’s religious objections to the morality of such unions. C challenged the

decision on the bases that (i) the Board acted outside its mandate ito the Schools Act and (ii) the

decision violates the Charter

• To determine the std of review we adopt the P&F approach and take the Pushpanathan factors into

account

• Deference ∵ of expertise etc. is tempered (HR dimension of the issue) by the School Act’s

requirement that the discretion to approve books conform to norms of tolerance, respect for

diversity, etc. = reasonableness review [intermediate form of review, before Dunsmuir]

• Factors

- Purpose: Secularism, diversity etc. are overt policies of the Schools Act

- Role of the Board: elected and representative of the community but not a legislature; defined

ito statute that it must conform to

• The exercise of discretion is constrained by the a purposive mandate of the statute

• The relevant Charter values are incorporated in the requirements of the School Act, religion can be

taken into account (representative role) but can NOT be used as a basis for advancing particular

religious agenda

• The Board, proceeded on an exclusionary philosophy in makings its decision, rather than on the

basis of respect of all types of families

• The Board acted outside the mandate of the School Act by failing to apply the criteria required by

the Act, ie the decision was based entirely on religious grounds and breach the requirements of

secularism and tolerance in its enabling statute

III DELEGATED LEGISLATION

1) Governor-in-council made delegated legislation:

- delegated leg not reviewable if dealing with matters of public convenience and general

policy but otherwise must comply with statutorily prescribed limits (Thorne’s Hardware)

- delegated leg must conform with the purposes of the enabling statute (Toohey)

2) Ministers and independent agencies made delegated legislation (regulations)

- A decision made under regulations will be ultra vires on the basis of the nature and

objectives of the legislation and the precise boundaries of the area of activity over which

the ADM is given statutory power BUT deference is given to the fact that Parliament

delegated the power to decide to the ADM (Cox v College of Optometrists)

3) Municipal bylaws:

- Grounds of review (greater scrutiny of municipalities) = municipal action can be reviewed on

lack of juris (express/implied authority, incl purpose), abuse of power (effect of exercise of

power), and failure to observe required formalities in the exercise of power (eg publicity)

(Immeubles Port Louis)

- Abuse of power (effect of exercise of power) = a wider class of circumstances may give rise o

tab abuse of power (i) unreasonableness; (ii) oppression; (iii) discrimination (Shell v Canada)

IV UNREVIEWABLE DISCRETIONARY POWERS?

IV(1) Prerogative powers and non-justiciability

• Def/n of Justiciability: Something that is w/in the jurisdiction of the courts.

• Until the mid-80s, it was normally assumed that the principles of judicial review applicable to the

exercise of statutory discretion did not extend to the non-statutory powers of gov/t

� The majority of admin programs are delivered under stat. authority

� BUT there are some areas in which the gov/t relies on the CL power of the Crown, including the

royal prerogative, eg passports, honours, treaties, armed forces

• Now, in determining whether any discretionary power is exempt from review on the grounds

normally applicable to the exercise of discretion, the courts will be influenced more by the nature

of the particular power in question and less by its legal source.

Lorne Sossin, An Overview of the Law of Justiciability in Canada

• If a subject matter is held not to be suitable for judicial determination it is said to be non-justiciable

and cannot properly come b/f the court.

• Criteria used to make the determination of justiciability:

� The capacities and legitimacy of the judicial process;

� The constitutional separation of powers

� The nature of the dispute b/f the court

Operation Dismantle v. the Queen: Appellants sought declaration that testing of cruise missiles in

Canada pursuant to US agreement violated their Charter rights under s. 7. They argued that the testing

increased the risk of nuclear war & attack on Canada.

• Appellants’ claim was struck for disclosing no reasonable cause of action – the causal link b/w the

decision of the gov/t to permit the testing & the results alleged could never be proven.

• Abolished the doctrine of political questions in Canada (entitled the courts to refrain from deciding

an issue b/f it on the ground that the issue in question was ‘political’ in nature.

• Issue of justiciability:

� The executive branch of gov/t is subject to the Charter wrt both decisions made pursuant to its

stat. authority AND its prerogative powers

� However the particular issues raised in this case were deemed non-justiciable, not simply b/c of

evidentiary difficulties, but b/c they involved moral & political considerations which are not

w/in the province of the courts to assess.

• Doctrinal significance: Courts may now review decisions made by the gov/t under prerogative

powers (provided justiciability is satisfied).

Black v. Canada (Prime Minister): UK gov/t was going to grant Conrad Black the privilege of sitting on

the HOL. Chretien called the Queen and exercised his prerogative power ito the Nickel resolution

(requesting sovereign not to grant honours to Canadians). Black brought a civil suit against Chretien

seeking damages arguing that he suffered inconvenience and embarrassment as a result of the refusal.

• The source of the power – statute or prerogative – should not determine whether the action

complained of is reviewable

• The controlling consideration in determining whether the exercise of a prerogative power is

judicially reviewable is its subject matter not its source

• The exercise of a prerogative power will be amenable to the judicial process if it affects the rights

of individuals

� At one end of the spectrum are non-judiciable exercises such as signing treaties and declaring

war and at the other end of the spectrum are judiciable exercises such as refusal of a passport.

