Baker v. Canada (SCC, 1999)

The appellant, a woman with Canadian-born dependent children, was ordered deported.  She then applied for an exemption, based on humanitarian and compassionate considerations under s. 114(2) of the Immigration Act, from the requirement that an application for permanent residence be made from outside Canada.  This application was supported by letters indicating concern about the availability of medical treatment in her country of origin and the effect of her possible departure on her Canadian-born children.  A senior immigration officer replied by letter stating that there were insufficient humanitarian and compassionate reasons to warrant processing the application in Canada.  This letter contained no reasons for the decision.  Counsel for the appellant, however, requested and was provided with the notes made by the investigating immigration officer and used by the senior officer in making his decision.  The Federal Court -- Trial Division, dismissed an application for judicial review but certified the following question pursuant to s. 83(1) of the Act:  “Given that the Immigration Act does not expressly incorporate the language of Canada’s international obligations with respect to the International Convention on the Rights of the Child, must federal immigration authorities treat the best interests of the Canadian child as a primary consideration in assessing an applicant under s. 114(2) of the Immigration Act?”  The Court of Appeal limited its consideration to the question and found that the best interests of the children did not need to be given primacy in assessing such an application.  The order that the appellant be removed from Canada, which was made after the immigration officer’s decision, was stayed pending the result of this appeal.

Held:  The appeal should be allowed.

Per L’Heureux-Dubé, Gonthier, McLachlin, Bastarache and Binnie JJ.:   Section 83(1) of the Immigration Act does not require the Court of Appeal to address only the certified question.  Once a question has been certified, the Court of Appeal may consider all aspects of the appeal lying within its jurisdiction.

The duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rights affected.  The purpose of the participatory rights contained within it is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision-maker.  Several factors are relevant to determining the content of the duty of fairness:  (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3)  the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself.  This list is not exhaustive.

A duty of procedural fairness applies to humanitarian and compassionate decisions.  In this case, there was no legitimate expectation affecting the content of the duty of procedural fairness.  Taking into account the other factors, although some suggest stricter requirements under the duty of fairness, others suggest more relaxed requirements further from the judicial model.  The duty of fairness owed in these circumstances is more than minimal, and the claimant

and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered.   Nevertheless, taking all the factors into account, the lack of an oral hearing or notice of such a hearing did not constitute a violation of the requirement of procedural fairness.  The opportunity to produce full and complete written documentation was sufficient.

It is now appropriate to recognize that, in certain circumstances, including when the decision has important significance for the individual, or when there is a statutory right of appeal, the duty of procedural fairness will require a written explanation for a decision.  Reasons are required here given the profound importance of this decision to those affected.  This requirement was fulfilled by the provision of the junior immigration officer’s notes, which are to be taken to be the reasons for decision.  Accepting such documentation as sufficient reasons upholds the principle that individuals are entitled to fair procedures and open decision-making, but recognizes that, in the administrative context, this transparency may take place in various ways.

Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias, by an impartial decision-maker.  This duty applies to all immigration officers who play a role in the making of decisions.  Because they necessarily relate to people of diverse backgrounds, from different cultures, races, and continents, immigration decisions demand sensitivity and understanding by those making them.  They require a recognition of diversity, an understanding of others, and an openness to difference.  Statements in the immigration officer’s notes gave the impression that he may have been drawing conclusions based not on the evidence before him, but on the fact that the appellant was a single mother with several children and had been diagnosed with a psychiatric illness.  Here, a reasonable and well-informed member of the community would conclude that the reviewing officer had not approached this case with the impartiality appropriate to a decision made by an immigration officer.  The notes therefore give rise to a reasonable apprehension of bias.

The concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries.  Administrative law has traditionally approached the review of decisions classified as discretionary separately from those seen as involving the interpretation of rules of law.  Review of the substantive aspects of discretionary decisions is best approached within the pragmatic and functional framework defined by this Court’s decisions, especially given the difficulty in making rigid classifications between discretionary and non-discretionary decisions.  Though discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter.

In applying the applicable factors to determining the standard of review, considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, and the considerable discretion evidenced by the statutory

language.  Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division, and the individual rather than polycentric nature of the decision also suggest that the standard should not be as deferential as “patent unreasonableness”.  The appropriate standard of review is, therefore, reasonableness simpliciter.

The wording of the legislation shows Parliament’s intention that the decision be made in a humanitarian and compassionate manner.  A reasonable exercise of the power conferred by the section requires close attention to the interests and needs of children since children’s rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society.  Indications of these values may be found in the purposes of the Act, in international instruments, and in the Minister’s guidelines for making humanitarian and compassionate decisions.  Because the reasons for this decision did not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of the appellant’s children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation.  In addition, the reasons for decision failed to give sufficient weight or consideration to the hardship that a return to the appellant’s country of origin might cause her.

Per Cory and Iacobucci JJ.:  The reasons and disposition of L’Heureux-Dubé J. were agreed with apart from the effect of international law on the exercise of ministerial discretion under s. 114(2) of the Immigration Act.  The certified question must be answered in the negative.  The principle that an international convention ratified by the executive is of no force or effect within the Canadian legal system until incorporated into domestic law does not survive intact the adoption of a principle of law which permits reference to an unincorporated convention during the process of statutory interpretation.

Ref. Re Residential Tenancies Association (SCC, 1979)

The Ontario Legislature enacted The Residential Tenancies Act, 1979, to come into effect on proclamation. The Act contained a legislative code to govern landlords and tenants and established the Residential Tenancy Commission to oversee and enforce the newly enunciated rights and obligations. The Executive Council, responding to questions concerning the authority of the Legislature to make orders evicting tenants from residential premises and to require landlords and tenants to comply with obligations imposed under the Act, referred two questions dealing with those issues to the Ontario Court of Appeal. That Court concluded that it was not within the legislative authority of Ontario to make eviction orders and compliance orders as provided in The Residential Tenancies Act, 1979. This Court was only concerned with the constitutional validity of two powers, the subject matter of the reference, and not with the soundness of the overall legislative scheme.

Held: The appeal should be dismissed.

Royal Commission Reports and Reports of Parliamentary Committees made prior to the passing of a statute were admissible to show the factual context and purpose of the legislation. The practice adopted in the Anti-Inflation Reference of giving timely directions establishing the

extraneous materials to be admitted should be followed. Material relevant to the issues before the Court and not inherently unreliable or offending against public policy should be admissible, subject to the provisio that such extrinsic materials are not available for the purpose of aiding in statutory construction.

Section 96 of the British North America Act limited provincial competence to make appointments to a tribunal exercising s. 96 judicial powers and implicitly limited provincial competence to endow a provincial tribunal with such powers. That section, however, could no longer be construed as a bar to a province seeking to vest an administrative tribunal with ancillary “judicial” powers formerly exercised by s. 96 courts, subject to the qualification that the judicial function not be isolated from the rest of the administrative structure of the legislation.The test was to be formulated in three steps. The first involved consideration, in light of the historical conditions existing in 1867, of the particular power or jurisdiction conferred upon the tribunal. The matter ended there if the power was not broadly conformable to the jurisdiction formerly exercised by s. 96 courts. If, however, the power were identical or analogous to a power exercised by a s. 96 court at Confederation it became necessary to proceed to step two. The second step involved consideration of the function within its institutional setting to determine whether the function was still “judicial”. The subject matter rather than the apparatus of adjudication was determinative and only if the power could still be characterized as judicial was it necessary to proceed to the third step—a review of the tribunal’s function as a whole in order to appraise the impugned function in its entire institutional context. A provincial scheme was only invalid where the adjudicative function was a sole or central function of the tribunal so that it could be said to be operating like a s. 96 court.

Applying step one the Court found that the powers conferred on the Commission were in broad conformity with those historically exercised by the s. 96 courts before and after Confederation. The argument that the power to order eviction had been conferred before Confederation on County Court judges as persona designata, and that that power and by analogy the power to make orders of compliance were therefore outside the superior or county court structure, went too far. The jurisdiction over overholding tenants in pre-Confederation legislation was merely a modification of the traditional jurisdiction on ejectment exercised by the superior courts. The County Court judges acting under the over-holding tenants provisions were acting qua judge rather than as persona designata. The submission that the Commission’s jurisdiction was analogous to that exercisable by courts of summary jurisdiction rather than by s. 96 courts was misconceived. Provinces could not avoid the limitations of s. 96 by taking a function of a s. 96 court, simplifying procedural matters, and then transferring the jurisdiction to a non s. 96 tribunal.

Proceeding to step two the Court found that the impugned power to order eviction or compliance, viewed in its institutional setting, remained essentially a “judicial power” exercised in all cases in the context of a lis between parties. The Commission in deciding contractual and property rights as between individual landlords and tenants also determined rights other than those relating to land and property. Each case involved analysis of law, an application of law to the facts, and a judicial decision and subsequent order.

The third step examined the inter-relationship between the impugned “judicial” powers and other powers under the Act. The central function of the Commission was the resolution of disputes, in the final form by a judicial form of hearing between landlords and tenants. The Commission’s other functions were either ancillary to this central function, or were separate and distinct from it and bore no relation to it. There was no broad legislative scheme to subsume the Commission’s judicial functions. The whole of s. 96 court’s jurisdiction in a certain area, however limited, was transferred to provincially appointed officials.

Cook v. Alberta (Minister of the Environment) – 2001 ABCA

Administrative law --- Delegation of decision-making power — GeneralApplicants sought to lease public land in order to operate campground — Land was subject to 20-year forest management agreement between province and company which permitted Minister to withdraw lands from agreement at any time at his discretion — Applicants were told that lease application was cancelled because they had failed to negotiate land withdrawal with company and there had been negative public response — Applicants appealed decision to cancel lease application — Minister advised applicants that appeal committee would make final land use decision regarding status of lease application — Appeal Committee's report recommended that Minister withdraw land from agreement resulting in lease application being reinstated — Minister informed applicants that he disagreed with recommendation to withdraw land and lease application would not be reinstated — Applicants' application for judicial review was dismissed — Chambers judge held that Minister had no statutory power to delegate his discretion — Applicants appealed — Issue arose as to delegation of Minister's discretion — Minister could not delegate power concerning land withdrawals to Appeal Committee — Committee did not think it had been delegated power to make decision and its report made plain that it was only providing recommendation — Committee did not fall into categories under s. 21 of Interpretation Act regarding permissible delegation of ministerial powers — As Minister's power to withdraw land from agreement was inherently discretionary, it was unlikely that legislature meant appeal committee to exercise Minister's powers in that regard — Interpretation Act, R.S.A. 1980, c. I-7, s. 21.

