Admin Template (Not an Nca Summary) (1)

7/31/2019 Admin Template (Not an Nca Summary) (1)

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PROCEDURAL FAIRNESS: THRESHOLD ISSUE

THREE SOURCES OF PROCEDURAL ENTITLEMENT

(1) Legislation; Public decision makers (PDMs) are acting under legislative authority,

and these statutes will probably have limitations set out and procedures set out for the

PDMs. It is possible for the statute to limit your procedural entitlements at common law

(i.e. the statute might limit your right to an oral hearing). However, there are some

entitlements that exist as a Constitutional protection, and these rights may be immune

from derogation.(2) Common law; certain types of procedure entitlements have been developed over

time (right to a fair hearing, right to oral hearing, right to disclosure, etc.). Even if the

statute itself doesnt give a procedural entitlement, you might have one here.

(3) Charter:

When the legislature has chosen specific procedures for the administrative tribunal,and if it denies an alleged procedural right (i.e. oral hearing), then theCharter is theonly other way to enforce that right:

(a) Admin actors must exercise their statutory authority in accordance w/ theCharter

(b) When an admin decision deprives someone of lie, liberty or security of theperson, then s 7 of the Charter is

engaged(c) The definition of fundamental justice i s informed by the duty of procedural

fairness in administrative law (Sureshgoes into this)

(d) Caution, however, that procedural fairness under administrative law principleapplies much more broadly than s 7.

OVERVIEW OF THRESHOLD ISSUE

- Does procedural fairness apply at all?

(1)Before getting into common law, look at procedures provided bystatute:

Does it spell out a procedure to follow? If yes, advise that to be followed, b/c

dont have to get into murky common law territory. Assuming no, does it exclude requirement of procedural fairness? If it is silent, common law will be implied?

(2) If it is implied, must determine whether it applies to this party. Look at 3 criteriainKnight (says they come fromCardinal):

(i) Nature of decision:(a) How specific it is (does it affect one persons rights, or is it a general

policy decision)(b) The degree of finality (a decision of preliminary nature will not in

general trigger the duty to act fairly,whereas a more final nature may have such an effect);

(c) Decisions of a legislative and general nature do not entail the duty

(ii) Relationship b/w decision maker and party:(a) Whether its regulated by public or private law)(b) What sort of decision maker are we looking at) (is it an individual

relationship or broad based)

(iii) Impact of decision on interested party (usually the most significant doesthe person have an important interest

in the decision)

(3) Look at other things that might exclude duty: e.g. emergency (Cardinal); legislativefunction (Inuit Tapirisat)

RIGHT TO PROCEDURAL FAIRNESS

Prior to Nicholson, administrative decisions could be made without regard to the rulesof natural justice. The dichotomy b/w judicial and administrative decisions resulted inthe preoccupation with categorization. Under the traditional approach, where adminauthorities were given the powers to do X, the person wouldnt have the power toappeal that decision. But after Nicholson, the ability of an admin tribunal to do X is notdeterminative, as the interested person may be afforded with at least some proceduralprotection to be treated fairly.

Nicholson v Haldimand-Norfolk Regional Police Commissioners (Duty of proceduralfairness applies to administrative decision and even if a statute is silent onprocedural entitlements, common law requires at least some opportunity tobe heard before decision):FACTS: 14 months after date of hire, N dismissed, w/out being given reasons andw/out opportunity to make submissions. Appellant applied for dismissal to be quashed,claiming he was entitled to be treated fairly by the Commission. The Police Actgoverns the Commission. The Act allows them to dispense people without reason ifemployed less than 18 months.ISSUE: Can N claim an inherent procedural right in common law, even though thestatute needed to be 18 months for a right to hearing?HELD Just because statute says this, doesnt mean a police officer shouldnt get anyopportunity for a hearing whatsoever. This isnt a judicial decision, it was an admindecision. But the category approach is arbitrary and unfair to individual interests.

If a person subject to pains and penalties, or in some way adversely affected (theconsequences are important), then he should be told the case against him, andafforded an opportunity to be heard. The appellant should have been told why hisservices were no longer required and given an opportunity (whether orally or inwriting) to respond. So, the level of procedural protection is not full natural justice not saying that there has to be a full borne court procedure. N should have beenafforded at least some procedural entitlement, not necessarily what he would havereceived at 18 months.


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Cardinal v Director of Kent Institution (6 years after Nicholoson) (Where there is anapparent emergency, there is no requirement of prior notice and anopportunity to be heard before the decision):FACTS: Prisoners allegedly in hostage taking situation; subsequently transferred toanother facility and placed in segregation by Director, against the recommendation ofthe Segregation Review Board; Director didnt inform Appellants of reasons, nor givethem an opportunity to tell their side of story (procedural concerns)ANALYSIS: No doubt that Director was under duty of procedural fairness (which Courthas affirmed as a common law principle need to look at effect on the prisoners)(Nicholson): e.g. (1) Less likely to instruct/interact with counsel (2) restricts their abilityto do things (a duty of fairness lies in every public authority making admin decisionswhich affect the rights, privileges and interests of an individual)

Question is what the duty may reasonably require of an authority, and what is to beconsidered a breach. Here, given the urgent in nature of the situation, hearing notnecessary (so, where there is an apparent emergency, there is norequirement of prior notice and an opportunity to be heard before thedecision) But once a recommendation to end the segregation of prisoners had beenmade by the review body, the duty of fairness required that the prisonerdirector inform the inmates of his intended decision. Leaving the inmates thereafter segregation, time of urgency passed.HELD B/c of the serious effect of the Directors decision on the appellants,procedural fairness required that he inform them of the reasons for his intendeddecision and give them an opportunity to make representations to him concerningthese reasons. This is the minimal requirement of procedural fairness.

Knight v Indian Head School Division: (Important for outlining the factors used toassess the 3 Cardinalfactors assessing existence of general duty of fairness)FACTS: Ks employment contract stipulated that he could be terminated either by 3months notice or by the Board for just cause. The Board terminated his employmentwithout cause on 3 months notice. Prior to termination, there werenegotiations backand forth between the Boards lawyers and his lawyers. K brought action allegingwrongful dismissal. Went to Sask COA, where K awarded damages as an officeholder under the Education Act, he was entitled to be terminated according toprinciples of procedural fairness, and could only be removed for cause. The Boardappealed.ANALYSIS:

Procedural protections he was seeking didnt exist in statute, but at common law,

its about inherent procedural rights3 Factors for Establishing Common law Duty of Fairness:

(1)Nature of the decision:(a) how specific it is (does it affect one persons rights, or is it a general policy

decision)(b) the degree of finality (a decision of preliminary nature will not in general

trigger the duty to act fairly, whereas amore final nature may have such an effect);

(c) decisions of a legislative and general nature do not entail the dutyHere, the decision made by Board was final and specific, directed at terminating

the employment of therespondent.

(2): Nature of Relationship: In the case of employment relationships, 3 categories:

(a) master-servant (contractual) (b) office at pleasure (dont have to get to thethreshold of cause) (c) office where one can be removed with cause.

TheJUSTIFICATION for granting to the holder of an office at pleasure the right toprocedural fairness is that, whether or not just cause is necessary to terminate theemployment, fairness dictates that the administrative body making thedecisions be cognizant of all relevant circumstances surrounding theemployment and its termination

To give procedural fairness to the one being dismissed would not import into thetermination decision the necessity to show just cause for the employees dismissal, butwould only require the admin body to give the officer holder reasons for the dismissal

and a fair hearing for rebuttal.

(3):The impact of the decision on the terminated party: There is a right toprocedural fairness only if the decision is a significant one and has an importantimpact on the individual. Courts have recognized that the loss of employment againstoffice holders will is a significant decision.

Statutory Framework:- From that, it follows that there was a general duty to act fairly on part of Board.Now, the statutory frameworkmust be examined in order to see if i t modifies this right- The provisions ofThe Education Actmust clearly show (either by express language

or necessary implication) that the respondents general right to procedural fairness hasbeen restricted: Question to ask does the Act explicitly or implicitly excuse theadmin body from acting fairly?. In this case, Act stipulated to look at contract to see

procedure of termination. Here, presumption that parties intended proceduralfairness would apply arises; and no provision which overrides this presumption [So,statute can override common law duty of fairness. But in order to overrule it, it has tobe explicit. Here, majority said the contract was silent]

Content of Duty:- Next, look at the content of the duty - the concept of procedural fairness is variableand its content is to be decided in the specific context of each case. Since therespondent could be dismissed at pleasure, the content of the duty offairness would be minimal, and notice of reasons for boards decision andaffording opportunity to be heard would be sufficient.- Was the duty complied with? If it could be found that the respondent had knowledgeof the reasons for his dismissal, and had an opportunity to be heard, the requirementsof fairness will be satisfied even though no hearing. Flexible threshold means

flexible content. Key requirement is that e/ee knows the reason of the dismissal andhas a chance to respond to it in some way.