� The honours prerogative falls somewhere in b/n

• Here the actions of the PM in exercise of the honours prerogative was not judicially reviewable b/c

no important individual interests were at stake

� Black’s rights were not affected; no Canadian citizen has the right to an honour

� The conferral of an honour engages no liberty, proprietary, or economic interests; it enjoys no

proc. protection; it doesn’t have suff. legal component to warrant the court’s intervention

� Instead, it involves “moral and political considerations which it is not w/in the province of the

courts to assess” (Operation Dismantle)

IV(2) Public interest immunity (state privilege)

• Claims to public interest immunity are reviewable. Depending on the type of document involved

(cabinet meetings, police informers etc.) the guidelines differ but judges may privately examine

them to make the determination

• Ss 37-9 Evidence Act exempt certain federal docs from scrutiny (Charter?)

The jurisdiction of tribunals to decide constitutional challenges

• Issue: Do administrative tribunals have the jurisdiction to decide constitutional challenges to their

own enabling legislation?

• If so is a litigant limited to that statutory tribunal or can he choose to go to a superior court? Also,

may a statutory tribunal grant constitutional remedies (24(1))?

• If not, it presumably must either adjourn the proceeding to enable the party to obtain a ruling from

the courts, or proceed w/ a hearing on the assumption that its legislation is valid

• Practical note – One must be able to assert his constitutional rights in the most accessible forum

available. Forcing litigants to refer Charter issues to courts would be unreasonable (McLachlin in

Webber)

I JURIS OF TRIBUNALS TO DECIDE CONST CHALLENGES

Martin v. Nova Scotia Two injured workers applied to NS Worker’s Comp Board. They were given

temporary benefits but cut off once diagnosis became chronic pain. The workers claimed discrimination

based on disability (s. 15) b/c the Nova Scotia Workers Compensation Act excludes benefits to people

suffering from chronic pain. Issue was whether the Workers’ Compensation Appeals Tribunal had the

authority to consider the constitutionality of provisions in its own governing legislation.

• Methodology to det if tribunal has Charter juris (implication should generally arise from the statute

itself, rather than from external considerations)

(i) Does particular term of the statute gives the tribunal express juris to decide questions of law

OR

(ii) Can juris to decide questions of law can be implied from the statute as a whole.

Considerations =

- Statutory mandate: is deciding questions of law necessary for the tribunal to fulfill its

statutory mandate, ie does it interpet / apply CL principles and other legislation

- Interaction with other elements of the administrative system:

- Tribunal adjudicative in nature: power to summons, compel testimony etc.

- Practical considerations: incl capacity to hear questions of law (although practical

considerations cannot override clear implication)

(iii) If found to have explicit or implied juris to decide questions of law it will be presumed to

include jurisdiction to determine constitutional validity of that provision under the Charter.

(iv) Party alleging lack of jurisdiction may rebut the presumption by:

- pointing to an explicit withdrawal of authority to consider the Charter; or

- convincing the court that an examination of the statutory scheme clearly leads to the

conclusion that the legislature intended to exclude the Charter (or a category of

questions that would include the Charter, such as constitutional questions generally)

from the scope of the questions of law to be addressed by the tribunal.

• Authority once established

- Subject to JR on correctness standard (question of law)

- Decision NOT binding on future decision-makers either within or outside of the tribunal’s own

administrative scheme.

• Remedial powers are limited: declare provision invalid (must be confirmed by court to bind others)

Paul v. BC (Forest Appeals Commission): Paul, a registered Indian, cut trees. Logs were seized form him

for violating the general prohibition against cutting Crown timber but he claimed he was exercising

aboriginal rights under the Charter and was entitled to timber. Issue was whether the Forest Appeals

Commission had jurisdiction to hear Mr. Paul’s defence of aboriginal rights (a constitutional issue)?

• The same approach applied in Martin for a Charter issue is applied here for a Constitutional issue (ie

rest of the 1982 Const, the BNA Act and the rest) [which is the key difference between Martin and

Paul]

II THE APPROPRIATE FORUM

***see Administrative Tribunals Act SBC 2004 & Administrative Procedures and Jurisdiction Act RSA

2000

III CONST REMEDIES

Webber v Ontario Hydro: Webber was receiving workman’s comp ito a collective agreement but

Ontario Hydro suspected him of malingering. It sent a PI to investigate him and this resulted in his

benefits being suspended. Eventually he got them reinstated but then claimed a Charter breach (privacy)

in court and asked for 24(1) remedies. Ont Hydro claimed that under the Ont LRA provided that a

dispute arising from a collective agreement is to be settled in arbitration. Issue is whether an arbitrator

(or any ADM) is ‘a court of competent jurisdiction’ ito s 24.