Administrative law --- Requirements of natural justice — Right to hearing — Procedural rights at hearing — Reasons for decisionApplicants sought to lease public land in order to operate campground — Land was subject to 20-year forest management agreement between province and company which permitted Minister to withdraw lands from agreement at any time at his discretion — Applicants were told that lease application was cancelled because they had failed to negotiate land withdrawal with company and there had been negative public response — Applicants appealed decision to cancel lease application — Minister sent letter advising applicants that appeal committee would make final land use decision regarding status of lease application — Appeal Committee's report recommended that Minister withdraw land from agreement resulting in lease application being reinstated — Minister informed applicants that he disagreed with recommendation to withdraw land and lease application would not be reinstated — Applicants' application for judicial review was dismissed — Applicants appealed — Appeal allowed in part — Multi-faceted issues were involved in Minister's decision — Applicants invested time and money in lengthy and complex process leading to Minister's decision — Economic impact of Minister's decision was not

underestimated — Applicants' expectations did not entitle them to substantive remedies but were relevant to procedural fairness — Minister's statements and letter caused applicants to believe that Minister would follow appeal committee's decision — Applicants were entitled to explanation for Minister's decision — Matter remitted to Minister with direction that he provide reasons for decision not to withdraw land from agreement or reinstated lease application.

Nicholson v. Haldimand-Norfolk Pol. Commrs (SCC, 1979)

Appellant was engaged as a constable, third class, by the Town of Caledonia under an oral contract providing for a twelve month probationary period. Eleven months later he was promoted to constable second class. The municipality was (after the expiry of the twelve month period) incorporated into the Regional Municipality of Haldimand-Norfolk. The respondent Board thereafter, but within eighteen months of his initial appointment purported to dispense with his services. Section 27 of Regulation 680 made under The Police Act provides inter alia that no police officer is subject to any penalty (under that Part of the Regulations) except after a hearing and final disposition of a charge on appeal or after the time for appeal has expired subject to certain exceptions, one of which is the authority of a board or council “to dispense with the services of any constable within eighteen months of his appointment to the force”. The Divisional Court granted an application to quash the decision of the Board but the Court of Appeal reversed on the basis that s. 21(b) of the Regulations had the effect of preserving the common law right of the Board to dispense with the services of any probationary constable at their pleasure (and consequently without a hearing) and took the view that the terms of s. 27 (b) did not admit of contractual variation making the fact that appellant had been originally hired for a twelve month probationary period irrelevant.

Held (Martland, Pigeon, Beetz and Pratte JJ. dissenting): The appeal should be allowed.

Per Laskin C.J. and Ritchie, Spence, Dickson and Estey JJ.: The Police Act and regulations thereunder form a code for police constables with an array of powers some of which are discretionary. The respondent Board as a body created by statute, has only such powers as are given to it by the statute or regulations. In effect a constable is the holder of a public office exercising, so far as his police duties are concerned, an original authority confirmed by s. 55 of The Police Act and is a member of a civilian force. His assimilation to a soldier as in the Perpetual Trustee Co. case, [1955] A.C. 457, is for limited purposes only and cannot apply for other purposes such as liability or otherwise to peremptory discharge. In Ridge v. Baldwin, [1964] A.C. 40, Lord Reid set out a three-fold classification of dismissal situations: dismissal of a servant by his master, dismissal from an office held during pleasure, and dismissal from an office where there must be something against a man to warrant his dismissal. The present case is not one where the constable held office during pleasure, and accordingly fits more closely into Lord Reid’s third class. The appellant should have been told why his services were no longer required and given an opportunity to respond. Thereafter it would have been for the Board to reach its decision and that decision, always premising good faith, would not have been reviewable elsewhere. While the appellant could not claim the procedural protections of a constable with more than eighteen month’s service, he should have been treated ‘fairly’ not arbitrarily.

Per Martland, Pigeon, Beetz and Pratte JJ. dissenting;. The relevant provision is s. 27(b) which clearly recognizes the existence of an authority in the Board to terminate the employment of a police constable at any time within a period of eighteen months commencing from the date of his appointment. Both the Divisional Court and the Court of Appeal correctly regarded the eighteen month period as a probationary one. It is not without significance that whereas paras. (a), (c) and (e) refer to “member of the police force”, para. (b) does not. The respondent had therefore the right to dispense with the appellant’s services without an investigation of his conduct. The purpose of the probationary period was to enable the Board to decide whether it wished to continue the appellant’s services. The decision of the Board was purely administrative and it was under no duty to explain why his services were no longer required or to give him an opportunity to be heard. It could have taken that course as a matter of courtesy but its failure to do so was not a breach of any legal duty to him.

Canada v. Inuit Tapirisat of Canada (SCC, 1980)

After the approval by the CRTC of a new rate structure for Bell Canada, the plaintiffs-respondents appealed the CRTC decision to the Governor General in Council pursuant to s. 64(1) of the National Transportation Act. Their petitions having been denied, the respondents attacked the decisions of the Governor General in Council alleging that they had not been given a hearing in accordance with the principles of natural justice. This appeal arises from an application made in the Trial Division of the Federal Court for an order striking out the plaintiffs' statement of claim on the ground that the statement disclosed "no reasonable cause of action". The application was granted but the Federal Court of Appeal set aside the order of the Trial Division judge. Hence the appeal to this Court.

Held: The appeal should be allowed.

The substance of the question before this Court in this appeal is whether there is a duty to observe natural justice in, or at least a duty of fairness incumbent on, the Governor in Council in dealing with parties such as the respondents upon their submission of a petition under s. 64(1) of the National Transportation Act.

Such petitions are to be contrasted with the mechanism for appeal to the Federal Court of Appeal on questions of law or jurisdiction provided in subs. (2) and following of s. 64. The courts have held that the rules of natural justice and the duty to act fairly depend on the circumstances of the case, the nature of the inquiry or investigation, the subject matter that is being dealt with, the consequences on the persons affected and so forth. The mere fact that a decision is made pursuant to a statutory power vested in the Governor in Council does not mean that it is beyond review if the latter fails to observe a condition precedent to the exercise of that power, whether such power is classified as administrative or quasi-judicial. However in this case, there is no failure to observe a condition precedent but rather the attack is directed at procedures adopted by the Governor in Council, once validly seized of the respondents' petitions. The very nature of the Governor in Council must be taken into account in assessing the technique of review which he

adopted. The executive branch cannot be deprived of the right to resort to its staff, departmental personnel and ministerial members concerned with the various policy issues raised by a petition.Under s. 64(1), the Governor in Council is not limited to varying orders made inter partes but he may act "of his motion"; he may act "at any time"; he may vary or rescind any order, decision, rule or regulation "in his discretion". Parliament has in s. 64(1) not burdened the Governor in Council with any standards or guidelines in the exercise of its rate review function. Nor were procedural standards imposed or even implied. The discretion of the Governor in Council is complete provided he observes the jurisdictional boundaries of s. 64(1). Furthermore there is no need for the Governor in Council to give reasons for his decision, to hold any kind of hearing, or even to acknowledge the receipt of a petition. Where the executive branch has been assigned a function performable in the past by the Legislature itself and where the res or subject matter is not an individual concern, considerations different from Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, arise. In such a circumstance the Court must fall back upon the basic jurisdictional supervisory role and in so doing construe the statute to determine whether the Governor in Council has performed its functions within the boundary of the parliamentary grant and in accordance with the terms of the parliamentary mandate.

Further, there is nothing in s. 64(1) to justify a variable yardstick for the application to that section of the principle of fairness according to the source of the information placed before the Governor in Council. Once the proper construction of the section is determined, it applies consistently throughout the proceedings before the Governor in Council.

Reference re Canada Assistance Plan (SCC, 1990)

In 1990, the federal government, in order to reduce the federal budget deficit, decided to cut expenditures and limit the growth of payments made to financially stronger provinces under the Canada Assistance Plan (the "Plan").  This change was embodied in Bill C-69, now the Government Expenditures Restraint Act. Under the Plan, the federal government concluded agreements with the provinces to share the cost of their expenditures on social assistance and welfare.  Section 5 of the Plan authorizes contributions amounting to half of the provinces' eligible expenditures. These agreements continue to be in force so long as the relevant provincial law remains in operation (s. 8(1)).  They may be amended or terminated by mutual consent, or terminated on one year's notice from either party (s. 8(2)). The Plan also provides for regulations, but regulations affecting the substance of agreements are ineffective unless passed with the consent of any province affected (s. 9(2)).                    The Lieutenant Governor in Council of British Columbia, in accordance with s. 1 of the Constitutional Question Act of that province, referred to the British Columbia Court of Appeal two constitutional questions to determine: (1) whether the Government of Canada has any authority to limit its obligation under the Plan and its Agreement with British Columbia; and (2) whether the terms of the Agreement, the subsequent conduct of the Government of Canada pursuant to the Agreement and the provisions of the Plan give rise to a legitimate expectation that the Government of Canada would introduce no bill into Parliament to limit its obligation

under the Agreement or the Plan without the consent of British Columbia. The Court of Appeal answered the first question in the negative and the second question in the affirmative.                    Held: The appeal should be allowed.  The first constitutional question is answered in the affirmative.  The second constitutional question is answered in the negative. Justiciability                    The reference questions raise matters that are justiciable and should be answered. Both questions have a sufficient legal component to warrant the intervention of the judiciary branch. The first question requires the interpretation of a statute of Canada and an agreement.  The second raises the question of the applicability of the legal doctrine of legitimate expectations to the process involved in the enactment of a money bill.  A decision on these questions will have the practical effect of settling the legal issues in contention and will assist in resolving the controversy. There is no other forum in which these legal questions could be determined in an authoritative manner. Question 1                    In presenting Bill C-69 to Parliament, the Government of Canada acted in accordance with the Agreement. While the language of the Plan is, in general, duplicated in the Agreement, the contribution formula, which authorizes payments to the provinces, appears only in s. 5 of the Plan. Being part of the Plan, the formula is  subject to amendment by virtue of the principle of parliamentary sovereignty  reflected in s. 42(1) of the federal Interpretation Act   , which states that "Every Act shall be construed as to reserve to Parliament the power of repealing or amending it...". Under s. 54   of the Constitution Act, 1867   , a money bill, including an amendment to a money bill like the Plan, can only be introduced on the initiative of the government. In these circumstances, the natural meaning to be given to the Agreement is that Canada's obligation is to pay the contributions which are authorized from time to time and not the contributions that were authorized when the Agreement was signed. The insertion of the formula for payment in the Plan only was a very strong indication that the parties did not intend that the formula should remain forever frozen. To assert that the federal government could prevent Parliament from exercising its powers to legislate amendments to the Plan would be to negate the sovereignty of Parliament. As well, Parliament did not intend to fetter its sovereign legislative power in restricting, in s. 9(2) of the Plan, the federal government's regulatory powers. Finally, the Agreement could be amended otherwise than in accordance with s. 8 of the Plan. The Agreement, which is subject to the amending formula in s. 8   , obliges Canada to pay the amounts which Parliament has authorized Canada to pay pursuant to s. 5 of the Plan. Hence, the payment obligations under the Agreement are subject to change when s. 5   is changed. That provision contains its own process of amendment by virtue of the principle of parliamentary sovereignty. Question 2                    The federal government did not act illegally in invoking the power of Parliament to amend the Plan without obtaining the consent of British Columbia. The doctrine of legitimate expectations does not create substantive rights -- in this case, a substantive right to veto proposed