HELD - The appellant board made itself sufficiently available for discussionthrough the meetings with the respondent and his lawyer so that eachpartys concerns were made fully known to each other. By inference, therespondent must have known the reasons for his dismissal and was provided withevery opportunity to be heard. No remedy for K, as he was given a fair opportunityto convince the Board that he should keep his job.

MINORITY (Sopinka J) For employment relationship of the category of office held atpleasure, duty of fairness should only arise where an employee can identify in thestatute, regulations or contractual provisions governing the relationship provisions


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which expressly (or by necessary implication) confer upon the employee a right to beheard [Note: This is where Dunsmuir, below, comes in and says, yes, it is primarily anemployment matter]

CONTEXTS WHERE DUTY OF FAIRNESS DOES NOT APPLY(LEGISLATIVE DECISIONS)

Most cases are trying to work through the distinction between the general, ministerialand policy decisions that do not attract procedural entitlement, as opposed toadministrative, specific or personal decisions that do. Where do we draw the line?

The following cases indicate the procedural fairness does not apply to legislativedecisions or functions (but the decision must be constitutional). To determine whethera decision is legislative, look at:

(1) Is there a lis (a dispute between parties)? If its a policy baseddecision, with no core argument,

then its more likely to be legislative(2) Is it between a defined number of parties with defined interests,

or is it something that is morebroad based?)

(3) Is it affecting a broad spectrum or a narrow group of interests(the broader, the more likely

legislative) (A-G v Inuit Tapirisat)

A-G v Inuit Tapirisat (Procedural fairness doesnt apply to legislative decisions

if they are not acting in an administrative body function):FACTS: After application for telephone rate increases in Ontario, Quebec andNorthwest Territories, the Inuit Tapirisat and the National Anti-poverty Organizationappealed to set aside portion of the CRTCs decision. Bell Canada filed reply. InuitTap. preparing final reply, but Governor in Council issued decision denying appeal.Their decision followed months of hearings. The respondents position was founded onthe failure of the Governor in Council (a) to receive actual petitions from therespondents and (b) to afford the respondents the opportunity to respond to the casemade against them by the Minister, the department officials and the CRTC.ANALYSIS:

The central issue is whether there is a duty to observe natural justice in, or at leasta lesser duty of fairness incumbent on, the Governor in Council in dealing with partiessuch as the respondents upon their submission of a petition under s 64(1) of theNational Transportation Act.

While the duty to observe procedural fairness need not be express, it will not beimplied in every case. It is always a question of construing thestatutory scheme as awhole in order to see what degree, if any, the legislator intended the principle to apply.*Decisions of Cabinet/ministers are not automatically excluded fromrequiring procedural fairness: If they are making administrative decisions,then they dont have immunity. What makes a decision legislative:(1) Is there a lis (a dispute betweenparties)? If its a policy based decision, with no core argument, then its more likely tobe legislative (2) Is it between a defined number of parties with defined interests, or isit something that is more broad based?) (3) Is it affecting a broad spectrum or anarrow group of interests (the broader, the more likely legislative)HELD Under s 64, the Cabinet, as the executive branch of the government, wasexercising the power delegated by Parliament to determine the appropriate tariffs for

the telephone services of Bell. It affected a large group of citizens. Unlessotherwise directed in the enabling statute, the Cabinet must be free to consult alsources which Parliament might consult had it retained its function.

The wording adopted by Parliament makes this clear. The Governor in Councilmay act at any time; he may vary or rescind any order, decision, rule or regulationin on his own motion. This is legislative action at its purest. In such circumstances,the Court must fall back upon the basic jurisdictional supervisory role and construe thestatute to determine whether the Governor in Council has performed its functions inaccordance with Parliament mandate. *Basically, the Cabinets power wasdeemed to be legislative in nature, in part b/c the legislation authorized theCabinet to overturn a decision of the CRTC on its own motion legislativeaction in the purest form*.

COMMENT: Cabinet and ministerial decisions are not subject to the legislativeexemption per se, but it will often be easy to characterize Cabinet and ministerialdecisions as legislative, and as a result they will be exempted from the duty.

Reference Re Canada Assistance Plan (Federal government terminatingpayments under cost sharing for social assistance was purely a legislativedecision):FACTS: Under Canada Assistance Plan, federal government made agreements withprovinces to share cost of social assistance programs; agreements could be terminatedby mutual consent or one year notice. Fed gov subsequently limited payments underplan.ANALYSIS:

Court reaffirms that if its a purely legislative decision, the courts wont imposefurther requirements (Question: Whether it is the legislative exception principled, or is

it a way of not interfering with an admins decision).Also, the issue/doctrine of legitimate expectation raised that is, based on the

conduct of the public official, a party has been led to believe that his or her rightswould not be affected without consultation. The appellant concedes that there is nolegal impediment preventing Parliament from legislating, but contends that thegovernment is constrained by the doctrine from introducing the Bill (to limit payments)to Parliament. But there is no support for the position that the doctrine can createsubstantive rights. Where it is applicable, it can create a right to make representationsor to be consulted. *It does not fetter the decision following the representations.Parliamentary government would be paralyzed if the doctrine could be applied toprevent the gov. from introducing legislation in Parliament.HELD - Appeal allowed. The rules governing procedural fairness do not apply to abody exercising purely legislative functions

Wells v Newfoundland (Legislature passing law abolishing a quasi-judicialposition was not bound by duty of fairness):FACTS: The Nwfld Legislature passed legislation abolishing a quasi-judicial position towhich Wells had been appointed. HELD - Wells argument that he should have beenaccorded procedural fairness was rejected by the Court which stated: Legislatures aresubject to constitutional requirements for valid law making, but within theirconstitutional boundaries, they can do as they see fit. The wisdom and value oflegislative decisions are subject only to review by the electorate.

PROCEDURAL FAIRNESS IN EMPLOYMENT TERMINATIONCONTEXTS


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Dunsmuir v New Brunswick (Where contract of employment, dont needadmin/public law; Modifies Knight):FACTS: D hired as Court Services Legal Officer. He was an employee under NBs CivilService Act w/ a written contract of employment. Employment terminated with 4months notice. Cause was not alleged. D filed grievance underPublic Service LabourRelations Act. Grievance adjudicator declared termination void. Province applied forjudicial review. Court of Q.B and COA found the Ds right to procedural fairness notbreached. D appealed.ANALYSIS:

We are of the view that the principles established in Knight relating to theapplicability of the duty of fairness in the context of public employment meritreconsideration. What matters is the nature of the employment relationship b/w the

employee and the public employer.In practice, a clear distinction b/w office holders and contractual employees has

been difficult to maintain. In Knight, majority relied on whether the public employeesposition had a strong statutory flavour but this is an inadequate test. Mostoffice holders positions have contractual employment relationship. If thedistinction has become difficult to maintain in practice, it is also increasingly hard tojustify in principle.

Further, there are 3 main (historical) reasons for distinguishing between officeholders and contractual employees, all of which are problematic. First,historically, offices were viewed as a form of property, and thus could be recovered bythe office holder who was removed contrary to the principles of natural justice.Employees who were dismissed could only sue for damages. This conception of publicoffice has faded. Second, the dismissal from public office involves the exercise ofdelegated statutory power and therefore should be subject to public law controls,

unlike the dismissal of a contractual employee which only implicates a publicauthoritys private rights as an employer. Third, unlike contractual employees, officeholders did not typically benefit from contractual rights protecting them from summarydischarge B/c of this insecurity, it was seen desirable to impose minimal proceduralrequirements to prevent arbitrary dismissal. **But in our view, the existence of acontract of employment, not the public employees status, is the crucial consideration.Where the employment relationship is contractual, it becomes difficult to see how apublic employer is acting any differently in dismissing a public office holder and acontractual employee.

**Administrative law vs Private law: Administrative law is about preventingthe arbitrary exercise of delegated powers (distinguish this with Knight). So whengovernment as party to the contract acts in GOOD FAITH, there is no need foradministrative law to step in, as that exercise of power isnt arbitrary.

Administrative vs Private law Remedies: Private law remedies are more fair

and principled. E.g. there is no duty to mitigate under admin law. As a result, anemployee may recoup much more than theyve lost. Further, it is true that the remedyof reinstatement is not available for breach of contract at common law. But breach ofa public duty of fairness does not lead to full reinstatement. The dismissal decision isvoid ab initio, meaning that the employment is deemed to have never ceased. Theemployer, though, is free to dismiss the office holder again.HELDTo the extent that Knight ignored the important effect of a contract ofemployment, it should not be followed. By imposing procedural fairness requirementson the respondent over and above its contractual obligations and ordering a fullreinstatement of the appellant, the adjudicator erred in his application of the duty offairness.