• ADMs are empowered to grant such remedies as the law allows them; In order to award a Charter

remedy, an ADM must have specific juris to do so

• 2 part test to s 24: (i) whether in general the ADM is the type of body that can be granted remedial

juris (‘a court’); and (ii) whether it in fact has jurisdiction over the matter ito a) the parties, b) the

subject matter, and c) the remedies sought (‘of competent juris’)

- a matter of statutory interp, ie if the leg grants powers to make Charter determinations, it is

implied that the ADM has power to Charter dispense remedies

IV THE STANDARD OF REVIEW

• The question of constitutional juris is a jurisdictional question, ie you either have authority or you

don’t

• Administrative decisions about jurisdictional matters are subject to review on a correctness

standard (Cuddy Chicks; Douglas College; Martin)

• If it had jurisdiction, its decision on the constitutional question is also subject to correctness review

(Cuddy Chicks)

Multani v. Commission scolaire & AG (SCC, 2006) G (a Sikh) accidentally dropped his kirpan (worn under

his clothes) at school. School board sent G’s parents a letter in which it authorized G to wear his kirpan

provided that he sew it into his clothes – G’s parents agreed. The Governing board of the school refused

to ratify the agreement on the basis that wearing the kirpan violated the school’s code of conduct. The

school board’s Council of Commissioners upheld that decision. B (guardian) filed in the Superior Court a

motion for a declaratory judgment to the effect that the Council of Commissioners’ decision was of no

force or effect. The Court of Appeal reviewed the Council’s decision on a standard of reasonableness,

and upheld it.

Majority (McLachlin J.) - direct to Charter

• Since the complaint is based entirely on freedom of religion the administrative law standard of

review was not relevant.

• Where the legislation (pursuant to which an administrative body has made a contested decision)

confers a discretion and does not confer, either expressly or by implication, the power to limit the

rights and freedoms guaranteed by the Charter, the decision should, if there is an infringement, be

subjected to the test set out in s. 1 to ascertain whether it constitutes a reasonable limit.

• Application to the facts: Held the infringement of G’s freedom of religion can’t be justified under s. 1

of the Charter. The objective of safety is pressing and substantial, there is a rational connection, but

it not a minimal impairment of G’s freedom of religion

• Compares reasonableness review and minimal impairment

Dissent (Abella & Deschamps JJ.) - Charter application (if relevant) through the std of review

• Although a constitutional justification analysis must be carried out when reviewing the validity or

enforceability of a law, regulation or other similar rule of general application, the admin law

approach must be retained for reviewing mere decisions made by admin bodies (no application of

Charter to individuals)

• If an admin body makes a decision or order that is said to conflict with fundamental values, the

mechanisms of administrative law — including the standard of review — are readily available.

• Does NOT agree with equating minimal impairment (ito s 1) and reasonableness review; the duty of

reasonable accommodation takes into account the specific details of the circumstances of the

parties, the justification of minimal impairment is based on societal interests.

Standing

• Development: admin law traditionally focussed on vindicating individuals’ rights (individual int) –

still so today but also includes rooting out or getting at illegality (pub interest) –– tentative move to

allow representative actions aside from the AG

• General Rule: A person receiving adverse treatment has standing to bring forth a claim.

• Complication: Situations arose,

1. where the decision in question affected a broad section of society in a diffuse way (e.g. Bell

Canada or Inuit); or

2. where the decision would affect a range of interests in a different way and the person to bring

forth the claim is the person least affected (e.g. Lafarge)

• Issue: Who is entitled to bring judicial review proceedings in the public interest?

Advantages of Granting Public Interest Standing:

• Facilitates the public interest policing of the legality of government conduct

• Provides another form of democratic accountability

• Greater judicial recognition and vindication of group rights

Disadvantages of Granting Interest Standing:

• Increases burdens on an already overburdened judicial system (floodgates)

• Courts can better evaluate an issue when it is brought in a real life context by those most affected

by it, rather than in the abstract

• Leads to politicization of the courts

• May lead to courts deciding questions that are best left to the legislature (institut competence)

• Given the cost of litigation, only the most privileged will be able to take advantage

I INDIVIDUAL INTEREST STANDING:

Finlay v. Canada (Minister of Finance): Finlay was receiving social assistance. He brought a claim to

seek a declaration and an injunction wrt to transfer payments made by the feds to Manitoba under the

Canadian Assistance Plan. His claim was based on the fact that Manitoba’s social assistance plan did not

comply w/ a transfer agreement. He claimed if Fed had complied with the rules, the provs would have

responded by grating more assistance.

Issue was whether Finlay had a sufficient personal interest in the legality of the federal cost-sharing

payments to challenge the transfer payments?

• Finlay did NOT have a sufficient personal interest to challenge the transfer payments:

� TEST: A person is not “interested” in a matter unless he is likely to gain some advantage (other

than the satisfaction of righting a wrong, upholding a principle or winning a contest) if his action

succeeds or to suffer some disadvantage (other than a sense of grievance or a debt for costs) if

his action fails.

� Here, the problem was that it was speculative what the prov. gov/t would do if the feds stopped

funding – it was not certain Finlay would get the remedy he wanted.