federal legislation. The doctrine is part of the rules of procedural fairness which can govern administrative bodies. Where it is applicable, it can only create a right to make representations or to be consulted. Moreover, the doctrine does not apply to the legislative process. The government, which is an integral part of this process, is thus not constrained by the doctrine from introducing a bill to Parliament. A restraint on the executive in the introduction of legislation would place a fetter on the sovereignty of Parliament itself.  This is particularly true when the restraint relates to the introduction of a money bill. It is also fundamental to our system of government that a government is not bound by the undertakings of its predecessor.  The doctrine would derogate from this essential feature of democracy.                    The Plan does not purport to control the "manner and form" of subsequent legislation. Where a statute is of a constitutional nature and governs legislation generally, rather than dealing with a specific statute, it can impose requirements as to manner and form.  But where, as in this case, a statute has no constitutional nature, it will be very unlikely to evidence an intention of the legislative body to bind itself in the future. Sections 8(2) and 9(2) of the Plan, read together, do not reveal, by necessary implication, a requirement that subsequent legislation cannot alter the Plan unless the consent of the affected province or provinces is obtained. They address only amendments to the Agreement and to the regulations under the Plan, and say nothing about amendments to the Plan. Moreover, any "manner and form" requirement in an ordinary statute must overcome the clear words of s.   42(1)   of the Interpretation Act   . This provision requires that federal statutes ordinarily be interpreted to accord with the doctrine of parliamentary sovereignty. This doctrine prevents a legislative body from binding itself as to the substance of its future legislation.                    Section 2 of the Government Expenditures Restraint Act is intra vires Parliament.  First, Parliament was not disabled from unilaterally changing the law so as to change the Agreement once it had been authorized by Parliament and executed by the parties. The Agreement was between British Columbia and the federal government.  It did not bind Parliament. The applicable constitutional principle is the sovereignty of Parliament. Second, the new legislation does not amount to regulation of an area outside federal jurisdiction. Bill C-69 was not an indirect, colourable attempt to regulate in provincial areas of jurisdiction. It is simply an austerity measure. Further, the simple withholding of federal money, which had previously been granted to fund a matter within provincial jurisdiction, does not amount to the regulation of that matter.  The new legislation simply limits the growth of federal contributions.  While the Government Expenditures Restraint Act impacts upon a constitutional interest outside the jurisdiction of Parliament, such impact is not enough to find that a statute encroaches upon the jurisdiction of the other level of government. The Court should not, under the "overriding principle of federalism", supervise the federal government's exercise of its spending power in order to protect the autonomy of the provinces.  Supervision of the spending power is not a separate head of judicial review.  If a statute is neither ultra vires nor contrary to the Canadian Charter of Rights and Freedoms   , the courts have no jurisdiction to supervise the exercise of legislative power.

Cardinal v. Kent Institution (SCC, 1985)

Appellants were prisoners who were allegedly involved in a hostage-taking incident in Matsqui Institution. Criminal charges of forcible seizure and attempted escape were laid against them. They were transferred to Kent Institution where they were placed, on the Director's oral instructions, in administrative dissociation or segregation, pursuant to s. 40 of the Penitentiary Service Regulations, on the ground that it was necessary for the maintenance of good order and discipline in the institution. The Director did not make an independent inquiry into the alleged involvement of the appellants in the hostage-taking incident but relied on what he had heard from the warden of Matsqui Institution and personnel at regional headquarters. The Segregation Review Board, which reviewed the appellants' segregation monthly in accordance with s. 40 of the Regulations, recommended that they be released from administrative segregation into the general prison population. The Director refused to follow the Board's recommendation on the ground that the appellants' release from segregation before the disposition of the criminal charges pending against them would "probably" or "possibly" introduce an unsettling element into the prison population. The Director did not inform the appellants of his reasons for refusing to follow the Board's recommendation and did not give them an opportunity to be heard as to whether he should act in accordance with the recommendation.                    Appellants challenged their continued confinement in administrative dissociation or segregation by applications for habeas corpus with certiorari in aid. McEachern C.J.S.C. in the Supreme Court of British Columbia held that the Court had jurisdiction to issue certiorari in aid of habeas corpus, despite the exclusive jurisdiction by way of certiorari of the Federal Court of Canada under s. 18   of the Federal Court Act   , and that habeas corpus would lie to determine the validity of confinement in administrative segregation. On the merits of the applications, he held that the continued segregation of the appellants, despite the recommendation of the Segregation Review Board, had become unlawful because of a breach of the duty of procedural fairness, and he ordered the release of the appellants into the general population of the penitentiary. The British Columbia Court of Appeal held that the Supreme Court had jurisdiction to issue certiorari in aid of habeas corpus, that the Court could on habeas corpus alone consider affidavit evidence to determine whether there had been an absence or excess of jurisdiction, and that habeas corpus would lie to determine the validity of confinement in administrative segregation, but a majority of the Court of Appeal held that the continued segregation of the appellants had not been rendered unlawful by a breach of the duty of procedural fairness. The appeal was accordingly allowed.                     Held: The appeal should be allowed.                    For the reasons given in R. v. Miller, [1985] 2 S.C.R. 613, the Court of Appeal correctly concluded (a) that the British Columbia Supreme Court had jurisdiction to issue certiorari in aid of habeas corpus; (b) that the Court could on an application for habeas corpus alone consider affidavit evidence to determine whether there had been an absence or excess of jurisdiction; and (c) that habeas corpus would lie to determine the validity of the confinement of an inmate in administrative dissociation or segregation, and if such confinement be found to be unlawful to order his release into the general population of the institution.                    The Director was under a duty of procedural fairness in exercising the authority conferred by s. 40 of the Regulations with respect to administrative dissociation or segregation.

At common law, a duty of procedural fairness lies on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual. The duty of procedural fairness has been held to apply in principle to disciplinary proceedings within a penitentiary, and although administrative segregation is distinguished from punitive or disciplinary segregation in the Regulations, the effect on the prisoner is the same and gives rise to the duty to act fairly. The extent to which procedural requirements are imposed in the prison setting must, however, be approached with caution.                    The original imposition of administrative dissociation or segregation on the appellants was a lawful exercise of the Director's discretionary authority and was not carried out unfairly. In view of the urgent or emergency nature of the decision there could be no requirement of prior notice and hearing. In the case of the Director's decision to continue the appellants' segregation, despite the recommendation of the Segregation Review Board that they be released into the general population of the penitentiary, procedural fairness required that the Director inform the appellants of the reasons for his intended decision and give them an opportunity before him, however informal, to state their case for release. These minimal requirements of procedural fairness were fully compatible with the concern that the process of prison administration, because of its special nature and exigencies, should not be unduly burdened or obstructed by the imposition of unreasonable or inappropriate procedural requirements.                     As to the possible suggestion in the decision of the majority of the Court of Appeal that the breach of the duty of procedural fairness, if any, was not of sufficient consequence to render the continued segregation of the appellants unlawful, the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.                    By his failure to afford the appellants a fair hearing on the question whether he should act in accordance with the recommendation of the Segregation Review Board the Director rendered the continued segregation of the appellants unlawful. They, therefore, had a right on habeas corpus to be released from administrative dissociation or segregation into the general population of the penitentiary.

Kane v. UBC (SCC, 1980)

Two deans of faculties at the University of British Columbia recommended that the appointment of the appellant (K), a professor at the University, be terminated for cause, the chief complaint being that he had made improper use of the university computer facilities for personal purposes. Following a meeting called by the President of the University, at which K and his counsel were present, the deans recommended that, instead of terminating K's appointment, he should be suspended without salary for three months, and be required to make financial restitution to the

University. The deans were influenced by the argument that the irregular procedures followed by K were the result of a misunderstanding rather than a deliberate attempt to deceive, and that administrative officers of the University may have been lax in discharging their duties to such a degree as to mislead K as to the proper procedures to be followed.

The President of the University acted according to the deans' recommendation. He suspended K for three months, without salary, pursuant to s. 58(1) of the Universities Act, 1974 (B.C.), c. 100, and directed him to provide a full accounting and restitution of all sums due the University.K appealed to the Board of Governors of the University, pursuant to s. 58(3). K did not question the fact that he had used the university computer for his own purposes, but felt that he should not be suspended for doing so. The President attended the meeting as a member of the Board. Section 61 of the Universities Act provides that the President is a member of the Board "and shall attend its regular meetings."

K and his counsel were heard by the Board. K answered questions directed to him by members of the Board. During the hearing, the President of the University responded to questions directed to him by Board members, but did not ask questions of K or his counsel.

At the conclusion of the hearing, the chairman requested K and his counsel to leave so that the Board might deliberate. Following an adjournment for dinner, the Board deliberated, the University President being present throughout. The President did not participate in the discussions. Nor did he vote upon the resolution. He did, however, answer questions directed to him by Board members. The Board approved the three-month suspension of K, without salary, and the order for a full accounting and restitution of all sums due to the University for the use of the computer for private and commercial affairs.

K petitioned the Supreme Court of British Columbia for an order that the Board resolution be quashed, pursuant to the Judicial Review Procedure Act, 1976 (B.C.), c. 25. The petition was dismissed. A majority of the British Columbia Court of Appeal dismissed an appeal from the trial judgment. K appealed from the judgment of the Court of Appeal to this Court.Held (Ritchie J. dissenting): The appeal should be allowed.

Per Martland, Pigeon, Dickson, Beetz, Estey and McIntyre JJ.: The submission which was based upon the fact that the President testified or gave evidence during the postprandial session in the absence of K and that this amounted to a breach of the principles of natural justice and a failure to observe the rule expressed in the maxim audi alteram partem was accepted. Applying the following principles, the appeal must be allowed.