PROCEDURAL FAIRNESS: CONTENT OF DUTY

TEST FOR DETERMINING THE CONTENT OF THE DUTY

Underlying the following factors, as noted in Baker, is the notion that thepurpose ofthe participatory rights contained is to ensure that administrative decisionsare made using fair and open procedure, appropriate to the decision beingmade and its statutory, institutional and social context, with an opportunityof those being affected by the decision to put forward their views:

(1) Nature of the decision being made and the process followed in

making it:The more the decision is seen as judicial or quasi judicial, the morelikely procedural protections will be like that of a trial model. I.e., is itadversarial, two party type decision? Or, is it more like policy based(guided by discretion)?E.g. In Suresh, deportation hearing had elements of judicialproceeding, it also had an element of discretion, so could go either wayon this factorE.g. In Suresh, it was a prospective decision which courts generallydont engage in, so less judicial, less extensive safeguardsE.g. In Baker, a decision determining whether there were humanitarianand compassionate grounds for exemption from being deported wasnoted to be a highly discretionary decision

(2) The nature/terms of statutory scheme

Greater procedural protections will be required when no appealprocedure is provided within the statute, or when the decision isdeterminative of the issue and further requests cannot be submitted.E.g., if theres a privative clause, then that factor will indicate higherprocedural requirements.In Baker, the decision of whether there are H & C grounds within the

statutory scheme as an exception to general principles of immigrationlaw, which suggests more relaxed requirements under the duty. But,there was no appeal procedureIn Ha, it was noted that simply b/c visa officers were not obliged tointerview all applicants doesnt diminish the procedural protectionsthat they owe to those they do interview (once they interview, theymust do so in accordance w/ duty of fairness).

(3) The importance of the decision to the individual(s) affected:

The more important, and the greater its impact, the more stringentprocedural protections will be mandated. The lesser the impact, thelesser the content (the fewer procedural protections).E.g. In Suresh, apparent that where one faces restrictions on freedom(deportation), suggests high amount of procedural safeguardsE.g. In Markwart, apartment complex demolished, and was tantamountto expropriation without compensation; so, very significant impact(compare/contrast)E.g. In Homex, passing a by law to prevent sub-division of property hada significant impact on party

(4) The legitimate expectations of the person challenging the relevantdecision:


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Did the complainant receive a clear/unambiguous representation thathas induced in him/her a reasonable expectation that they will retain abenefit (CUPE v Ontario)?If a claimant has a legitimate expectation that a certain procedure willbe followed, this procedure will be required by the duty. Also, if aclaimant has a legitimate expectation that a certain result will bereached, fairness may require more extensive procedural rights thanwould otherwise have been given (note, though, that the doctrinecannot lead to protection of that expected outcome)E.g. In Congregation, the Municipality followed an involved process inresponding to the Congregations first rezoning application, in doing sogiving rise to Congregations legitimate expectation that futureapplications would be carefully considered.E.g. In Baker, court denied that the articles of the Convention, basedon the fact that it has been ratified by Canada, gave rise to anreasonable expectation that certain procedures would be followed.This was not equivalent to a government representation. But seeSuresh, where being a signatory to the Convention Against Tortureindicates an intention that they will abide by it.In Ha, visa officer wrote to counsel stating that counsel are neverallowed at interviews. This is inaccurate statement of law, as visaofficers must determine cases based on their facts. Thus, as a result ofa general statement that counsel cannot attend interviews, theappellants may have assumed that it would be futile to attempt to askthe visa officer to reconsider his decision.

(5) Deference to the procedural choices made by the decision maker:

The Court must guard against imposing a level of procedural formalitythat would unduly encumber efficient administration.In Ha, however, counsel was only asking to observe proceedings. Thiswould not unduly encumber efficient administration (see Ha) [In otherwords, depending on the NATURE of the procedure requested, thisfactor may have different results]Like in Baker, where the statute gave the decision maker discretion tonot conduct interviews, was a similar discretion afforded to thedecision maker in this case? If so, deference must be givenSee Congregation de temoins: Municipal decisions on rezoning fallw/in the sphere where Municipalities have expertise beyond thejudiciary. But this doesnt carry much weight where there is no recordto indicate that the Municipality has actually engaged its expertise in

evaluating the applications. Conclusion: Balancing the factors, might say that:Minimal requirements are adequate

Extensive requirements are neededOr something in the middle

Baker v Canada (Minister of Citizenship and Immigration) (Sets out factors to testwhat the content of the duty is)FACTS: B, Jamaican, entered Canada in 1981. Never received permanent residentstatus. Four children (who were all Canadian citizens) while living in Canada. B wassuffering from psychiatric illness. She was ordered deported in 1992. B applied forexemption from requirement to apply for permanent resident outside Canada,pursuant to Immigration Act, based upon humanitarian and compassionate

considerations. B made submissions, through lawyer and Childrens Aid, including thatshe was sole caregiver for 2 of her children, and that the other 2 depended on her foremotional support. Response was contained in a letter by Immigration officer, statingthat there were insufficient humanitarian and compassionate grounds to warrantrequest. Letter contained no reasons for that decision.ANALYIS:(1) Existence of duty of fairness: Both parties agreed that a duty of proceduralfairness applies to H & C decisions. The decision affects the rights, privileges orinterests of the appellant which is sufficient to trigger the application of the duty(Cardinal v Director of Kent)(2) Application ofBaker factors:

Appellant claimed that the duty is affected by the existence of legitimate

expectations (based on the articles of the Convention on the Rights of the Child. Butthere is no reason to conclude that the decision on her H & C would be guided by theConvention.

(a) Participatory rights: Was the failure to accord an oral hearing and give noticeto B or her children inconsistent with the participatory rights required in thesecircumstances? Several factors above enter into the determination of the type ofparticipatory rights required here: (i) an H & C decision is different from a judicialdecision (as it involves exercise of high amount of discretion (ii) the H & C decisionsrole is within the statutory scheme as an exception ---- These factors suggest morerelaxed requirements under the duty. But, (iii) there is no appeal procedure, and (iv)this is a decision that has exceptional importance to the lives involved ---- these lead tothe content of the duty being more extensive. Finally, (v), the Statute providessignificant procedural flexibility for the Minister/immigration officers to not conductinterviews.

Must balance these factors. It cant be said that an oral hearing is alwaysnecessary, as meaningful participation can occur in different ways. Here,B hadchance to submit info (through lawyer) about her position. This satisfiedrequirements of participatory rights.

(b) Provision of reasons**: B submits that the duty of fairness required thatreasons be given by the decision maker. It has been held that in H and C applications,reasons are unnecessary. More generally, common law rule has been that duty offairness doesnt require reasons for administrative decisions. YET,Courts andcommentators have stressed the usefulness of reasons for ensuring fairdecision making (i.e. more articulate and thought out). And that itdemonstrates to parties that their concerns were heard and considered.

But, in Courts view, the duty of fairness may require it in circumstances:*where there is a right to appeal, then there will usually be a right toreasons* (how can you appeal if you dont know why a decision maker decided?) But

Court concluded that this requirement was fulfilled by the notes of Officer Lorenz.

Comment: Statutory provisions are important. Here, s 82.1 and 83 contemplatedjudicial review. It is important to note the signals that legislation can give us as to therelationship b/w admin body and courts. Here, clear statement that courts can hold asupervisory function where they can oversee the procedures undertaken.

DOCTRINE OF LEGITIMATE EXPECTATIONS

Affords a party affected by the decision of a public official an opportunity to makerepresentations in circumstances in which there would be no such opportunity. Basedon the conduct of the public official, a party has been led to believe that his or her


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rights would not be affected without consultation, or that they would retain a benefit,is the gist of the doctrine.

Overview of Doctrine:

- At the end of the day; we need to establish a clear promise by

conduct or statement by a public authority for a legitimate

expectation argument to work. (CUPE v Ont.)

- Legitimate expectation can only be used to get admin body to do

something that admin body can do lawfully (e.g. if it would be against

their statute, it wont work) (CUPE v Ont).

-

You cant use legitimate expectation arguments for substantiveclaims (Mount Sinai Hospital)

Mount Sinai Hospital Center v Quebec (Minister of Health and Social Services)(Legitimate Expectations does not give rise to changes of substantivedecisions):FACTS: For many years the hospital had been functioning in violation of its licence.The Minister of the day said they could still operate if they relocated. They hospital didlots of fundraising and re-located. The govt changed and the new Minister wanted toshut them down because of budgeting issues. The hospital applied mandamus tocompel the Minister to grant the licence.

Majority of SCC held that Minister already exercised its discretion vis--vis thepermit when it promised to issue it, and acted outside competence limits when refusedto issue permit.