II PUBLIC INTEREST STANDING

Finlay v. Canada (Minister of Finance): note: This is the first purely admin law case where public

interest standing was recognized (where previously it had only been recognized wrt constitutional issues)

Issue was whether, if Finlay did not have a personal interest in the legality of the transfer payments

[which he didn’t], the court have a discretion to recognize public interest standing? If it did have such a

discretion, should it be exercised in favour of Finlay?

• Finlay did not have a sufficient personal interest to challenge the transfer payments:

• But the Court held that it has a discretion to grant public interest standing to an individual where

the following 3 factors are satisfied:

(i) Is there a serious justiciable issue regarding the validity of a challenged law or action?

• Is there a legal issue w/in the proper role of the courts?

� As long as there is a legal issue it does not matter that its policy context is better left to

legislature or executive

o Are the claims too wide-sweeping/cover too much of the Act? = against standing

o Are the claims too hypothetical? = against standing

o Are the claims too political? = against standing

• Is that legal issue serious or frivolous?

� The issue in question must be serious or important; not frivolous or busybody

• Application; Questions raised by Finlay are questions of law = justiciable, and aren’t frivolous

(ii) Does the interested party have either a direct interest or a genuine interest in the validity of the

legislation or action?

• Has the party demonstrated a real and continuing interest in the issues?

• Application: Finlay’s status as a person in need in contemplation of the Plan who claims to have

been prejudiced shows that he has a genuine interest

(iii) Is there no other reasonable and effective way of bringing the matter before the court?

• Court has the benefit of the competing points of view

� Have others been consistently bringing challenges? = against standing

� Can others bring more concrete and clear factual basis upon which to make a decision? =

against standing

� Is it well established that the group is vulnerable to continued existence of legislation in an

unchallenged form? = for standing

� Are the provisions in question very similar such that they do not require factual context to

make a ruling? = for standing

• Application: Nature of legislation demonstrates that no one else has a more direct interest

Notes:

• Court found the above test addressed many of the concerns wrt public interest standing:

� Concerns about the proper role of the courts and their constitutional r/ship to other branches of

gov/t is addressed by the requirement of justiciability

� Concerns about the allocation of scarce judicial resources & the need to screen out the mere

busybody is addressed by the requirements that there be a serious issue and that a citizen have

a direct or genuine interest

� Concerns that in the determination of an issue a court should have the benefit of the contending

views of the persons most directly affected by the issue is addressed by the requirement that

there be no other reasonable & effective manner in which the issue may be brought b/f a

court

• One of the implications of Finlay is that the discretion of the court only comes into play when the

applicant or plaintiff fails to establish standing by reference to the traditional common law rules or

any relevant statutory provisions wrt standing. Where those standards are met, the plaintiff is

entitled to bring the case as of right.

Can. Council of Churches v. Canada (Minister of Employment & Immigration): CCC represents the

interests of a broad group of member churches and co-ordinates their work aimed at the protection and

resettlement of refugees. Amended Immigration Act completely changed the procedures for

determining whether applicants come w/in the definition of Convention Refugee. On the 1st

day after

the amended act came into force the CCC sought a declaration that many if not most of the amended

provisions violated the Charter

• CCC not granted public interest standing b/c it failed to meet 3rd

part of the Finlay test

• The purpose of granting status is to prevent immunization of legislation or public acts from

challenge. The granting of public interest standing is NOT required when, on a BOP, it can be

shown that the measure will be subject to attack by a private litigant.

• Ie failed on the no other reasonable and effective way test: other people in a more concrete factual

manner are likely to bring a challenge

Vriend v Alberta: Vriend fired from religious school where he taught for being a homosexual. Claimed

redress under Alberta Individual Rights Protections Act but denied ∵ it did not prohibit same-sex discrim.

A few gay and lesbian org’s and he brought a s 15 challenge not just on the employment provisions

(indiv interest) but on all the provisions of the Act with a list of proscribed discrim which did not include

same-sex

• Members of te public can bring a claim against legislation offending constitutional interests

• It was a serious and justiciable issue (const issue), they had a direct interest (this is not really an

employ discrim case), and there were no other reasonable and effective ways to bring the issue

before court (waiting for someone else to be discriminated against would be unfair to the litigants –

imposing cost, delay and person vulnerability – besides being a wasteful of judicial resources;

ripeness)

Harris v. Canada: Harris, a taxpayer and member of an organization that seeks to ensure the fair

administration of the taxation system, sought a declaration that the Min National Revenue had acted

illegally in providing another taxpayer w/ a favourable private advance ruling while maintaining a

different position publicly. Harris requested that the AG bring the case twice; but the AG has not

complied. Harris claimed ulterior motive (serious infringe)

• If Revenue Canada makes compromise agreements or covert deals or provides preferential

treatment to certain taxpayers w/o statutory authority, public interest standing may be granted to

challenge the tax treatment that Revenue Canada affords the taxpayers who benefit

• It was a serious and justiciable issue (improper motive), he had a direct interest (taxpayer +

organization rep), and there were no other reasonable and effective ways to bring the issue before

court (AG refusal + unlikely taxpayers would do so ∵ favourable to them)

• Standing granted to Harris.