1. It is the duty of the courts to attribute a large measure of autonomy of decision to a tribunal, such as a Board of Governors of a University, sitting in appeal, pursuant to legislative mandate.2. As a constituent of the autonomy it enjoys, the tribunal must observe natural justice. To abrogate the rules of natural justice, express language or necessary implication must be found in the statutory instrument.3. A high standard of justice is required when the right to continue in one's profession or employment is at ' stake. A disciplinary suspension can have grave and permanent consequences upon a professional career.

4. The tribunal must listen fairly to both sides giving the parties to the controversy a fair opportunity for correcting or contradicting any relevant statement prejudicial to their views.5. Unless expressly or by necessary implication empowered to act ex parte, an appellate authority must not hold private interviews with witnesses or, a fortiori, hear evidence in the absence of a party whose conduct is impugned and under scrutiny.6. The Court will not inquire whether the evidence did work to the prejudice of one of the parties; it is sufficient if it might have done so.

The Board was under an obligation to postpone further consideration of the matter until such time as K might be present and hear the additional facts adduced; at the very least the Board should have made K aware of those facts and afforded him a real and effective opportunity to correct or meet any adverse statement made. In the event, the Board followed neither course. The Board heard the further facts, deliberated, and ruled against K. In doing so, it made a fundamental error. The danger against which the Courts must be on guard is the possibility that further information could have been put before the Board for its consideration which affected the disposition of the appeal.

Per Ritchie J., dissenting: K knew from the outset exactly what it was that he was charged with, and he had an opportunity to present his case and to examine the witnesses against him. It could not be suggested that the President decided to wait until K was absent before providing the members of the Board with facts prejudicial to K, what the allegations really were and the reasons why the penalty was reduced from termination to suspension. If this had been the case there would indeed have been a grave breach of good faith on the part of the President and other Board members and a denial to the appellant of the fundamental right to be heard in his own defence in breach of the elementary principles of natural justice.

The statement contained in a letter from a member of the Board to the counsel for the University to the effect that the President provided the Board with necessary facts without in any way discussing the merits of the appeal, was too slender a thread upon which to support an accusation of such gravity against men of presumed integrity acting under a statutory authority.

Pritchard v. Ontario (SCC, 2004)

The appellant filed a complaint with the Ontario Human Rights Commission against her former employer.  She later sought judicial review of the Commission’s decision not to deal with most of her complaint.  When the Commission refused her request for the production of various documents, including a legal opinion provided to the Commission by in-house counsel, the appellant brought a motion before a judge of the Divisional Court for the production of all documents that were before the Commission when it made its decision, including the legal opinion.  The motion was granted.  On appeal on the sole issue of the production of the legal opinion, a three-judge panel of the Divisional Court upheld the motions judge’s decision.  The Court of Appeal set aside the orders pertaining to the legal opinion, holding that the opinion was privileged.

Held:  The appeal should be dismissed.

 Solicitor-client privilege applies to a broad range of communications between lawyer and client and applies with equal force in the context of advice given to an administrative board by in-house counsel as it does to advice given in the realm of private law.  If an in-house lawyer is conveying advice that would be characterized as privileged, the fact that that lawyer is “in-house” does not remove the privilege and does not change its nature.  Owing to the nature of the work of in-house counsel, often having both legal and non-legal responsibilities, each situation must be assessed on a case-by-case basis to determine if privilege arose in the circumstances.  Here, the communication between the Commission and its in-house counsel was a legal opinion and protected by solicitor-client privilege. Procedural fairness does not require the disclosure of a privileged legal opinion and does not affect solicitor-client privilege.  Both may co-exist without being at the expense of each other. In this case, the appellant was aware of the case to be met without production of the legal opinion.  Further, legislation purporting to limit or deny solicitor-client privilege must be interpreted restrictively; this privilege cannot be abrogated by inference.  “[R]ecord of the proceedings” in s. 10 of the Ontario Judicial Review Procedure Act does not include privileged communications from in-house counsel.  Section 10 does not clearly or unequivocally express an intention to abrogate solicitor-client privilege and does not stipulate that the “record” includes legal opinions. Finally, the common interest exception to solicitor-client privilege does not apply to an administrative board with respect to the parties before it.

May v. Ferndale Institution (SCC, 2004)

The appellant inmates are prisoners serving life sentences.  Based on a computerized reclassification scale which yielded a medium-security rating, they were each involuntarily transferred from a minimum- to a medium-security institution.  There were no allegations of fault or misconduct on the part of these inmates.  The transfers were the result of a direction from the Correctional Service of Canada (“CSC”) to review the security classifications of all inmates serving life sentences in minimum-security institutions who had not completed their violent offender programming.  CSC used a computer application to assist the classification review process.  This application, the Security Reclassification Scale (“SRS”), was developed to help caseworkers determine the most appropriate level of security at key points throughout an offender’s sentence. It provides a security rating based on data entered with respect to various factors related to the assessment of risk. The inmates applied to the provincial superior court for habeas corpus with certiorari in aid directing correction officials to transfer them back to the minimum-security facility.  From the outset, they requested the scoring matrix for the SRS, but were told it was not available.  The chambers judge found that a provincial superior court had jurisdiction to review a federal inmate’s involuntary transfer on an application for habeas corpus with certiorari in aid, but that the applications should be dismissed because the inmates’ transfers had not been arbitrary and had not been made in the absence of jurisdiction.  The Court of Appeal dismissed the inmates’ appeal, holding that the chambers judge ought to have declined to exercise habeas corpus jurisdiction because no reasonable explanation was given for the inmates’ failure to pursue

judicial review  in Federal Court.  Before the hearing in this Court, the inmates filed a motion to submit the cover page of a scored copy of an assessment and a current version of the scoring matrix as new evidence.  Held (Major, Bastarache and Charron JJ. dissenting):  The appeal should be allowed.  The applications for habeas corpus and the motion to adduce new evidence should be granted.  The transfer decisions are declared null and void for want of jurisdiction. 

Per McLachlin C.J. and Binnie, LeBel, Deschamps, Fish and Abella JJ.:  Inmates may choose to challenge the legality of a decision affecting their residual liberty either in a provincial superior court by way of habeas corpus or in the Federal Court by way of judicial review.  As a matter of principle, a provincial superior court should exercise its jurisdiction when it is requested to do so.  Habeas corpus jurisdiction should not be declined merely because an alternative remedy exists and seems more convenient to the court.  Provincial superior courts should decline habeas corpus jurisdiction only where (1) a statute, such as the Criminal Code   , confers jurisdiction on a court of appeal to correct the errors of a lower court and release the applicant if need be, or (2) the legislator has put in place complete, comprehensive and expert procedure for review of an administrative decision, such as the scheme created by Parliament for immigration matters.  [44-50]  

Here, the Court of Appeal erred in barring access to habeas corpus as neither of the two recognized exceptions are applicable.  First, these cases involve administrative decisions in the prison context, not criminal convictions.  Second, Parliament has not enacted a complete, comprehensive and expert procedure for review of a decision affecting inmates’ confinements.  The language of the Corrections and Conditional Release Act   (“CCRA   ”) and its regulations make it clear that Parliament did not intend to bar federal inmates’ access to habeas corpus.  The scheme of review and appeal which militates against the exercise of habeas corpus jurisdiction in the immigration context is substantially different from the grievance procedure provided in the CCRA   .  Moreover, when the habeas corpus jurisdiction of provincial superior courts is assessed purposively, the relevant factors favour the concurrent jurisdiction approach.  This approach properly recognizes the importance of affording inmates a meaningful and significant access to justice in order to protect their liberty rights.  Timely judicial oversight, in which provincial superior courts must play a concurrent if not predominant role, is still necessary to safeguard the human rights and civil liberties of inmates, and to ensure that the rule of law applies within penitentiary walls.  [51-72] Habeas corpus should not be granted in these cases on the basis of arbitrariness.  A transfer decision initiated by a mere change in policy is not, in and of itself, arbitrary.  The new policy applied here strikes a proper balance between the interests of inmates deprived of their residual liberty and the state’s interest in the protection of the public.  It also required that inmates be transferred to higher security institutions only after individual assessment. In each case, there was a concern that the inmate had failed to complete a violent offender program, thereby ensuring that the  inmates’ liberty interest was limited only to the extent necessary to protect the public. [83-86]

 

However, habeas corpus should be granted because CSC’s failure to disclose the scoring matrix for the computerized security classification rating tool unlawfully deprived the inmates of their residual liberty.  While the  Stinchcombe disclosure standard is inapplicable to an administrative context, in that context procedural fairness generally requires that the decision-maker disclose the information relied upon.  The individual must know the case he has to meet. If the decision-maker fails to provide sufficient information, his decision is void for lack of jurisdiction.  In order to assure the fairness of decisions concerning inmates, s.   27(1)   of the CCRA   requires that CSC give the inmate, at a reasonable period before the decision is to be taken, “all the information to be considered in the taking of the decision or a summary of that information”.  Here, CSC’s failure to disclose the scoring matrix which was available at the relevant time, despite several requests by the inmates, was a clear breach of procedural fairness and of its statutory duty of disclosure.  This information was not a duplication of information already disclosed.  Without the scoring matrix which provides information on the numerical values to be assigned to each factor and to the manner in which a final score is generated by the computerized tool, the inmates were deprived of information essential to understanding the computerized system which generated their scores and were prevented from formulating a meaningful response to the reclassification decisions.  The inmates knew what the factors were, but did not know how values were assigned to them or how those values factored into the generation of the final score.  Since CSC concealed crucial information and violated in doing so its statutory duty of disclosure, the  transfer decisions were made improperly.  They are, therefore, null and void for want of jurisdiction.  The inmates’ motion to adduce the “scoring matrix” as new evidence should be granted because the evidence satisfies all the requirements of the Palmer test. [91-120]  

Per Major, Bastarache and Charron JJ. (dissenting):  The provincial superior court properly exercised its habeas corpus jurisdiction, and its dismissal of the habeas corpus applications must be upheld because the inmates were not unlawfully deprived of their liberty.  First, the transfer decisions were not arbitrary.  Each decision was based on an individualized assessment of the merits of each case.  Second, although the inmates should have been provided with the scoring matrix, which they had specifically requested so that they could check the accuracy of the total SRS score, not every instance of non-disclosure results in a breach of procedural fairness and deprives the decision-maker of jurisdiction. In these cases, the statutory requirement to provide a “summary of the information” in s.   27(1)   of the CCRA   was met.  Further, procedural fairness was achieved, because each inmate was provided with sufficient information to know the case he had to meet.  The inmates were advised that the SRS formed part of the basis for the transfer recommendation, and they were provided with a list of the relevant factors considered in computing the score, the personal information relied upon in assessing each factor, and the reclassification score assigned to them. [122-125] [138]  The fresh evidence fails to satisfy the requirements of the Palmer test.  Although it is clear that instructions on how to compute the SRS existed at the time of the reclassification, the scoring matrix would not have shown that the reclassification was arbitrary or that the total score was inaccurate.  Moreover, the SRS score only partially prompted the review of the inmates’

classifications; the actual transfer decisions were based on the individual assessments of their respective situations.  There was no basis for granting the habeas corpus applications with or without this additional information. [133-139]