ANALYSIS (Minoritys Judgment): Respondent argues that doctrine oflegitimate expectations can be used to compel not only procedural protection, butsubstantive result as well, so long as i ts not contrary to law and is within power ofdecision maker.(1) English vs Canadian Contexts:

(i) English law: English law adherers to the doctrine the way the respondentproposes, but in that jurisdiction, the doctrine performs a number of functions that inCanada are kept distinct. The English doctrine has developed into a comprehensivecode the embraces the full gamut of administrative relief, from procedural fairness (atthe low end), through enhanced procedural fairness, and on to the high end wheresubstantive relief is possible.

Some of the English authorities that the Respondent relies on are at the high end,which represent a level of judicial intervention that our courts have consideredinappropriate

(ii) Canadian law: Canadian cases differentiate between concepts of proceduralfairness and doctrine of legitimate expectation: on one hand, concern that treatingprocedural fairness as a subset of legitimate expectations may complicate thedevelopment of highly flexible rules of fairness; on the other hand, concern that usingMinisters prior conduct as reason for substantive relief may strike the wrong balancebetween private and public interests. Further, the availability and content ofprocedural fairness is generally driven by the nature of the applicants interest andnature of power exercised, while the doctrine looks to the conductof the publicauthority.

(iii) Does this doctrine equal to estoppel?: No requirement for estoppel to arise, asthe applicant who relies on the doctrine may show, but does not have to show, that heor she was aware of such conduct, or that it was relied on with detrimental outcomes.

(iv) Cites Reference re Canada Assistance Plan: Court notes this authority, whichregarded doctrine as an extension of rules of natural justice and procedural fairness,which may afford a party affected by the decision of a public official an opportunity tomake representations (or whatever procedural remedies) in circumstances in whichthere would otherwise be no such opportunity. The Court there shut the door tosubstantive relief.

Court there also noted 2 other limitations: (1) a purely ministerial decision, on broadgrounds of public policy, will normally result in no procedural protection, and an attackon that discretion will have to be deal with upon an abuse of discretion (below); (2)public bodies exercising legislative functions may not be amenable to judicialsupervention

(2) Promissory/equitable Estoppel: Court mentions that this remedy may beavailable against a public authority in narrow circumstances. In English cases, this hasbeen engulfed by the general heading of fairness (rather than law of contract). The USsimilarly stays away from its use in this context. *Then, Court states thatIF this werea private law case, the elements of promissory estoppel are present. PUBLIC LAWESTOPPEL requires an appreciation of the legislative intent embodied in the powerwhose exercise is sought to be estopped.

Application: The Minister is mandated in broad terms to act in the public interest. Asa matter of statutory interpretation, it seems clear from the broad test ofs 138 (thepublic interest) that the legislature intended the Minister to determine the appropriatetransitional arrangements from the old policy to the new policy. *The wording of thestatutory power AND the person who wields it (a Minister) is important. Cases reliedon by respondents generally deal with lesser powers at a lower level of

officialdom. Also, in the same cases, none of them involved a statutory powerof decision framed in broad policy terms.

C.U.P.E v Ontario (Minister of Labour) (Evidence of representations/past practicecannot be equivocal under doctrine AND legitimate expectations cant be indirect contradiction to statutory scheme):FACTS: The Minister announces that they will reduce to sector based position ofappointment which the Union interpreted as the roster method. Minister then appointsretired judges that werent on the roster, breaking tradition. Claim was that legitimateexpectation is breached, because of understanding that Minister would go back to theroster methodANALYSIS:(i) Ministers alleged failure to consult with the unions about the change inthe process of appointments: Unions claim appointment process was so

entrenched, yet he Minster amended it without notice/consultation (the issue here isconsultation). They say that his decision affected the vital interest of union members(earning a livelihood). Court held that assuming the existence of a duty to consult, Ithink it was satisfied parties agree there were extensive meetings at time of Bill136, and Minister signalled reform.(ii) ***Alleged violation of Doctrine of Leg. Exp***.:

Definition: The doctrine of legitimate expectation is an extension of the rules ofnatural justice and procedural fairness. It looks to the conduct of a Minister or otherpublic authority in the exercise of a discretionary power, including practices, conductor representations that can be characterized as clear, unambiguous andunqualified, that has induced the complainants a reasonable expectationthat they will retain a benefit or be consulted before a contrary decision is taken.


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In this case, the evidence of past practice is equivocal, and as a result,the evidence of a promise to return to past practice is also equivocal . TheMinister says the return to the sector based system was HLDAA, including the broadlatitude afforded to him by s 6(5). The unions say the sector based system was the s49(10) roster. Evidence shows that the appeal to the list varied fromMinister to Minister. Whether or not Ministers limited themselves to the listseems to have been a matter of policy/individual preference.

Evidence shows that unions were sceptical of some appointments from the list,which further shows that there was no obligation to use the roster complied under s49(10).

Minister indicated that academics and judges might be used to staff the disputeresolution commission. Two faces expressly mentioned. Court then noted that a

statement by the unions explicitly recognised that there may be appointment of anindividual (not on the list) with broad experience.

**To bind the exercise of the Ministers discretion, the evidence of thepromise or undertaking by the Minster must generally be such as, in aprivate law context, would be sufficiently certain and precise to give rise to aclaim for breach of contract or estoppel by representation **. But theevidence doesnt establish a firm practice in the past of appointing HLDAA arbitrators,or proceeding by way of mutual agreementCOMMENT: Past practice of the government official and quality of evidence of analleged undertaking affect whether the doctrine of legitimate expectation arises.

SPECIFIC PROCEDURAL ENTITLEMENTS

Overarching question is whether X had the opportunity to be heard.

NOTICE

Notice is probably the most important key component of procedural fairness.Failure to give notice at all will always result in the fatality of the decision,because without notice, many other procedural rights cant be exercised.

4 key aspects:

o Form

Written notice is the norm, unless context permits

Not absolutely essential in all cases

You just need to effectively and adequately informed

o

Manner of service Personal service is the norm, unless context permits

Main difficulties are where a number of persons are affected,

how do you effectively give notice to a whole

community/city/province? Also what if you cant even be

sure that the decision will affect one group or another?

Whether that form of delivery will reach the persons affected

(i.e. newspaper is bad for people who dont read newspaper)

May need to be specific depending on complexity

How reliable is the manner of service (mailing may fail, e-mail

server may be clogged, or door-to-door man may be sick)

o Timing

The amount of time will vary depending on the complexity of

the matter, how much info you must gather in your defence,

etc.

o Content

Information that has to be given to affected individuals

When notice is given, what does that notice need to contain?

You need to know the basic information (i.e. this allegation has

been amde against you, the hearing will be on this date, and

what will happen to you if the allegations are found to be true)

Who made the allegation?

Homex Realty v Wyoming (Villiage) (Notice prior to decision where substantialright affected, even where statute is silent)FACTS: Dispute over by-laws; who was going to bear the costs of a newdevelopment? Owner of land (Atkinson) entered into agreement with Village ofWyoming to install municipal services on land, which was to become new subdivision.Under the agreement, the owner was to finance the surfacing of all roads, drainage,among other services. The owner was not permitted to sell land unless agreement hadbeen fully carried out, or the Village consented. Appellent Homex bought most ofsubdivision with Villages consent before installation of most services. Extensivenegotiations to have H pay for costs of service were unsuccessful, and sopassed by-law deeming lots owned by H not to be a registered plan ofsubdivision, without prior notice to H. Relevant legislation governing the Villiage

was the Planning Act, which talked about the procedures required when passing bylaws.ISSUE: Can a municipality just pass a by-law directed at a particular situation thatstacks the deck in the favour of the municipality without complying with the commonlaw duty of procedural fairness?

ANALYSIS:- The courts historically developed proposition that wherever a statute authorizes theinterference with property or other rights and is silent as to whether or not the agencyin question is required to give notice prior to intervention, courts will supply theomission of the legislature and will be required to provide the opportunity to be heard.Today, the principle may apply, depending on circumstances.

- Wont apply if legislative framework precludes such a requirement (unless thelegislation is unconstitutional). **In determining the appropriate interpretation of s

29(3) of the Planning Act, the: (i) statutory framework, (ii) the nature of the actionbeing undertaken and (iii) the general circumstances prevailing at the time of actionmust be taken into account.HELD Here, statute doesnt expressly require notice to the affected landownersPRIOR to passing of by law (i) Nature of the decision: The action taken by the Council was not legislative insubstance, but rather was quasi-judicial in character (e.g., it represented the reportedculmination of the inter partes dispute conducted on adversarial links between Homexand the Council) (therefore, content will be increased, not attenuated

(ii) Concluding that the principle ofNOTICE arises, the court noted that the Statutedoesnt displace the old rule ofaudi alteram partem and the resultant duty in Councilto hear first and decide later. Generally, where procedural fairness is required,notice will be required before a decision is made if there is a significant


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interest affected (in this case, it required the filing of a copy of the by law with theMinister, and it must have been registered and mailed to the RO of the affected lands).*Such a conclusion is facilitated by the further aspect of the case that the Council hasacted as the judge of its own actions in determining the outcome of dispute betweenitself.