III THE ROLE OF THE ATTORNEY GENERAL

• Traditionally, the launching of challenges wrt AA affecting the broader public interest required the

unreviewable discretion of the AG, ie AG seen as the sole and most appropriate vindicator oft the

public interest

• BUT, AG part of Cabinet that may contain the Minister whose department is under scrutiny, AG not

receptive to diversity of the public int, impractical that AG be sufficiently vigilant ∴ good legal policy

to allow public int standing

• Issue: in what circs can the AG be considered to have standing?

Energy Probe v. Canada (Atomic Energy Control Board): Energy Probe challenged the renewal of a

nuclear reactors’ license on grounds of bias of a member of the licensing authority. The court accepted

it had pub int standing but it then argued the AG should not be a party to the dispute.

• Basis for AG standing is (i) the protection a Crown interest [prob det by Finlay individual int test];

and (ii) the issue b/f the court was one of “general importance” and of such a nature that the Court

deemed it beneficial to hear the arguments of the AG to ensure all arguments canvassed.

III THE STATUS OF THE AUTHORITY UNDER ATTACK

Ontario (Children’s Lawyer) v. Ontario Information & Privacy Commissioner: The Children’s Lawyer for

Ontario (CLO) had acted as litigation guardian and had represented a child in 3 civil cases. When the

child became an adult, she wrote to the CLO and requested her file. The CLO refused to disclose some

of the file relying on ss. 13 & 19 of Freedom of Information and Protection of Privacy Act (which

provided disclosure exemption for info/recommendations prepared by Crown counsel/public servants).

She appealed the CLO’s decision to the Information and Privacy Commissioner who ordered the release

of almost all the remaining material. The CLO applied for judicial review of the Commissioner’s decision

and moved for an order declaring that the Commissioner did not have standing to participate in the

application.

• S. 9(2) of the Judicial Review Procedure Act:

� The ordinary meaning of s. 9(2) gives a tribunal the right to be a party to a proceeding if it

chooses to do so.

� Choice regulated by tribunal’s empowering statute (Privacy Act)

� Where a tribunal’s empowering legislation does not specifically articulate the tribunal’s role

(which it doesn’t), the scope of standing accorded to the tribunal whose decision is under review

is a matter for the court’s discretion.

� The decision of whether to grant standing to a tribunal should be conducted on a case-by-case

contextual basis.

• This discretion will be exercised based on considering 2 relevant factors:

(i) The importance of having a fully informed adjudication of the issues b/f the court

o Principal Question: Whether the participation of the tribunal is essential to achieve a fully

informed adjudication of the issues b/f the court.

o A tribunal is likely to be given standing, and be able to make submissions, where:

a) The tribunal has specialized expertise (i.e. the decision involves matters peculiarly w/in

the tribunal’s expertise), or

b) There is no alternative knowledgeable advocate (i.e. the judicial review application

would otherwise be unopposed)

(ii) The need to maintain the tribunal’s impartiality

o Principal Question: Whether the participation of the tribunal would undermine future

confidence in its objectivity.

o A tribunal is not likely to be given standing where:

a) The tribunal’s role was not to evaluate the interests of an applicant against a legislative

standard but to resolve disputes b/n 2 litigants;

b) The nature of the issue under review is such that participation of the tribunal might

create an apprehension of bias (e.g. where the issue is whether the tribunal treated a

particular litigant fairly as opposed to whether the structure of the tribunal

compromised natural justice)

• Court finds in favour of full tribunal participation

Residual discretion of the court to deny relief

• Prerogative writs – as the name implies – are not available as of right

• Apart from standing and jurisdiction, the courts have a residual discretion to control access to a

determination on the merits of admin decision making

• Not necessarily and all-or-nothing approach, eg quashing orders can be postponed (Cowessess

Indian Band)

• (i) exhaustion of alternative remedies; (ii) ADM must be functus officio; (iii) mootness; (iv) delay; (v)

misconduct of applicant; (vi) waiver; (vii) balance of convenience

I EXHAUSTION OF ALTERNATIVE REMEDIES

• Courts will sometimes regard the existence of a specific remedy in the empowering statue as

excluding the availability of CL review as a matter of jurisdiction

• This is an issue of the appropriateness / adequacy of alternative remedies (ie not their mere

existence)

Harelkin v University of Regina: student was excluded and instead of utilising the available right of

appeal to the University Senate he applied for JR

• A right of review / appeal in an empowering statute will be adequate unless it is unequivocally clear

that it would not amount to a fair hearing (clear from words of statute, unreasonable delay, refusal

to perform its duty etc)

• Factors taken into account in determining adequacy incl (i) the procedure on the appeal, (ii) the

composition of the appeal body, (iii) its powers and the manner in which they were probably to be

exercised, (iv) the burden of a previous finding, (v) expeditiousness and (vi) costs.