Singh v. Canada (SCC, 1985)

Appellants claim Convention refugee status as defined in s. 2(1) of the Immigration Act, 1976. The Minister of Employment and Immigration, acting on the advice of the Refugee Status Advisory Committee, determined pursuant to s. 45 of the Act that none of the appellants was a Convention refugee. The Immigration Appeal Board, acting under s. 71(1) of the Act, denied the subsequent applications for redetermination of status and the Federal Court of Appeal refused applications, made under s. 28   of the Federal Court Act   , for judicial review of those decisions. The Court considered whether the procedures for the adjudication of refugee status claims set out in the Immigration Act, 1976 violate s. 7   of the Canadian Charter of Rights and Freedoms   and s. 2(e) of the Canadian Bill of Rights.                    Held: The appeals should be allowed.                    Per Dickson C.J. and Lamer and Wilson JJ.: Appellants, in the determination of their claims, are entitled to assert the protection of s. 7   of the Charter   which guarantees "everyone ... the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice". The term "everyone" in s. 7   includes every person physically present in Canada and by virtue of such presence amenable to Canadian law. The phrase "security of the person" encompasses freedom from the threat of physical punishment or suffering as well as freedom from such punishment itself. A Convention refugee has the right under s. 55 of the Immigration Act, 1976 not to "... be removed from Canada to a country where his life or freedom would be threatened ...". The denial of such a right amounts to a deprivation of "security of the person" within the meaning of s. 7   . Although appellants are not entitled at this stage to assert rights as Convention refugees, having regard to the potential consequences for them of a denial of that status if they are in fact persons with a "well-founded fear of persecution", they are entitled to fundamental justice in the adjudication of their status.                    The procedure for determining refugee status claims established in the Immigration Act, 1976 is inconsistent with the requirements of fundamental justice articulated in s. 7   . At a minimum, the procedural scheme set up by the Act should provide the refugee claimant with an adequate opportunity to state his case and to know the case he has to meet. The administrative procedures, found in ss. 45 to 48 of the Immigration Act, 1976, require the Refugee Status Advisory Committee and the Minister to act fairly in carrying out their duties but do not envisage an opportunity for the refugee claimant to be heard other than through his claim and the transcript of his examination under oath. Further, the Act does not envisage the refugee claimant's being given an opportunity to comment on the advice the Refugee Status Advisory Committee has given the Minister. Under section 71(1) of the Act, the Immigration Appeal Board must reject an application for redetermination unless it is of the opinion that it is more likely than not that the applicant will be able to succeed. An application, therefore, will usually be rejected before the refugee claimant has even had an opportunity to discover the Minister's

case against him in the context of a hearing. Such procedures do not accord the refugee claimant fundamental justice and are incompatible with s. 7   of the Charter   . Respondent failed to demonstrate that these procedures constitute a reasonable limit on the appellants' rights within the meaning of s. 1   of the Charter   . Pursuant to s. 52(1)   of the Constitution Act, 1982   , s. 71(1) of the Immigration Act, 1976 is, to the extent of the inconsistency with s. 7   , of no force and effect.                    Section 24(1)   of the Charter   grants broad remedial powers to "a court of competent jurisdiction". This phrase premises the existence of jurisdiction from a source external to the Charter   itself. These are appeals from the Federal Court of Appeal on applications for judicial review under s. 28   of the Federal Court Act   . Accordingly, this Court's jurisdiction is no greater than that of the Federal Court of Appeal and is limited to decisions made on a judicial or quasi-judicial basis. Only the decisions of the Immigration Appeal Board were therefore reviewable. All seven cases are remanded to the Board for a hearing on the merits in accordance with the principles of fundamental justice.

Blencoe v. B.C. (Human Rights Commission) (SCC, 2001)

In March 1995, while serving as a minister in the Government of British Columbia, the respondent was accused by one of his assistants of sexual harassment. A month later, the premier removed the respondent from Cabinet and dismissed him from the NDP caucus.  In July and August of 1995, two complaints of discriminatory conduct in the form of sexual harassment were filed with the British Columbia Council of Human Rights (now the British Columbia Human Rights Commission) against the respondent by two other women, W and S. The complaints centered around various incidents of sexual harassment alleged to have occurred between March 1993 and March 1995.  The respondent was informed of the first complaint in July 1995 and of the second in September 1995.  After the Commission’s investigation, hearings were scheduled before the British Columbia Human Rights Tribunal in March 1998, over 30 months after the initial complaints were filed. Following the allegations against the respondent, media attention was intense.  He suffered from severe depression.  He did not stand for re-election in 1996.  Considering himself “unemployable” in British Columbia due to the outstanding human rights complaints against him, the respondent commenced judicial review proceedings in November 1997 to have the complaints stayed.  He claimed that the Commission had lost jurisdiction due to unreasonable delay in processing the complaints.  The respondent alleged that the unreasonable delay caused serious prejudice to him and his family which amounted to an abuse of process and a denial of natural justice.  His petition was dismissed by the Supreme Court of British Columbia.  A majority of the Court of Appeal allowed the respondent’s appeal and directed that the human rights proceedings against him be stayed.  The majority found that the respondent had been deprived of his right under s.   7   of the Canadian Charter of Rights and Freedoms   to security of the person in a manner which was not in accordance with the principles of fundamental justice. Held (Iacobucci, Binnie, Arbour and LeBel JJ. dissenting in part):  The appeal should be allowed.

Per McLachlin C.J. and L’Heureux-Dubé, Gonthier, Major and Bastarache JJ.:  The Charter   applies to the actions of the British Columbia Human Rights Commission.  The Commission is created by statute and all of its actions are taken pursuant to statutory authority.  Bodies exercising statutory authority are bound by the Charter   even though they may be independent of government.  The Commission in this case is both implementing a specific government program and exercising powers of statutory compulsion.  Further, the Commission cannot escape Charter   scrutiny merely because it exercises judicial functions.  The ultimate source of authority is government.  The Commission is carrying out the legislative scheme of the Human Rights Code and must act within the limits of its enabling statute.  There is clearly a “governmental quality” to the functions of a human rights commission which is created by government to promote equality in society generally.  It is the administration of a governmental program that calls for Charter   scrutiny. Section   7   of the Charter   can extend beyond the sphere of criminal law, at least where there is state action which directly engages the justice system and its administration.  If a case arises in the human rights context which, on its facts, meets the usual s.   7   threshold requirements, there is no specific bar against such a claim and s.   7   may be engaged. 

In order for s.   7   to be triggered, one must first establish that the interest in respect of which the respondent asserted his claim falls within the ambit of s.   7   .  The liberty interest protected by s.   7   is no longer restricted to mere freedom from physical restraint.  “Liberty” is engaged where state compulsions or prohibitions affect important and fundamental life choices.  The s.   7   liberty interest protects an individual’s personal autonomy.  In our free and democratic society, individuals are entitled to make decisions of fundamental importance free from state interference.  Such personal autonomy, however, is not synonymous with unconstrained freedom.  Here, the state has not prevented the respondent from making any “fundamental personal choices”. Therefore, the interests sought to be protected in this case do not fall within the “liberty” interest protected by s.   7   . The right to security of the person guaranteed by s.   7   protects the psychological integrity of an individual.  However, in order for this right to be triggered, the psychological harm must result from the actions of the state and it must be serious.  In this case, the direct cause of the harm to the respondent was not the state-caused delay in the human rights process.  While the respondent has suffered serious prejudice in connection with the allegations of sexual harassment against him, for s. 7   to be engaged there must be a sufficient causal connection between the state-caused delay and the prejudice suffered.  The most prejudicial impact on the respondent was caused not by the actions of the Commission but rather by the events prior to the complaints – the allegations of the respondent’s assistant -- which caused the respondent to be ousted from Cabinet and caucus as well as the actions by non-governmental actors such as the press.  The harm to the respondent resulted from the publicity surrounding the allegations themselves, coupled with the political fallout which ensued. When the respondent began to experience stigma, the human rights proceedings had yet to commence.  Further, there is a pending civil suit against the respondent for sexual harassment and W’s complaint against the Government on these very same issues.  The prolongation of stigma from ongoing publicity was likely regardless

of the delay in the human rights proceedings.  At best, the respondent was deprived of a speedy opportunity to clear his name.  Lastly, the human rights process did not seriously exacerbate the respondent’s prejudice.  It is difficult to see how procedural delay could have seriously increased damage already done to the respondent’s reputation.

Even accepting that the outstanding complaints may have contributed to the respondent’s stigma to some degree, thereby causing some of his suffering, and assuming without deciding that there is a sufficient nexus between the state-caused delay and the prejudice to the respondent, the state interference with the respondent’s psychological integrity did not amount to a violation of his right to security of the person.  First, the s. 7   rights of “liberty and security of the person” do not include a generalized right to dignity, or more specifically a right to be free from the stigma associated with a human rights complaint.  While respect for the inherent dignity of persons is clearly an essential value in our free and democratic society which must guide the courts in interpreting the Charter   , this does not mean that dignity is elevated to a free-standing constitutional right protected by s. 7   .  The notion of “dignity” is better understood as an underlying value.  Like dignity, reputation is not a free-standing right.  Neither is freedom from stigma.  Second, the state has not interfered with the ability of the respondent and his family to make essential life choices.  In order for security of the person to be triggered in this case, the impugned state action must have had a serious and profound effect on the respondent’s psychological integrity.  It is only in exceptional cases where the state interferes in profoundly intimate and personal choices of an individual that state-caused delay in human rights proceedings could trigger the s. 7   security of the person interest.  Here,  the alleged right to be free from stigma associated with a human rights complaint does not fall within this narrow sphere.  The state has not interfered with the respondent’s right to make decisions that affect his fundamental being.  The prejudice to the respondent is essentially confined to his personal hardship. 