COMMENT: While notice prior to a decision will generally arise as a requirement of theduty of fairness, Bishop v Ontario Securities Commission is an example where itwould not in that case, the whole purpose of the Act might have been defeated if thechairman could make an order or ruling under that section only on notice to the personaffected, where a negative consequence upon 3rd parties would arise with the provisionof notice.

In many circumstances, the statute will outline the manner in which notice is to begiven, who is entitled to receive notice, and what the notice is to contain. Wherestatute doesnt specify, procedural fairness requires that the note besufficient to let persons know how they may be affected and to allow foradequate preparations to make representations at a hearing.

Pre-hearing procedural fairness also generally requires that those parties affected bythe administrative proceeding or decision receive disclosure of the case to be madeagainst them. The following case discusses both issues of notice and disclosure.

CPR v Vancouver (If notice is required at common law, must give sufficientnotice, namely notice that allows party to be aware of nature and subjectmatter of hearing):

FACTS: Strip of land in the City of Vancouver which has been owned by the CPR formore than 100 years. For most of that period, the land was used as a railway.However, rail operations ceased in 2002. When it became apparent that railoperations would eventually come to an end, the C.P.R. began to make plans for re-development of the land to permit commercial and residential uses. But the Cityadopted bylaw to designate the corridor as a public thoroughfare for transportation,and to freeze the redevelopment potential and to confine the C.P.R. to uneconomicuses of the land.ANALYSIS: Should the by-law be set aside for procedural irregularities?(i) The Vancouver Charter imposes no statutory requirementto hold a public hearingbefore adopting a bylaw.(i) But given the potential impact of the by law on the CPR, it owed it a duty of fairness.(ii) The City attempted to fulfill this duty through the public hearing process (requiredby the V Charter) the issue is whether meets the standard of fairness re: the Baker

criteria. CPR had 3 complaints re: the hearing process:(1) Flawed NOTICES: Advertisements were made with contact addresses. Notices

given said would designate corridor for purposes only of transportation,including rail, transit etc.. CPR said by not saying by law was designatingprivate land as public, it wasnt enough. ***Court said NOTICE clearly gave theFLAVOUR of the by law being considered. Even though alternative methods mayhave been used, what is required is FAIRNESS, NOT PERFECTION. Test: Whereit can inferred from the circumstances that the party was aware of thenature and subject matter of the hearing, then otherwise insufficientlyspecific notice will be sufficient

(2) Change to the by law after hearing : Alleged that addition of the exclusion ofSkyTrain afterthe hearing, without further hearing, violated legitimateexpectation. Whether City acted contrary to L.E. must be decided in context

of nature of Citys decision making power, the statutory scheme and the Citysrole in arriving at a decision in interest of whole city. The statutory schemeallows city to revise development plans w/out hearing; the decision is notjudicial, but legislative; the City exercises discretionary power in the publicinterest. *These factors may attenuate the duty that might otherwise exist tomeet the expectations of the interested parties. Court was satisfied that Citysprocedure was fair process (e.g. the ODP by-law originally drafted raised noexpectation that the corridor could be used for transportation SkyTrain was buta possibility).

HELD CPR has not made out a case for declaring the by law invalid on proceduralgrounds the Citys conduct in enacting the by law complied with the requirements offair process. Also, the City didnt exceed its powers granted to it by the Vancouver

Charter.

DISCLOSURE

Disclosure is a key component to exercising ones right to be heard, for withoutdisclosure, it will be difficult to present a full case at a hearing

Stinchcombe: The rule for disclosure in trials does not apply to admin decisions, butthe principle underlying that rule still has weight in admin process

Ahani v Canada: General rule is, when individual interests are at stake, proceduralfairness requires at least some level of disclosure.

Suresh v Canada (Minister of Citizenship and Immigration) (Procedural fairness

requires that a person who establishes prima facie a risk of facing torture ora similar abuse must be informed of the case to be meet and a chance torespond and challenge the validity of the information that the decisionmaker is using to base his decision on):FACTS: Refugee claimant faced deportation to Sri Lanka, where he claimed he waslikely to face torture. Minister deported him pursuant to s 53(1)(b) of Immigration Actbecause he thought he was a danger to security of Canada. The appellant presentedwritten submissions and evidence to the Minister, but had not been provided with acopy of the immigration officers memorandum, nor with the opportunity to respond toit orally or in writing.ANALYSIS:The S.C.C applied Baker factors as follows:(i) The nature of the decision: Bears some resemblance to judicial proceedings. Whiledecision is of serious nature and made by individual who evaluated and weighed risks,

its a decision to which discretion must attach. Court concluded that nature of decisionmilitates neither in favour of particularly strong, nor particularly weak, proceduralsafeguards. Also, its a PROSPECTIVE decision, which courts dont really engage in.(ii) The nature of the statutory scheme: Suggests need for strong proceduralsafeguards. Under s 53(1)(b), there is no provision for a hearing, no requirement forwritten or oral reasons, NO RIGHT OF APPEAL. As stated in Baker, greater proceduralprotections will be required when no appeal procedure is provided in the statute, orwhen the decision is determinative of the issue and further requests cannot besubmitted(iii) Importance of the right affected: Appellants interest in remaining in Canada ishighly significant (i.e. risk of torture he may face in Sri Lanka). This factor militates infavour of heightened procedural protections under s 53(1)(b).


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(iv ) Legitimate expectations: Being a signatory to the Convention Against Tortureindicates an intention that they will abide by it.(v) Choice of procedures made by agency: Minister is free under the terms of thestatute to choose whatever procedures she wishes in making a s 53(1)(b) decision.Minister must be allowed considerable discretion in evaluating future risk and securityconcerns. *Need for deference must be reconciled with the elevated level ofprocedural fairness mandated by the serious si tuation of refugees.

On balance, Court held that procedural requirements given to Suresh wereinsufficient (3 strong factors weighing in favour of strong procedural fairnessHELD (i) Procedural fairness requires that a person facing torture or a similar abuse mustbe informed of the case to be meet and a chance to respond and challenge the validity

of the information that the Minister is using to base his decision on. (ii) The exceptionis privilege or similar valid reasons for reduced disclosure, such as safeguardingconfidential public security documents.(iv) ALSO, fundamental justice requires (remember, this is aCharter decision) that anopportunity to be heard existed --- fundamental justice requires that writtensubmissions be accepted from the subject AFTER the subject has been provided withan opportunity to examine the material used against them.

COMMENT: Note that the Minister suggested there was evidence that S wouldnt betortured upon return to Sri Lanka. S and his counsel disagreed with this, yet it wasntdisclosed.

In determining the content of procedural fairness, context is everything. InAhani vCanada(Minister of Citizenship and Immigration), the S.C.C. concluded that Ahani, who

was also to be deported and was not given a copy of the memorandum provided to theMinister, was given a full opportunity to respond to the Ministers case against him.Unlike Suresh, Ahani had not established a prima facie case that he faced torture ifdeported.The S.C.C. returned to the question of disclosure in the national security context inCharkaoui v Canada(Minister of Citizenship and Immigration):

Charkaoui v Canada (Minister of Citizenship and Immigration) (Security certificateinvolves a serious interest engaged similar to those involved in criminal law;thus, duty to disclose all information via infringement of s 7, except forprivileged information)FACTS: C applied for a stay of proceedings relating to the security certificate issuedagainst him under s 77 of the Immigration and Refugee Protection Act. He alleged that

the government breached a duty to disclose info in its possession in a timely way.The process of this is that the Minter has the ability to sign a certificate declaring thata foreign national/permanent resident is inadmissible to enter or remain in Canada ongrounds of necessity, then a judge determines whether this is reasonable. If thereviewing judge determines that the certificate is reasonable, there is no appeal/JR.Charkaoui had been arrested and detained but not received reasons as to whether hiscertificate was reasonableANALYSIS:Distinguishing criminal context from security certificate context: In criminallaw context, disclosure encompasses all relevant information (Stinchcombe). Ingeneral, this principle wont be applied in administrative law context. But where youhave a case where the type of interest engaged is as serious as criminal law (e.g.,

there is a finding of guilt), then full disclosure is required, on the basis ofs 7 of theCharterHELD The destruction of operational notes is a breach of CSISs duty to retain anddisclose information. *This conclusion flows from the serious consequences theinvestigation will have for the life, liberty and security of the named person. Thedesignated judge then provides non-privileged information to the named person.COMMENT: Court also made a statement about privilege. The basis for the privilegeis those things which would be injurious to national security (comes from the Act). Inthe end, what was required was full disclosure of everything to the Judge (notMinister), who would disclose as much as the documents as reasonably possiblewithout being injurious to national security.