• An applicant is not entitled to use the courts merely because they are more convenient remedy ito

costs or expeditiousness BUT costs + expeditiousness will be sufficient if, in addition, there is no

other way to protect the right

Canadian Pacific Ltd v Matsqui Indian Band: CP had levies imposed on it by a tribunal est ito The Indian

Act for reviewing levies it allowed bands to tax on people using the reserve. CP went to court without

pursuing the appeal procedures established under the Act

• Factors taken into account in determining adequacy incl (i) Legislative intention, (ii) the convenience

of an alternative remedy, (iii) the nature of the error, (iv) the nature of the appeal body

• Factors not a closed list & should be contrasted and weighed against one another in a contextual

enquiry

II ADM MUST BE FUNCTUS OFFICIO

• An applicant for JR must ensure that the first ADM cannot review its own decision (cf. Exhaustion

dealing with a superior review of an ADM decision)

• The decision maker must be functus officio, having discharged his duty, an ADM ceases to have any

authority over that matter (Chandler v Alberta Association of Architects)

III MOOTNESS

• The matter must have practical significance and cannot be hypothetical or abstract (Borowski v AG)

V DELAY

• Failure to adhere to time provisions can go to jurisdiction or discretion of the court

Friends of the Oldman River Society: Minister approved a dam building project without an EIA and the

challenge only came 3 years after when the project was 40% complete

• Factors = (i) whether other parties who have relied on decision will suffer prejudice; (ii) when

applicant became aware of decision; (iii) other action taken against decision; (iv) the gravity of the

problem with the decision (eg was it a criminal offence)

Re Consolidated Maybrun Mines Ltd: mining company ordered by Minister of Environ to clean up

transformers containing PCBs (posing an environ risk) in their abandoned mine. They ignored the order

and when charged by the Ministry sought to have the order declared invalid, ie in their criminal case

• Involves a collateral attack: a challenge to an admin decision in proceedings that do not have as

their direct target the validity of the relevant decision or action; ie challenging the validity the admin

decision by way of defence to a prosecution for breach of that law

• Overarching principle: what forum did the Leg intend to deal with the issue of invalidity?

• Factors taken into account in det Leg intention, ie whether a court can rule on a collaterally attack

admin decision: (i) the wording of the statute from which the power to issue the order derives; (ii)

the purpose of the legislation (preventative, remedial, punative); (iii) the availability of an appeal (ie

remedy within the ADM other than quashing its order); (iv) the reason for the collateral attack (their

own refusal to cooperate); (v) the penalty on a conviction for failing to comply with the order

Garland v Consumer Gas Co: CGC was a gas utility that charged it customers a flat one-time fee for

payments after the due date. It was allowed to implement this by a decision of the Ontario Energy

Board. For a significant number of customers – who paid their fees relatively soon after the due date –

the fee equated to CGC charging them a very high interest rate. A few consumers alleged this was

contra the Criminal Code making it an offence ot charge interest over 60%. It was argued this was a

collateral attack on the OEB’s decision to allow the late-charge in the first place

• The doctrine of collateral attack can prevent a party from undermining previous orders issued by a

court or administrative tribunal , often invoked where the party is attempting to challenge the

validity of a binding order in the wrong forum

• To amont to a collateral attack the party must be bound by an order and then seek to avoid it by

challenging its validity (rule of law and repute of admin of justice rationale), ie there must be a

threat to the integrity of the system

• This is not a collateral attack on the OEB’s decision as this is essentially a claim to recover money

that was illegally collected as a result of Board order.

Remedies

I COMMON LAW REMEDIES – PREROGATIVE WRITS

• Types of writs (* newly added)

1. Certiorari: to quash the decision

2. Mandamus: forcing the public actor to do a particular thing

3. Prohibition: preventing the public actor from doing something

4. Habeas Corpus: reviewing the detention of an individual

5. Quo warranto: challenge the assumption of public office

6. *Injunction: court stops the proceedings (enjoins parties from proceeding)

7. *Declaration: court-made statement of relationships/duties/rights (NOT available where

individuals bring action)

I(1) The reach of public law remedies: govt in private relations

Volker Steiin v Northwest Territories: under a policy doc issued by the govt of the Northwest Territories

an Advisory Committee was set up to designate certain businesses as having preferential status when it

came to applying for govt tenders. In administration of that policy, the Committee revoked VS’s

preferent status and it applied for certiorari to quash the decision

• Purely commercial relations NOT reviewable, eg procurement

• This was NOT the exercise of statutory authority but it was the exercise of govt power; the ability to

do business in the Northwest Territories

• reviewability depends on the nature of the power exercised and not necessarily its source

II ALLOCATION OF REVIEW AUTHORITY (FED/PROV) – PROPER FORUM FOR JR

• BNA, s 101, grants the federal govt the power to make new courts to supervise the laws of Canada

� On the basis of its power under s. 101, the fed gov/t enacted the Federal Courts Act which then

created the FCTD & the FCA (“s. 101 courts”)

� The federal govt then conferred on these courts the power (under statute) to review the

decisions of federal boards & agencies

� Fed courts do NOT have inherent juris so restricted to review ito FCA or enabling leg

• BNA s. 96, allows provincial Superior Court members to be appointed by federal government (“s. 96

courts”)

� Source of powers of the Superior Court: (1) statute; and (2) inherent jurisdiction