There is no constitutional right outside the criminal context to be “tried” within a reasonable time.  The majority of the Court of Appeal erred in transplanting s. 11   (b) principles set out in the criminal law context to human rights proceedings under s. 7   .  Not only are there fundamental differences between criminal and human rights proceedings, but, more importantly, s. 11   (b) of the Charter   is restricted to a pending criminal case. There are remedies available in the administrative law context to deal with state-caused delay in human rights proceedings.  However, delay, without more, will not warrant a stay of proceedings as an abuse of process at common law. There must be proof of significant prejudice which results from an unacceptable delay.  Here, the respondent’s ability to have a fair hearing has not been compromised.  Proof of prejudice has not been demonstrated to be of sufficient magnitude to impact on the fairness of the hearing.  Unacceptable delay may also amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been compromised.  Where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process.  It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute.  A court must be satisfied that the proceedings are contrary to the interests of justice.  There may also be abuse of process where conduct is oppressive.  A stay is not the only

remedy available for abuse of process in administrative law proceedings and a respondent asking for a stay bears a heavy burden.  In this case, the respondent did not demonstrate that the delay was unacceptable to the point of being so oppressive as to taint the proceedings.  While the stress and stigma resulting from an inordinate delay may contribute to an abuse of process, the delay in processing the complaints was not inordinate. 

The determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the case and its complexity, the purpose and nature of the proceedings, and whether the respondent contributed to the delay or waived the delay.  Here, although the Commission took longer than is desirable to process the complaints, the delay was not so inordinate as to amount to an abuse of process.  The case may not have been an extremely complicated one, but the various steps necessary to protect the respondents in the context of the human rights complaints system take time.  The trial judge found that only the 24-month period between the filing of the complaints and the end of the investigation process should be considered for the delay, stating that the Human Rights Tribunal could not be criticized for not setting the hearing dates earlier as the respondent did not press for earlier dates.  During that 24-month period,  there was no extended period without any activity in the processing of the complaints, except for an inexplicable five months of inaction.  The respondent challenged the lateness of the complaints and brought forward allegations of bad faith and, as a result, the process was delayed by eight months.  The Commission should not be held responsible for contributing to this part of the delay.  When all the relevant factors are taken into account, in particular the ongoing communication between the parties,  the delay in processing the complaints is not one that would offend the community’s sense of decency and fairness.  Nevertheless, in light of the lack of diligence displayed by the Commission, the Court’s discretion under s. 47   of the Supreme Court Act     should be exercised to award costs against the Commission in favour of the respondent and the complainants.  Per Iacobucci, Binnie, Arbour and LeBel  JJ. (dissenting in part):  This matter should be resolved on the basis of administrative law principles. It is therefore  unnecessary to express a definite opinion on the application of s. 7   of the Charter   .   

Administrative delay that is determined to be unreasonable based on its length, its causes, and its effects is abusive and contrary to administrative law principles.  Unreasonable delays must be identified within the specific circumstances of every case because not all delay is the same and not all administrative bodies are the same.  In order to differentiate reasonable and unreasonable delay, courts must remain alive not only to the needs of administrative systems under strain, but also to their good faith efforts to provide procedural protections to alleged wrongdoers.  In assessing the reasonableness of an administrative delay, three main factors should be balanced:  (1) the time taken compared to the inherent time requirements of the matter before the particular administrative body; (2) the causes of delay beyond the inherent time requirements of the matter; and (3) the impact of the delay.  A consideration of these factors imposes a contextual analysis.  

Here, inefficiency in the Human Rights Commission’s handling of this matter has led to abuse of process.  First, although serious, the allegations of sexual discrimination against the respondent did not raise complex issues and were not of a nature that could justify a prolonged investigation.  There was little to investigate.  Even though the inherent time requirements were minimal, in all it took the Commission approximately two years to determine that the complaints should go to a hearing.  The time from the initial filing of the complaints to the scheduled hearing was approximately 32 months.  While it is true that the Commission’s decision to send the matter to a hearing involved a number of steps, nothing in the inherent time requirements of the case came close to requiring the delay that occurred.  Second,  although the respondent sought to use the defences available to him, he did not become responsible for the sheer inefficiency of the Commission in dealing with these matters.  There was serious delay on both complaints despite the respondent’s efforts to find a way to end it.  The Commission admits that it cannot explain what was going on for five months of the time that it was dealing with the allegations against the respondent.  This five-month lapse is the high mark of the Commission’s ineptitude.  Third, although the administrative delay was not the only cause of the prejudice suffered by the respondent, it contributed significantly to its aggravation and the Commission did nothing to minimize the impact of the delay.  The  Commission’s conduct in dealing with this matter was less than acceptable.  Further, the inefficient and delay-filled process at the Commission harmed all parties involved in the process, including the complainants.  In the end, the specific and unexplained delay entitles the respondent to a remedy.   

The choice of the appropriate remedy requires a careful analysis of the circumstances of the case and imposes a balancing exercise between competing interests.  In human rights proceedings, the interest of the respondent, that of the complainants, and the public interest of the community itself must be considered.  The courts must also consider the stage of the proceedings which has been affected by the delay.  A distinction must be drawn between the process leading to the hearing and the hearing itself.  A different balance between conflicting interests may have to be found at different stages of the administrative process.  A stay of proceedings should  not generally appear as the sole or even the preferred form of redress.  It should be limited to those situations that compromise the very fairness of the hearing and to those cases where the delay in the conduct of the process leading to the hearing would amount to a gross or shocking abuse of the process.  In those two situations, the interest of the respondent and the protection of the integrity of the legal system become the paramount considerations.  More limited and narrowly focused remedies will be appropriate when it appears that the hearing will remain fair, in spite of the delay, and when the delay has not risen to the level of a shocking abuse,  notwithstanding its seriousness.  The first objective of any intervention by a court should be to make things happen, where the administrative process is not working adequately.  An order for an expedited hearing would be the most practical and effective means of judicial action.  An order for costs is a third kind of remedy.  It will not address the delay directly, but some of its consequences.  In this case, a stay of proceedings appears both excessive and unfair.  First, in spite of the seriousness of the problems faced by the respondent, the delay does not seem to compromise the fairness of the hearing. The delay rather concerns the process leading to the hearing. This delay arises from a variety of causes that do not evince an intent on the part of the Commission to harm the respondent wilfully, but rather demonstrate grave negligence and significant structural

problems in the processing of the complaints.  Second, a stay of proceedings in a situation that does not compromise the fairness of the hearing or amount to shocking or gross abuse requires the consideration of the interest of the complainants.  The Court of Appeal completely omitted any consideration of this interest.  Here, an order for an expedited hearing should have been considered as the remedy of choice.  The stay should be lifted and the Commission should be ordered to pay costs on a party-to-party basis to the respondent in this Court and in the British Columbia courts.  It is fair and appropriate to use the power conferred by s. 47   of the Supreme Court Act   , as the respondent has established that the process initiated against him was deeply flawed and that its defects justified his search for a remedy, at least in administrative law.  

Charkaoui v. Canada (MCI), (SCC, 2007)

The Immigration and Refugee Protection Act   (“IRPA   ”) allows the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness to issue a certificate declaring that a foreign national or permanent resident is inadmissible to Canada on grounds of security, among others (s.   77   ), and leading to the detention of the person named in the certificate.  The certificate and the detention are both subject to review by a judge of the Federal Court, in a process that may deprive the person of some or all of the information on the basis of which the certificate was issued or the detention ordered (s.   78   ).  Once a certificate is issued, a permanent resident may be detained, and the detention must be reviewed within 48 hours; in the case of a foreign national, the detention is automatic and that person cannot apply for review until 120 days after a judge determines the certificate to be reasonable (ss.   82   -84).  The judge’s determination on the reasonableness of the certificate cannot be appealed or judicially reviewed (s.   80(3)   ).  If the judge finds the certificate to be reasonable, it becomes a removal order, which cannot be appealed and which may be immediately enforced (s.   81   ).  Certificates of inadmissibility have been issued by the Ministers against the appellants C, H and A.  While C is a permanent resident, H and A are foreign nationals who had been recognized as Convention refugees.  All were living in Canada when they were arrested and detained on the basis of allegations that they constituted a threat to the security of Canada by reason of involvement in terrorist activities.  C and H were released on conditions in 2005 and 2006 respectively, but A remains in detention.  Both the Federal Court and the Federal Court of Appeal upheld the constitutional validity of the IRPA   ’s certificate scheme. Held:  The appeals should be allowed. (1)    Procedure for determining reasonableness of certificate and for review of detention The procedure under the IRPA   for determining whether a certificate is reasonable and the detention review procedures infringe s.   7   of the Charter   .  While the deportation of a non-citizen in the immigration context may not in itself engage s.   7   , features associated with deportation may do so.  Here, s.   7   is clearly engaged because the person named in a certificate faces detention pending the outcome of the proceedings and because the process may lead to the person’s removal to a place where his or her life or freedom would be threatened.  Further, the IRPA   ’s impairment of the named person’s right to life, liberty and security is not in accordance

with the principles of fundamental justice.  The procedure for determining whether a certificate is reasonable and the detention review procedure fail to assure the fair hearing that s.   7   requires before the state deprives a person of this right.  [13-14] [17-18] [65] The right to a fair hearing comprises the right to a hearing before an independent and impartial magistrate who must decide on the facts and the law, the right to know the case put against one, and the right to answer that case.  While the IRPA   procedures properly reflect the exigencies of the security context, security concerns cannot be used, at the s.   7   stage of the analysis, to excuse procedures that do not conform to fundamental justice.  Here, the IRPA   scheme includes a hearing and meets the requirement of independence and impartiality, but the secrecy required by the scheme denies the person named in a certificate the opportunity to know the case put against him or her, and hence to challenge the government’s case.  This, in turn, undermines the judge’s ability to come to a decision based on all the relevant facts and law.  The judges of the Federal Court, who are required under the IRPA   to conduct a searching examination of  the reasonableness of the certificate, in an independent and judicial fashion and on the material placed before them, do not possess the full and independent powers to gather evidence that exist in an inquisitorial process.  At the same time, the person named in a certificate is not given the disclosure and the right to participate in the proceedings that characterize the adversarial process.  The result is a concern that the judge, despite his or her best efforts to get all the relevant evidence, may be obliged, perhaps unknowingly, to make the required decision based on only part of the relevant evidence.  Similar concerns arise with respect to the requirement that the decision be based on the law.  Without knowledge of the information put against him or her, the person named in a certificate may not be in a position to raise legal objections relating to the evidence, or to develop legal arguments based on the evidence.  If s.   7   is to be satisfied, either the person must be given the necessary information, or a substantial substitute for that information must be found.  The IRPA provides neither.  [23] [27-31] [38] [45] [50-52] [61] [65]