Pritchard v Ontario (Human Rights Commission) (Privilege is an EXCEPTION to thedisclosure requirement):FACTS: P was employed, harassed in work place, complained to Human RightsCommission, Commission didnt process complaint. P wanted to challenge decision,and argued that P was entitled to all documentation Commission possessed, includingin house counsels legal opinion.ISSUE: Whether the duty of fairness could compel production of a legal opinion.HELD The privilege, if established, is considerably broad and all-encompassing. Theprivilege is jealously guarded and should only be set aside in the most unusualcircumstances.

Procedural fairness doesnt require the disclosure of privileged legal opinion.

Procedural fairness is required both in the trial process and in the admin law context;in neither area, does it affect solicitor client privilege.

Legislation, which can oust the privilege b/c the privilege is a common law doctrine,will be interpreted restrictively. Solicitor-client privilege cannot be abrogated byinference.

Markwart:FACTS: Appellants owner of apartment building. Building inspected and failed tests,and was ordered to be demolished. Appellants appealed the order pursuant to theCities Act.ISSUE: Disclosure of report which was the basis of Councils decisionHELD - Although appellants aware of issues given in meetings, it doesnt follow thatthey knew the case they had to meet. They ought to have received a copy of thereport on which the Council based its decision. The appellants could not properly

respond w/out knowing how the case was presented to Council by inspector(i.e. the report may/may not have been represented in the meetings). Court held theyought to have had disclosure [Note: what is the difference b/w this case and those inwhich there were opportunities to have discussion which constituted sufficient groundsfor knowing the case to meet?]

CPR v Vancouver (Where relevance of documents is tenuous, then likely pre-hearing disclosure not a requirement)CPR claims that the City failed to disclose information to it, violating the Citys duty totreat CPR fairly. Court said Citys disclosure met this standard (of disclosing materialsprior to hearing). The statute conferred broad planning powers on the City w/outprocedural requirements, yet the City chose to hold a public hearing, and gave CPRsufficient disclosure to allow it to participate in the process. CPR claimed that


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written submissions to City Council from public were not made available to it.Court held that these were made available through the City Clerks office.CPR complained that the City failed to disclose documents related to an investigationby the BC Building. CPR said that this info would have helped them make a morepowerful argument that the by-law was foreclosing options which drew public interest.Court held that the relevance of the documents were tenuous.

RIGHT TO ORAL HEARING

Audi alteram partem, or the right to hear the other side, does not impart the strictrule that there must always be an oral hearing

When is an Oral Hearing Required? Factors to determine if an oral hearing isnecessary:

o Khan, Singh, and Suresh: where a serious issue as to credibilitypresents itself

o Competing Values oral hearing with cross-exam vs. pureinquisitorial method; where complainants trauma in sexualharassment cases of having to face harasser

o Capacity of Individuals language barrier, illiteracyo Impact on Individual more serious the impact more likely to argue

for an oral hearing; complex matters may be better handled in an oralsetting;

o Access to Informationo Nature of Matter & Kind of information that the decision will be

based on if primarily based on technical information, medicalreports etc it might be better to present it in writing. It might beharder to get this information across orally.

Baker v Canada (No presumption of oral hearing): The court rejected Bakersargument that an oral hearing was required. Therefore and oral hearing will not alwaysbe required for procedural fairness

o There is no longer even a presumption of oral hearingo She wanted to appear in person but the court determined written

submissions were sufficient in this matter she was adequately heard.

Singh et al v Minister of Employment and Immigration (Even in the face of clearstatutory direction as to how procedure is to be conducted, the decision todeny a party the right to oral hearing where there is a Charterright at stake,in addition to their credibility being at issue, a right to an oral hearinginvariably will follow):FACTS: 7 claimants had no opportunity to present their cases in oral hearings beforeeither the decision maker at first instance or the Immigration Appeal Board on appeal.The statutory scheme provided for the possibility of an oral hearing, but onlybefore the IAB on appeal, and only if the IAB concluded that there werereasonable grounds to believe that the claimant could make a successfulclaim at an oral hearing. The appellants allege that the procedural mechanisms inthe Act deny them of their rights under the Charter.Procedural process: Senior immigration officers examines under oath Transcriptsent to parties Refugee Status Advisory Committee uses transcript and own info todecide Advise in writing Claimant has right to lawyer.

ISSUE: Whether the procedures of the Immigration Act for adjudicating claims ofpersons claiming refugee status deny claimants rights to which entitled under s 7.

ANALYSIS:Wilson J found that this authority (to determine the probability of success under s 71)is one that Parliament clearly conferred upon the Board and is sound. The proceduresset out in s 71 were followed correctly in this case. Thus, if the appellants are tosucceed, they must succeed on the basis ofCharter requirements [Note theconventional wisdom that resort to Charter should be reserved for cases whereordinary statutory interpretation cannot provide remedy]. Application ofCharter:(i) Section 7 requires that everyone has the right to life, liberty, and security of the

person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice(ii) Everyone encompasses everyone physically in Canada(iii) Do the appellants fall within the scope ofs. 7? Must first determine what rightsappellants have under the Act. One of these includes right not to be returned to acountry where his life or freedom would be threatened. Security of the person mustencompass freedom from threat of physical punishment or suffering as well asfreedom from such punishment itself. Thus, there is a deprivation of security of person(iv) *** Is fundamental justice denied by the procedures? Counsels agreed thatat a minimum the concept of fundamental justice includes the notion of proceduralfairness. So, do the procedures set out in the Act for the adjudication of refugee statusmeet this test of procedural fairness (i.e. do they provide an adequate opportunity fora claimant to state his case and know the case he has to meet)? **Where interestsunder s 7 are at stake, which are of such importance, an oral hearing will

INVARIABLY be required, particularly where credibility of the party is atissue.

Also, where credibility is at stake, as it almost always is in refugeecases, its difficult to conceive of a situation where the claimant would notbe entitled to prior discovery of the Ministers case and an oral hearing.

DELAY

In all of these cases, there is potential for the individual complained of to suffer

prejudice from his peers, family, and colleague the longer the proceedings are

delayed.

Blencoe v British Columbia (Human Rights Commission) (The framework foranalysing DELAY and specific factors):FACTS: B, Minister, has allegations made of sexual harassment against him, andcomplainants filed complaint with human rights commission. Hearing was scheduledto be held over 30 months after initial complaint made . In meantime, B lost Cabinetposition, did not stand for re-election, and suffered depression. B made application forhearing to be stayed, claiming human rights commission had lost jurisdiction b/c ofunreasonable delay. CoA directed that proceeding be stayed. Human RightsCommission appealed.ANALYSIS (Majority Judgment):Framework for Analysing Delay:

Generally, for delay to be a denial of procedural fairness, the prejudice will involvecircumstances related to the hearing itselfand, thus, will be an abuse ofprocess (i.e. delay causes failure to bring all evidence forward).


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(3) Cultivates the confidence of citizens in public officials (Congregation destemoins)

(4) If you dont know why a decision maker decided, then it will be difficult toappeal decision

In certain circumstances the duty of procedural fairness will require the provision of awritten explanation for a decision. The strong arguments demonstrating theadvantages of written reasons, like:

o where the decision has important significance for the individual,

o when there is a statutory right of appeal,

o any other significant circumstances that call for reasons (Baker)

Congregation des temoins de Jehovah de St-Jerome-Lafontaine v Lafontaine(Requirement of reasons):FACTS: The Congregation requested a zoning variance from the Municipality on 3occasions. First one, they denied, and gave reasons. The problem lies within theresponse to the 2nd and 3rd applications (see bellow).ANALYSIS:- Whether the Municipality of the village of Lafontaine lawfully denied an application forrezoning to permit the Congregation to build a place of worship; specifically, does theduty of fairness require the Municipality to give the Congregation reasons for refusingthe rezoning the application? Baker analysis follows.(1) Nature of the decision: Decision is made by an elected council accountable toits constituents. The Municipality must act in the public interest. What is in thepublicinterest is in the discretion of the Municipality. Provided they act honestly and w/inthe limits of statutory powers, the court should not interfere. But the Municipality

cannot deny an application in an arbitrary way.(2) Statutory Scheme and its Provisions: In this case, the Act respecting LandUse and Planning Development grants Municipality authority to consider rezoningapplications. *The absence of an appeal provision demands greater protections.(3) Importance of Decision on Interested Party: *The stringency of proceduralprotections is directly proportional to the importance of the decision. Here, thedecision affects the Congregations practice of its religion, which is of primaryimportance and protected under the Charter.(4) Legitimate Expectations of the Interested Party: Where prior conductcreates for the claimant a legitimate expectation that certain procedures will befollowed as a matter of course, fairness may require consistency. *Here, Municipalityfollowed an involved process in responding to the Congregations first rezoningapplication, in doing so giving rise to Congregations legitimate expectation that futureapplications would be carefully considered.