� Inherent juris cannot be removed by Parliament through ordinary leg (FC Act)

� Fed courts have NO inherent juris so their juris depends on conferral ito the FC Act) or the

enabling legislation (Roberts v Canada)

• Mostly, the choice on whether fed / prov will depend on the source of the power, ie tribunals

created by Parliament = fed review, tribunals created legislatures = prov review

III REALM OF FEDERAL REVIEW POWER

• Federal courts have juris that is expressly conferred or implied by statute (cf. Prov courts which

have presumed juris, unless removed by statute)

Exclusive Judicial Review Jurisdiction of the Federal Court

S. 18(1),– subject to s 28 (FCCA excl juris) the FCTD has exclusive JR jurisdiction wrt any federal board,

commission or other tribunal…and the court can issue injunction, certiorari, prohibition, mandamus, or

grant declaratory relief.

Definition of “federal board, commission or other tribunal” (principal threshold to application of FCA

and Fed JR)

S. 2,: any body, person or persons having, exercising or purporting to exercise jurisdiction or powers

conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of

the Crown, other than any such body constituted or established by or under a law of a province or any

such person or persons appointed under or in accordance with a law of a province or under s. 96 of the

Constitution

∴ Fed court excl juris extends to

(i) Acts of Parliament;

- Primary and subordinate legislation

- Does NOT apply to corporate bodies established under federal legislation including

Crown corporations, band councils, boards of directors of corps. Incorporated under

the CBCA; Canada v. Lavell

(ii) instruments issued in exercise of a royal prerogative (regulations etc.)

- Does NOT apply to direct exercises of a prerogative power; Black v. Canada (Nickel

resolution prerog power exercised to recommend no honour on Black)

Exclusive jurisdiction of FCCA (ie excl from both Superior Courts and FCTD)

28.(1) The Federal Court of Appeal has jurisdiction to hear and determine applications for judicial

review made in respect of any of the following federal boards, commissions or other tribunals:

- the Board of Arbitration established by the Canada Agricultural Products Act;

- the Review Tribunal established by the Canada Agricultural Products Act;

- the Canadian Radio-television and Telecommunications Commission established by the

Canadian Radio-television and Telecommunications Commission Act;

- the Pension Appeals Board established by the Canada Pension Plan;

- the Canadian International Trade Tribunal established by the Canadian International Trade

Tribunal Act;

- the National Energy Board established by the National Energy Board Act;

- the Canada Industrial Relations Board established by the Canada Labour Code;

- the Public Service Labour Relations Board established by the Public Service Labour Relations Act;

- the Copyright Board established by the Copyright Act;

- the Canadian Transportation Agency established by the Canada Transportation Act;

- umpires appointed under the Employment Insurance Act;

- the Competition Tribunal established by the Competition Tribunal Act;

- etc.

II(1) Test for Federal Court juris

• Federal courts have juris that is expressly conferred or implied by statute (cf. Prov courts which

have presumed juris, unless removed by statute)

• Test basically a matter of the defn of “federal board, commission, or other tribunal” in FCA, s2

• However, s 2 does not reach all bodies employing federal power (esp Crown Corporations) so

International Terminal Operators v Miida Electronics

� 3 part test

1) A statutory grant of jurisdiction by Parliament: Federal Courts Act or the enabling statute

2) An existing body of federal law which is essential to the disposition of the case and which

underpins the statutory grant of juris: the case must be governed by a federal Act

3) The law on which the case is based is a “law of Canada” ito BNA s 101: the federal Act must

be valid, ie pass distribution-of-powers muster

II(2) Remedies that can be granted by a FC

Powers of Federal Court

S. 18.1(3): On JR application, FC may

(a) order a federal board, commission or other tribunal… to do any act/thing it has unlawfully failed

or refused to do or has unreasonably delayed in doing; OR

(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in

accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision,

order, act or proceeding of a federal board, commission or other tribunal.

Grounds of review

S. 18.1(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board,

commission or other tribunal

(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was

required by law to observe;

(c) erred in law in making a decision or an order, whether or not the error appears on the face of

the record;

(d) based its decision or order on an erroneous finding of fact that it made in a perverse or

capricious manner or without regard for the material before it;

(e) acted, or failed to act, by reason of fraud or perjured evidence; or

(f) acted in any other way that was contrary to law. (some counsel make their argument under (f)

and then stick to the common law language)

• Under s. 18.1(3) and (4), Federal Court Act…it is clear that the federal courts have the discretion to

deny relief

� Common grounds to deny relief: Statutory right of appeal, prematurity, delay, mootness, lack of

practical utility, misconduct of applicant, waiver and balance of convenience, & public interest

� Problem: it could legitimate unlawful admin action

• Court’s discretion to refuse relief can occur:

� Where a specific remedy in the empowering statute exists

� Where judicial review is inconvenient

IV REALM OF PROVINCIAL (ie SUPERIOR COURT) REVIEW POWER

• Prov courts which have presumed juris, unless removed by statute (cf. Federal courts have juris that

is expressly conferred or implied by statute)

• Prov courts still possess concurrent and at times exclusive (prov Acts)

IV(1) Judicial Review Procedure Act (Ontario)

Judicial Review Jurisdiction

S. 2(1) Applications for judicial review – On an application … the court may, despite any right of appeal,

by order grant any relief that the applicant would be entitled to in any one or more of the following:

1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.