The infringement of s.   7   is not saved by s.   1   of the Charter   .  While the protection of Canada’s national security and related intelligence sources constitutes a pressing and substantial objective, and the non-disclosure of evidence at certificate hearings is rationally connected to this objective, the IRPA   does not minimally impair the rights of persons named in certificates.  Less intrusive alternatives developed in Canada and abroad, notably the use of special counsel to act on behalf of the named persons, illustrate that the government can do more to protect the individual while keeping critical information confidential than it has done in the IRPA   .  [66] [68] [70] [73] [85] [87] (2) Detention of foreign nationals The detention of foreign nationals without warrant does not infringe the guarantee against arbitrary detention in s.   9   of the Charter   .  The triggering event for the detention of a foreign national is the signing under s.   77   of the IRPA   of a certificate stating that the foreign national is inadmissible on grounds of security, violation of human or international rights, serious criminality or organized criminality.  The security ground is based on the danger posed by the named person, and therefore provides a rational foundation for the detention.  However,  the lack of review of the detention of foreign nationals until 120 days after the reasonableness of the certificate has been judicially confirmed (s.   84(2)   ) infringes the guarantee against arbitrary

detention in s.   9   of the Charter   , which encompasses the right to prompt review of detention under s.   10   (c) of the Charter   .  While there may be a need for some flexibility regarding the period for which a suspected terrorist may be detained, this cannot justify the complete denial of a timely detention review. [88-89] [91] [93]

The infringement of ss.   9   and 10   (c) is not justified under s.   1   of the Charter   .  The IRPA provides permanent residents who pose a danger to national security with a mandatory detention review within 48 hours.  It follows that denial of review for foreign nationals for 120 days after the certificate is confirmed does not minimally impair the rights guaranteed by ss.   9   and 10   (c). [93-94] (3)    Extended periods of detention While the s.   12   guarantee against cruel and unusual treatment cannot be used as a mechanism to challenge the overall fairness of a particular legislative regime, indefinite detention without hope of release or recourse to a legal process to procure release may cause psychological stress and therefore constitute cruel and unusual treatment.  The IRPA in principle imposes detention only pending deportation, but it may in fact permit lengthy and indeterminate detention, or lengthy periods of detention subject to onerous release conditions.  The principles of fundamental justice and the guarantee of freedom from cruel and unusual treatment require that, where a person is detained or is subject to onerous conditions of release for an extended period under immigration law, the detention or the conditions must be accompanied by a meaningful process of ongoing review that takes into account the context and circumstances of the individual case.  The person must be accorded meaningful opportunities to challenge his or her continued detention or the conditions of his or her release. [97-98] [105] [107]

Extended periods of detention pending deportation under the certificate provisions of the IRPA   do not violate ss.   7   and 12   of the Charter   if accompanied by a process that provides regular opportunities for review of detention, taking into account all of the relevant factors, including the reasons for detention, the length of the detention, the reasons for the delay in deportation, the anticipated future length of detention, if applicable, and the availability of alternatives to detention.  However, this does not preclude the possibility of a judge concluding at a certain point that a particular detention constitutes cruel and unusual treatment or is inconsistent with the principles of fundamental justice. [110-116] [123] (4)     Differential treatment of citizens and non-citizens Since s.   6   of the Charter   specifically provides for differential treatment of citizens and non-citizens in deportation matters, a deportation scheme that applies to non-citizens, but not to citizens, does not for that reason alone infringe s.   15   of the Charter   .  Even though the detention of some of the appellants has been long, the record does not establish that the detentions at issue have become unhinged from the state’s purpose of deportation. [129] [131] (5)    Rule of law 

The rule of law is not infringed by (1) the unavailability of an appeal of the designated judge’s review of the reasonableness of the certificate; or (2) the provision for the issuance of an arrest warrant by the executive in the case of a permanent resident, or for mandatory arrest without a warrant following an executive decision in the case of a foreign national.  First, there is no constitutional right to an appeal, nor can such a right be said to flow from the rule of law in the present context.  Second, the rule of law does not categorically prohibit automatic detention, or detention on the basis of an executive decision, and the constitutional protections surrounding arrest and detention are set out in the Charter   .  [133] [136-137]

(6)    Remedy The IRPA’s procedure for the judicial approval of certificates is inconsistent with the Charter   , and hence of no force or effect.  This declaration is suspended for one year from the date of this judgment.  If the government chooses to have the reasonableness of C’s certificate determined during the one-year suspension period, the existing process under the IRPA   will apply.  After that period, H and A’s certificates will lose their “reasonable” status and it will be open to them to apply to have the certificates quashed.  Likewise, any certificates or detention reviews occurring after the one-year delay will be subject to the new process devised by Parliament.  Further, s.   84(2)   , which denies a prompt hearing to foreign nationals by imposing a 120-day embargo, after confirmation of the certificate, on applications for release, is struck, and s.   83   is modified so as to allow for review of the detention of a foreign national both before and after the certificate has been deemed reasonable. [139-141]

Committee for Justice and Liberty v. Can. (SCC, 1975)

The issue in this appeal arose in connection with the organization of hearings by the National Energy Board to consider competing applications for a Mackenzie Valley pipeline, i.e. applications for a certificate of public convenience and necessity under s. 44 of the National Energy Board Act, R.S.C. 1970, c. N-6. The Board assigned Mr. Crowe, Chairman of the Board, and two other of its members to be the panel to hear the applications. The appellants were recognised by the Board as “interested persons” under s. 45 of the Act. The appellants objected to the participation of Mr. Crowe as a member of the panel because of reasonable apprehension or reasonable likelihood of bias: Mr. Crowe became Chairman and Chief Executive Officer of the National Energy Board on October, 15, 1973. Immediately prior to that date he was president of the Canada Development Corporation, having assumed that position late in 1971 after first having been a provisional director following the enactment of the Canada Development Corporation Act, 1971 (Can.), c. 49. The objects of that Corporation included assisting in business and economic development and investing in shares, securities, ventures, enterprises and property to that end. As Corporation president and as its representative Mr. Crowe was associated with the Gas Arctic-Northwest Project Study Group which considered the physical and economic feasibility of a northern natural gas pipeline to bring natural gas to southern markets. The Agreement setting up the Study Group brought together two groups of companies which merged their efforts and pursuant to the agreement set up two companies of which Canadian Arctic Gas Pipeline Limited was one. Mr. Crowe was an active participant in the Study Group as a member of its Management Committee and a member and subsequently vice-

chairman of its Finance, tax and accounting committee and during his period of membership of the Management Committee he participated in the seven meetings held during that time and joined in a unanimous decision of the Committee on June 27, 1973, respecting the ownership and routing of a Mackenzie Valley pipeline. The Canada Development Corporation remained a full participant in the Study Group until long after the applications were made for certificates of public convenience and necessity and until after the hearings had commenced, in effect to the time of the reference of the question of reasonable apprehension of bias in Mr. Crowe to the Federal Court of Appeal. Further, during the period of Mr. Crowe’s association with the Study Group as the representative of the Canada Development Corporation the latter contributed $1,200,000 to the Study Group as its share of expenses. The National Energy Board referred to the Federal Court of Appeal the following question, “Would the Board err in rejecting the objection and in holding that Mr. Crowe was not disqualified from being a member of the panel on grounds of reasonable apprehension or reasonable likelihood of bias?” pursuant to the Federal Court Act, 1970-71-72 (Can.), c. 1, s. 28(4). That Court answered in the negative.

Held (Martland, Judson and de Grandpré JJ. dissenting): The appeal should be allowed.

Per Laskin C.J. and Ritchie, Spence, Pigeon and Dickson JJ.: In dealing with applications under s. 44 of the National Energy Board Act, the function of the Board is quasi-judicial, or, at least, is a function which the Board must discharge in accordance with the rules of natural justice: and if not necessarily the full range of such rules as would apply to a Court (though the Board is a court of record under s. 10 of the Act) certainly to a degree that would reflect integrity of its proceedings and impartiality in the conduct of those proceedings. A reasonable apprehension of bias arises where there exists a reasonable probability that the judge might not act in an entirely impartial manner. The issue in this situation was not one of actual bias. Thus the facts that Mr. Crowe had nothing to gain or lose either through his participation in the Study Group or in making decisions as chairman of the National Energy Board and that his participation in the Study Group was in a representative capacity became irrelevant. The participation of Mr. Crowe in the discussions and decisions leading to the application by Canadian Arctic Gas Pipeline Limited for a certificate did however give rise to a reasonable apprehension, which reasonably well-informed persons could properly have, of a biased appraisal and judgment of the issues to be determined. The test of probability or reasoned suspicion of bias, unintended though the bias may be, is grounded in the concern that there be no lack of public confidence in the impartiality of adjudicative agencies, and emphasis is added to this concern in this case by the fact that the Board is to have regard for the public interest.

Per Martland, Judson and de Grandpré JJ. dissenting: The proper test to be applied was correctly expressed by the Court of Appeal. The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information, the test of “what would an informed person, viewing the matter realistically and practically—conclude?” There is no real difference between the expression found in the decided cases “reasonable apprehension of bias”, “reasonable suspicion of bias” or “real likelihood of bias” but the grounds for the apprehension must be substantial. The question of bias in a member of a court of justice cannot be examined in the same light as that in a member of an administrative tribunal entrusted with an administrative discretion. While the basic principle that natural justice must be rendered is the same its application must take into account

the special circumstances of the tribunal. By its nature the National Energy Board must be staffed with persons of experience and expertise. The considerations which underlie its operations are policy oriented. The basic principle in matters of bias must be applied in the light of the circumstances of the case at bar. The Board is not a court nor is it a quasi-judicial body. In hearing the objection of interested parties and in performing its statutory function the Board has the duty to establish a balance between the administration of policies which they are duty bound to apply and the protection of the various interests spelled out in s. 44 of the Act. In reaching its decision the Board draws upon its experience, upon that of its own experts and upon that of all agencies of the Government of Canada. The Board is not and cannot be limited to deciding the matter on the sole basis of the representations made before it. In the circumstances of the case the Court of Appeal rightly concluded that no reasonable apprehension of bias by reasonable, right minded and informed persons exists.

Wewaykum Indian Band (SCC, 2004)

Two bands of the Laich-kwil-tach First Nation claim each other’s reserve land.  Each reserve has been possessed by the incumbent band since the end of the 19th century.  Neither band claims title based on an existing aboriginal or treaty right but each band, resting its claim on contemporaneous documentation of the Department of Indian Affairs, says it would possess both reserves but for breaches of fiduciary duty by the federal Crown.  The bands seek declarations against each other and equitable compensation from the federal Crown.  The Cape Mudge Band, the Wewaikai, seeks Reserve 11 and the Campbell River Band, the Wewaykum, claims Reserve 12.   