(5) The Nature of Defence Due to the Decision Maker: Municipal decisions onrezoning fall w/in the sphere where Municipalities have expertise beyond the judiciary.But this doesnt carry much weight where there is no record to indicate that theMunicipality has actually engaged its expertise in evaluating the applications.2nd Zoning Application: Congregation applied for rezoning a new lot. Municipalitydenied request summarily, without giving reasons. They noted that there were P-3 lotsavailable, but didnt direct C to them. Had C merely reapplied for the first lot, reasonsmay not have been expected. The findings of the first study that analysed the impactof rezoning on the first lot werent applicable to the 2nd lot (i.e. tax impact). Newevaluation was required, together with an explanation.3rd Zoning Application: This request related to the same lot subject of secondrequest. C provided letters with its fruitless attempt to find P-3 zoning. M denied

application again, offering no reasons. This time didnt even tell that P-3 land wasavailable. *M argued that since Legislature conferred discretion upon it, it was notrequired to offer any justification for refusing application.HELD M breached the duty of procedural fairness it owed to C a dutyheighted by the expectations established by the Municipalities own conductand the importance of the decision. M acted in a manner that was arbitrary.Cs applications were in good faith on the advice received from the municipal inspectorfollowing the first application. C offered evidence of goof faith searches for P-3land evidence M didnt bother to comment on.

REMEDIES

If X successfully challenges the decision on procedural fairnessgrounds, first must question whether the challenge was on appeal orthrough judicial reviewE.g. where appellant was denied procedural fairness due to lack ofcounsel, the case was sent back to a different decision maker to holdanother interview and reconsider the appellants case (Ha)Certiorari (on JR)Allow appeal (if statutory right of appeal) and set aside, for example,the resolutions made and remit the matter back to the board (E.g.Markwart)Costs (party to party or solicitor client)

PROCEDURAL FAIRNESS:BIAS, IMPARTIALITY AND INDEPENDENCE

Five types of bias:(1) The decision maker has a financial interest in the outcome;(2) The decision maker has a personal relationship with one or more of the parties(e.g. being affiliated with one of the parties associations of family, friends orprofessional connection)(3) The decision maker has previous knowledge of or involvement in the matter to bedecided;(4) The words or actions of the decision maker suggest a prejudice or partiality(ACTUAL BIAS)(5) The institutional arrangements prevent an impartial rendering of decisions

Remedies:Bias or lack of independence will result in the quashing of the decision and remitting itback to a different decision maker (who is equally qualified)

IMPARTIALITY AND BIAS

People when making decisions are influenced by all kinds of things and experiences intheir life. There are only certain things about which we are worried which might affecttheir impartiality.

Actual Bias


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Newfoundland Telephone Co. v Newfoundland (Spectrum of neutrality; Test forreasonable apprehension of bias; Pre hearing vs At hearing/Post hearingbias):FACTS: Public Utilities Act gives the Board the power to regulate NTC. Thecommissioners of the board are appointed by the Lieutenant Governor in Council. TheStatute says that commissioners cannot be employed by, or have any interest in, apublic utility. Andy Wells was appointed as commissioner to the board. Earlier, Wellshad acted as an advocate for consumers rights, and admitted that he wanted to playan adversarial role on the board champion consumer rights.

The board commissioned an accounting firm to provide cost analysis of NTC, andin light of report of the Board, and decided to hold a public hearing. Prior to hearing,Wells had described the pay/benefits of NTCs executives as ludicrous/unconscionable.

The Boards decision on August 3 (i) disallowed the cost of the enhanced pensionplan for certain senior executive officers and (ii) directed the appellant to refund itscustomers in the former operating territory sums which were charged as expenses tothe appellants operating account to cover the cost of the enhanced pension plan (iii)and made no order re: individual executive salaries. Wells and two others constitutedthe majority.

CoA found that there was a reasonable apprehension of bias (based on thestatements made), but they looked to the actual result of the decision (and said that itwasnt biased).

ANALYSIS:(1)Spectrum of Neutrality:

There are a diversity of boards. Those that are adjudicative will be expected tocomply with standard applicable to courts (i.e. there should be no reasonable

apprehension of bias). At the other side, there are boards with popularly electedmembers (with those boards, the standard will be more lenient).

The Board has been given supervision of the provincial public utilities. The Board,when it believes any charges or expenses of utility are unreasonable, may on its ownwhim investigate. And when determining whether any rate or charges isunreasonable, the board will assess the charges in economic terms. In thesecircumstances, the board is dealing with policy issues, not legal questions(and so, will come closer to legislative decisions rather than adjudicative).

Spectrum of Neutrality

Fewer procedural protections Moreprocedural(More difficult to disqualify decision (Impartialityrequirement more like Courts)

Maker bias)

- function is policy laden - primaryfunction adjudicative

- political dimension - apply legaltest to resolve dispute

- elected decision maker - statutepoints to greater impartiality

- important to have diversity of viewpoints- investigative- statute suggests diversity of decision maker- note: policy will often include broad range of interests

; Polycentric considerations, and not just 2 sides

(2) Test for reasonable apprehension of bias: Would a reasonable, informed person,viewing the matter realistically and practically and having thought the matter through,concluded that it is more likely than not that the decision maker (consciously orunconsciously) will not decide fairly [so, reasonable person test].

(3)Pre-hearing Statements: A WIDE licence must be given to board members in theinvestigative stage to make public comment. At the investigatory stage, statementsmanifesting a mind so closed as to make submissions futile would not constitute abasis for raising an issue of apprehended bias.

(4)Once the Hearing Date is Set; At the Hearing; After the Hearing: At these points,the parties were entitled to expect the conduct of the commissioners wouldbe such that it would not raise a reasonable apprehension of bias . Althoughthe standard for a commissioner sitting in a hearing need not be as strict as a judge ata trial, procedural fairness must be maintained. The statements made by Wells duringand after the hearing lead to the conclusion that a reasonable person apprised of thesituation would have an apprehension of bias. Wells demonstrated he had aclosed mind on the subject. It follows that the hearing proceeded unfairly and wasinvalid.

International Woodworkers of America v Consolidated Bathurst Packaging(Impartiality in relation to being influenced by others who have not heardthe evidence does the full board meeting create an improper influence?):FACTS: The Labour Board heard matters in a panel of three. An issue arose as to

whether the parties were acting in good faith (a key issue that labour relations dealwith). The parties brought up issue of whether a previous precedent should be reliedon. To discuss the issue, the panel decided to convene a full board meeting to discussthe issue. Complainant raises issue of impartiality.ANALYSIS:Two potential problems w/ having a full board:(1) Argument that principle person who judges should be the one that heard theevidence is breached; influence is improper;(2) If there is new arguments that the new panel brings up, then ei ther parties mightnot be able to respond (linkage of right to be heard).

Issue: does the full board meeting create an improper influence (i.e. impartialityconcern)?

In response, court looked at the following:(1) Advantages/Disadvantages of having a full board meeting:Advantages: (a) Benefiting from acquired experience of all members, chairman,vicechairmen etc; (b) Different panels will decide similar issues in a different manner(and the outcomes of disputes shouldnt depend on the identity of the panel), sooutcome of consistency; (c) policy requires change, and this forum gives opportunityto change policy; (d) more likely to have early resolution if there is consistency;(e)extension of normal acceptable research process; Disadvantages: (a) Evidence andideas can be obtained from people other than parties; (b) Reduction of decisionmakers responsibility (here, its not a broad public consultation, so you probably donthave the same wacko concern throwing out stuff that really isnt material);


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(2) As a general rule, all the members who will actually participate in the decisionmust have heard all the evidence as well as the arguments presented by the parties(except where legislation states otherwise)

(3) Look at what are the institutional constraints on the tribunal, if any (e.g. this boardheard so many cases per year). A full board hearingwas deemed a practicalimpossibility.(4) Definition of judicial independence: complete liberty to decide a given caseaccording to ones conscious on the basis of laws and evidence w/out interference ofother persons (this is the higher water mark of judicial independence)

(5) Even though complainant says that full board meeting would violate that definition

(possibility of persuasion), Court disagrees, citing:

(a) Procedural safeguards : No vote requirement; attendance was voluntary/wasnttaken down/no minutes were taken

(no official document); didnt challenge the facts; SCC agrees w/ Chairman. Fullboard meeting wasnt improper.