2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the

exercise, refusal to exercise or proposed or purported exercise of a statutory power.

S.1, Definitions:

“statutory power” means a power or right conferred by or under a statute,

(a) to make any regulation, rule, by-law or order, or to give any other direction having force as

subordinate legislation,

(b) to exercise a statutory power of decision

(c) to require any person or party to do or to refrain from doing any act or thing that, but for such

requirement, such person or party would not be required by law to do or to refrain from doing

(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of

any person or party

“statutory power of decision” means a power or right conferred by or under a statute to make a

decision deciding or prescribing,

(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or

(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or license,

whether the person or party is legally entitled thereto or not, and includes the powers of an

inferior court.

• The use of “in the nature of” in the statute can mean the JRPA applies not only to old prerogative

writs but also other remedial regimes that are like or in the nature of prerogative writs (Re Rees)

• Purpose of limiting application s. 2(1) to exercises of statutory powers only was to limit application

of the Act to the public law sphere

� While prerogative writs naturally are only public law remedies (Bezaire; Martineau), injunctions

and declaratory relief are found in private law.

� Via s. 2 the legislature is signalling that the Court in reviewing may only grant public law

remedies rather than private law remedies.

IV(2) Concurrent jurisdiction / exception to rule of no prov auth over fed tribunals (habeus corpus)

May v Ferndale: the Correctional Service of Canada used a computer programme to formulate a score

for inmates determining their appropriate security level. May – a federal inmate – was transferred from

a minimum to medium-security institution (more restrictive of liberty). In provincial superior court, he

applied to for habeas corpus to go back to which end he also applied for a certiorari for the scoring

matrix. The BCCA felt prov courts could NOT exercise juris

[decided under BC Judicial Review Procedure Act but basically same as Ontario’s Act]

• JR is available for decisions relating to prisoners wrt the liberty they have left (‘residual liberty’), ie

the rule of law applies within prison walls

• The nature of habeus corpus should be interpreted purposively, ie protection of individuals against

wrongful restraints of liberty

• Prov courts will have jurisdiction to issue certiorari in aid of habeas corpus in respect of detention

and administrative segregation in federal penitentiaries in order to protect residual liberty interests.

• Prisoner should have the choice of forums (CONCURRENT JURIS: prov court ito habeus corpus and

Fed courts ito statutory JR)

• Prov courts are suited because of their expertise with the remedy, timeliness, and local access

• Prov court should NOT exercise juris (goes to Fed instead) =

(i) Where a statute (eg Criminal Code) confers jurisdiction on a court of appeal to correct the

errors of a lower court and release the applicant if need be;

(ii) Where Parliament has put in place a complete, comprehensive and expert procedure for

review of an administrative decision (ie does the scheme reflect and intention to exclude any

other court or tribunal from entertaining any type of proceedings)

• There is no Act dealing with administrative detention and Parliament has not put in place a

procedure for dealing with the confinement of prisoners

V INTERIM RELIEF

• Interim relief (i.e. stay of proceedings or interlocutory injunctions) are sought for two reasons in the

admin law context:

1. to prevent an administrative process from proceeding pending disposition of an application for

judicial review;

2. to prevent actions being taken by those subject to the admin process pending the conclusion of

a hearing/investigation

V(1) Stays of proceedings

Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd. (SCC, 1987): After a union applied for

imposition of a contract, MS (employer) wanted declaration that provisions of LR Act authorizing such

applications were contrary to the Charter. In the context of the Charter challenge, MS sought a stay of

further action by the Board until the court disposed of the Charter challenge.

• Conditions for granting a stay in the administrative process (American Cyanamid):

i. Applicant must satisfy the court that there is a serious question to be tried (i.e. not a

frivolous or vexatious claim);

ii. Applicant must satisfy the court that s/he will suffer irreparable harm unless the injunction is

granted; and

iii. Applicant must satisfy the court that the harm to him or her resulting from the injunction

not be granted is greater than the harm to the other party if the injunction is granted –

‘balance of (in)convenience’

• In constitutional litigation, an interlocutory stay of proceedings ought not to be granted unless the

public interest is taken into consideration in the balance of convenience & weighed together w/

the interest of private litigants

V(3) Injunctions

• An ADM can be given authority to make interim rulings pending a decision but if not, the courts can

be asked to award interlocutory relief

Brotherhood of Maintenance of Way Employees: BCSC was asked to award an injunction restraining an

employer from implementing a change to the work schedule pending arbitration

• Courts retain a residual discretionary power to grant interlocutory relief where there are no

adequate alternative remedies

• This can be applied for whenever there is a justiciable right and that right need not fall for

determination before the same court from which the interlocutory relief is sought

** Note: When you bring a claim for judicial review, damages are available. To claim damages, a party

would have to commence a separate action in provincial court