(b) Its ok to decide policy issues, if its the panel thats still deciding the finalmatter, and there is no message that the

will of the majority will prevail. Therelevant issue is not whether the practice ofholding f.b. meetings can cause

members to change their minds, but whether this practice impinges on the abilityof members to decide according to

their own opinion.(c) So long as no new evidence is introduced w/out the presence of the parties

Comment: This gives a look at how to analyse impartiality. We dont apply a stricttest such as that in Baker, and its more of a broad level, principal based analysis.

Financial Bias and Impartiality

Canadian Pacific Ltd v Matsqui Indian BandCP alleges existence of financial bias as band members on appeal board have afinancial interest in the matter. But Court said: (i) this is a community interest, not anindividual interest and (ii) you need more than mere speculation to have a finding ofbias in this case, CP hadnt even gone through the process, yet CP was claiming thisbias. Financial bias: has to be a personal and distinct financial interest distinct to the decision maker. If there is financial bias, it will likely be fatalto the decision, unless statute authorizes financial interest.

Institutional Bias and Impartiality

o EX: Two stages of hearing process; stage one formal hearing and

decision making process, then if applicant is not satisfied then they go

to stage two, they appeal to another group for re-consideration. If it

includes members of the previous committee on appeal, this may be a

bias issue

o EX: If same people carry out more than one function (i.e. investigate,

make decision about prosecution and then sit on hearing may lead to

bias);

o EX: If staff lawyer advices each stage, then its might be institutional

bias);

o EX: Internal consultations a person who makes decision should make

decision based on info theyve heard. If there is consultation, that may

give rise to institutional bias.

Moore v New Brunswick Real Estate Assn:FACTS: M was a licensed real estate agent who was charged w/ professionalmisconduct for failing to submit an offer to purchase to his client. A complaint wasmade, and the matter was brought before the Real Estate Associations DisciplineCommittee. At the discipline hearing the chair of the committee suggested that they

should deal with the penalty issue AT the hearing in case the committee found thedefendant guilty. Ms counsel initially objected but eventually agreed to proceed w/the issue. M found guilty.ANALYSIS:(1) Institutional Bias Test: Its about how the tribunal operates as opposed to theidentity of one of the decision makers. The TEST is: would a well-informedperson, viewing the matter realistically and practically, and having thoughtthe matter through, have a reasonable apprehension of bias in a substantialnumber of cases?

(2) Allegation of Bias (Here): Having the penalty hearing within the guilt findingprocess may not give accused notice on what they are making submissions about (i.e.of the 5 offences charged, which one are they making the submissions on?); also,when they are making submissions about penalty, they may be interpreted

as admitting to guilt**

(3) No Institutional Bias Found: Court looked at these factors:(a) Not contrary to the legislation (ie. nothing in the legislation requiring two

hearings);(b) Administrative realities (costs); e.g., every real estate needs to be called in for

a hearing, so we cant separate thetwo hearing issues to two days

(c) Importance of our interest affected (what are the penalties?), e.g., M was finedand had to pay $ 2000; its not the

end of his career(d) This is fairly common practice w/ Boards(e) Can argue in the alternative, so people can avoid some of the bias;(f) Court looked at two BC cases, noting that in those cases, the types of

allegations pursued before securitiesregulator, and the consequences of a finding of professional

misconduct have the air of quasi-criminalproceedings, then a separate hearing may be needed.

INDEPENDENCE AND BIAS

Overarching question is, again, whether a reasonable apprehension of biasexists because of the alleged inadequacy of independence

Independence refers to a tribunals ability to decide matters without improperinterference.


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FACTS: Liquor licence violations occurred. OP claimed that appeal panel didnt haverequisite amount of independence. CoA held that panel adjudicated claims andimposed penalties so required high degree of independence. CoA concluded that atpleasure appointments to administrative agencies which impose sanctions forviolations of statutes cannot satisfy security of tenure. Thus, the board lackednecessary degree of independenceISSUE: Whether members of the Liquor Appeal Board are sufficiently independent torender decisions on violations of the Act and impose penalties it provides.ANALYSIS:(1) Absent constitutional constraints, the degree of independence required of aparticular government decision maker is determined by its enabling statute.Confronted w/ silent or ambiguous legislation, courts infer that Parliament intended the

tribunals process to comport w/ principles of natural justice. Must defer to thelegislators intention in assessing the degree of independence required.Legislation allowed service at pleasure (no security of tenure) and part timepositions. B/c the intention is clear, there is no room for importing commonlaw doctrines of independence.(2) Administrative tribunals dont have the same level of independence of executive ascourts(3) When legislation is silent or ambiguous, courts will infer that legislators intendedthe tribunal to be as independent and impartial as required by principles of naturaljustice [*Note, there is room to argue whether the statute is ambiguous/clear](4)Qualification: If there are any relevant constitutional constraints, the enablingstatute can be attacked even if its intentions are clear.(5) Constitutional law arguments (which the Court rejected): (1) Judicial independenceis at root an unwritten constitutional principle recognized and affirmed by the

preamble to the Constitution Act 1867 (2) Constitutional guarantee of independenceextends as a matter of principle to administrative tribunals, given the preamblesreference to a constitution similar in principle to that of the UK(6) Application: The statute specifically said members will hold office at pleasureand part time positions, and therefore overrides common law security of tenurearguments.

COMMENT: Re: constitutional attacks on clear legislative provisions, it is possible toalso raise s 7 arguments when the circumstances are appropriate (i.e. Suresh). Whatabout s 11(d) (i.e. right to a fair and public hearing by an independent and impartialtribunal)? Elle v Alberta says it only applies to criminal offences; Reference reRemuneration of Judges of the Provincial Court of PEI says that 11(d) is limited tooffences, and likely only applies to criminal offences.

SUBSTANTIVE JUDICIAL REVIEW AND STANDARD OF REVIEWANALYSIS

Crevier v A.G. (Quebec) et al (Constitutional duty of court to ensure that publicauthorities do not overreach their lawful powers enabled by statute):FACTS: Tribunal set up to supervise all self-governing professions. Professionaltribunal to be appeal mechanism. Challenge by C who was subject to one of thesedecisions, and then decided to challenge jurisdiction to be final. Privative clauseexisted. Normally, courts look at clause and shows clear legislative intent admintribunal not subject to interference by the courts.

ANALYSIS: Why doesnt that clear privative clause prevent courts from looking atdecision?(1) Putting together this provincial tribunal whose only function was to review [.]was tantamount to a provincial government setting up a s 96 court which, however, isthe function of the federal government.(2) Superior courts can always review administrative tribunal for matters related toJURISDICITON, b/c if admin tribunal has last word on jurisdiction, then it would havecompletely supplanted the courts(3) Therefore, there is a CONSTITUTIONAL REASON why there is judicial review. Courtshave the inherent function that the laws are complied with. So when it comes to anarea of jurisdiction, tribunal can express an opinion (i.e. to the tribunal first), but thatdecision can always be reviewed and changed by our courts, b/c thats a question of

law that the court supervises.(4) Privative clauses indicate level of deference but in the end, that doesnt preventthe court from supervising the jurisdiction from the admin decision maker.Comment: Court has an indirect authority to review decisions of statutory delegateas a result of presumption that admin decision maker has limited jurisdiction, andsuperior courts have inherent jurisdiction to ensure that admin body is within itsjurisdiction. When the legislature gives power to an admin tribunal, if the legislaturegives them too much of the wrong kind of power, they can start to look like superiorcourts and that infringes on the entrenchment of s 96 courts

Bell v Ontario Human Rights Commission (Jurisdictional Question): Idea developedthat any question can be turned into a preliminary question (namely a jurisdictionalquestion); and once its turned into a jurisdictional question, tribunal only retainsjurisdiction when its right

CUPE v NB Liquor Corporation (Not every question is a jurisdictional one Courtscan interfere only where the admins decision was PATENTLYUNREASONABLE and if no convincing reasons can be put forward):FACTS: The main controversy was the interpretation ofs 102(3) of the Public ServiceLabour Relations Act, which says that during a strike, employer shall not replacestriking e/ees or fill their position w/ another e/ee and no e/ee shall picket, parade orin any manner demonstrate in or near any place of business of the e/or. Canmanagers fill in/hire replacement workers? Union said they cannot.ANALYSIS:- Traditional approach was to apply a correctness std to a decision of a tribunal onwhat they call a jurisdictional question. This meant that lawyers were debating overwhat a jurisdictional question was. Labelling something as jurisdictional just isnt clearand its impractical

- Court here said that when youre interpreting legislative provisions, there will oftenbe more than one reasonable answer:(1) Privative clause in this case showed clear statutory direction that public sectorlabour matters be promptly and finally decided by the Board. This ties into the specialknowledge of the Board in dealing with collective bargaining issues. The interpretationof s 102(3) logically lies at the heart of the specialized jurisdiction given to the Board.The Board isnt required to be correct in its interpretation, and if it erred,such an error would be protected by the privative cl

Admin Template (Not an Nca Summary) (1)

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