The claim of the Cape Mudge Band starts with the 1888 report of a federal government surveyor which recommended the creation of Reserves 11 and 12.  These reserves were not identified as allocated to a particular band, but rather to the “Laich-kwil-tach (Euclataw) Indians”.  The 1892 schedule of Indian reserves published by the Department of Indian Affairs, listing reserve allocations to bands, repeated this allocation.  By 1900, Reserves 11 and 12 were shown on the schedule as allocated to the “Wewayakai [Cape Mudge] band”.  On numerically ordered lists of reserves, the name We-way-akay was inscribed opposite Reserve 7 and ditto marks were inscribed below that name opposite Reserves 8 to 12.  The Cape Mudge Band on that basis claims both reserves although it was not, and never had been, in occupation of Reserve 11. The claim of the Campbell River Band flows from a 1905 dispute between the two bands over fishing rights, which led to a dispute over possession of Reserve 11.  In a 1907 Resolution, the Cape Mudge Band ceded any claim over Reserve 11 to the Campbell River Band subject to the retention of common fishing rights.  The effect of the resolution was recorded in a change to the departmental schedule.  The name of the “We-way-akum band” was entered opposite Reserve 11, but in what became known as the “ditto mark error”, the ditto marks against Reserve 12, directly beneath it, remained unchanged.  The Campbell River Band relies on the departmental schedule, as changed, as evidence of its right to both Reserve 11 and Reserve 12. 

In 1912, the McKenna McBride Commission visited the proposed reserves in the Campbell River area.  It acknowledged that Reserve 11 was properly allocated to the Campbell River Band and noted the error with respect to Reserve 12 which, because of the ditto marks, appeared in the schedule as being also allocated to that band.  In their respective submissions to the Commission, in accordance with actual incumbency, the Campbell River Band made no claim to Reserve 12 and the Cape Mudge Band made no claim to Reserve 11.  However, the “ditto mark error” on the schedule was not corrected. 

In 1924, by Orders-in-Council, the British Columbia government and the federal government adopted the McKenna McBride recommendations with respect to Reserves 11 and 12.  In 1928, the Indian Commissioner recommended that Reserve 12, which had always been claimed by the Cape Mudge Band, should officially be recognized as belonging to that band and the federal schedule modified accordingly.  Both bands retained legal counsel to investigate.  In 1936 and 1937, each band issued a declaration listing its reserves.  Neither band listed the other’s reserve it now claims.  In 1938, British Columbia issued Order-in-Council 1036 which transferred administration and control of the subject lands to the Crown in right of Canada.  In 1943, Indian Affairs published a corrected schedule of reserves listing Reserve 11 for the Campbell River Band and Reserve 12 for the Cape Mudge Band.  No formal amendments were made to orders-in-council that had appended the previous faulty schedules.  The dispute resurfaced in the 1970s and, in 1985, the Campbell River Band initiated its action against the Crown and the Cape Mudge Band.  The Cape Mudge Band counterclaimed for exclusive entitlement to both reserves and, in 1989, added a claim against the Crown.  After 80 days of evidence and submissions, the Federal Court, Trial Division dismissed  both bands’ claims and the Federal Court of Appeal upheld that decision.  Held:  The appeals should be dismissed. The legal requirements to create a reserve within the meaning of the Indian Act   include an act by the Crown to set apart Crown land for use by a band, an intent to create a reserve on the part of persons with the authority to bind the Crown, and practical steps by the Crown and the Indian band to realize that intent.  Reserve Creation in British Columbia

When British Columbia joined Confederation in 1871, Article 13 of the Terms of Union provided for the creation of reserves.  Federal-provincial cooperation was thus required because Crown lands from which reserves would be established were retained as provincial property yet the federal government had jurisdiction over Indians and lands reserved for Indians.  The reserve-creation process was completed in 1938 by virtue of B.C. Order-in-Council 1036 which transferred to the federal Crown administration and control of land on which the reserves were to be established.  When the subject lands were transferred, the federal Crown intended to set apart each reserve for the beneficial use and occupation of the present incumbent.  Each band accepted the status quo and made use of the reserves allocated to it. 

The surrender provisions of the Indian Act   did not apply to these pre-1938 adjustments because (i) the resolution of a “difference of opinion” between sister bands of the same First Nation to which the land had been allocated in the first instance should not be characterized as a surrender, (ii) the lands were not Indian Reserves within the meaning of the Indian Act   prior to 1938, and (iii) in any event the operation of the surrender provisions of the Indian Act   had been suspended (to the extent they were capable of application) by Proclamation of the Privy Council made December 15, 1876. Rectification of Orders in Council

The Federal Court purported to “rectify” the faulty Schedule to Order-in-Council 1036.  Judicial correction of perceived errors in legislative enactments, in the rare instances where they can be justified, is performed on the basis that the corrected enactment expresses the intent of the enacting body.  The clerical error is generally apparent on the face of the enactment itself.  Here, however, the mistake was made at the federal level in the Department of Indian Affairs.  It was noted but not corrected by the McKenna McBride Commission.  The Schedules in their uncorrected form were attached by the provincial government to its Order-in-Council 1036.  The permissible constitutional scope of the provincial “intent” in relation to “lands reserved for Indians” was limited to the size, number and location of reserves to be transferred by it to the administration and control of the Crown in right of Canada.  The federal Order-in-Council has been interpreted, in practice, without regard to the “ditto mark error”.  In these circumstances, rectification was not an appropriate remedy.  The solution to these appeals does not lie in the law of rectification but in the law governing the fiduciary duty alleged and the equitable remedies sought by the appellant bands. The Existence of a Fiduciary Duty The existence of a public law duty does not exclude the possibility that the Crown undertook, in the discharge of that public law duty, obligations “in the nature of a private law duty” towards aboriginal peoples.  A fiduciary duty, where it exists, is called into existence to facilitate supervision of the high degree of discretionary control gradually assumed by the Crown over the lives of aboriginal peoples. However, even in the traditional trust context, not all obligations existing between the parties to a well-recognized fiduciary relationship are themselves fiduciary in nature.  Equally, not all fiduciary relationships and not all fiduciary obligations are the same.  They are shaped by the demands of the situation.  These observations are of particular importance in a case where the fiduciary is also the government. The Content of the Fiduciary Duty The content of the Crown’s fiduciary duty towards aboriginal peoples varies with the nature and importance of the interest to be protected.  The appellants seemed at times to invoke the “fiduciary duty” as a source of plenary Crown liability covering all aspects of the Crown-Indian band relationship.  This overshoots the mark.  The fiduciary duty imposed on the Crown does not exist at large but in relation to specific Indian interests.  Fiduciary protection accorded to Crown

dealings with aboriginal interests in land (including reserve creation) has not to date been recognized by this Court in relation to Indian interests other than land outside the framework of s.   35(1)   of the Constitution Act, 1982   .   Prior to reserve creation, the Crown exercises a public law function under the Indian Act   , which is subject to supervision by the courts exercising public law remedies.  At that stage, a fiduciary relationship may also arise but, in that respect, the Crown’s duty is limited to the basic obligations of loyalty, good faith in the discharge of its mandate, providing full disclosure appropriate to the subject matter, and acting with ordinary prudence with a view to the best interest of the aboriginal beneficiaries.  Once a reserve is created the Crown’s fiduciary duty expands to include the protection and preservation of the band’s quasi-proprietary interest in the reserve from exploitation.  The Crown must use diligence to protect a band’s legal interest from exploitative bargaining with third parties or from exploitation by the Crown itself.  When exercising ordinary government powers in matters involving disputes between Indians and non-Indians, the Crown was (and is) obliged to have regard to the interest of all affected parties, not just the Indian interest.  The Crown can be no ordinary fiduciary; it wears many hats and represents many interests, some of which cannot help but be conflicting.

Here, the federal Crown’s mandate was to create a new interest for the bands in lands not subject to treaty or aboriginal rights claims.  The nature and importance of the appellant bands’ interest in these lands prior to 1938, and the Crown’s intervention as the exclusive intermediary to deal with others, including the province, on their behalf, imposed a fiduciary duty on the Crown but there is no persuasive reason to conclude that the obligations of loyalty, good faith and disclosure of relevant information were not fulfilled.  After the creation of the reserve, the Crown did preserve and protect each band’s legal interest in its allocated reserve.   By the time the reserves creation process was completed in 1938, each of the appellant bands had formally abandoned the claim it now asserts to the other’s reserve.  They had manifested on several occasions their acknowledgement that the beneficial interest in Reserve 11 resided in the Campbell River Band and the beneficial interest in Reserve 12 resided in the Cape Mudge Band.   The Band leadership in those years,  whose conduct is now complained of, were autonomous actors, apparently fully informed, who intended in good faith to resolve a “difference of opinion” with a sister band.  They were not dealing with non-Indian third parties.  It is patronizing to suggest, on the basis of the evidentiary record, that they did not know what they were doing, or to reject their evaluation of a fair outcome.   Defences to Equitable Remedies Enforcement of equitable duties by equitable remedies is subject to the usual equitable defences, including laches and acquiescence.  Equitable remedies require equitable conduct by the claimant and are always subject to the discretion of the court.  

Both branches of the doctrine of laches and acquiescence are applicable in this case:  conduct equivalent to a waiver is found in the declarations, representations and failures to assert the

alleged rights in circumstances that required assertion; and prosecution of the claim would, in each case, be unreasonable because each band relied on the status quo and improved its reserve under the understanding that the other band made no further claim.  All of this was done with sufficient knowledge of the underlying facts relevant to a possible claim. On the evidence, no fiduciary duty has been breached and no “equitable” remedy is available either to dispossess an incumbent band that is entitled to the beneficial interest, or to require the Crown to pay “equitable” compensation for its refusal to bring about such a wrongful dispossession.  Application of Limitation Periods In any event, the appellant bands’ claims are barred by the expiry of the applicable limitation periods.  Section 39(1)   of the Federal Court Act   incorporates by reference the applicable British Columbia limitation legislation.  The Campbell River Band’s claim for possession of Reserve 12 was complete no later than in 1938 and was subject to a 20-year limitations period under s. 16 of the 1897 B.C. Statute of Limitations.  The Cape Mudge Band’s claim for possession of Reserve 11 arose when the Campbell River Band went into possession of that reserve prior to 1888 and was extinguished around the time the band signed the 1907 Resolution.  Even if the running of the limitation periods was postponed due to a lack of pertinent information, all relevant facts were known to both bands when they made their declarations in 1936 and 1937.  The limitation periods applicable to the claims for possession, therefore, expired no later than 1957.  As to breach of fiduciary duty, the 1897 Statute of Limitations, in force between 1897 and 1975, imposed no limitation on such claims.  The transitional provisions of the 1975 Limitations Act therefore apply.  By virtue of ss. 3(4) and 14(3) of the 1975 Act, the actions based on breach of fiduciary duty were barred as of July 1, 1977.  In any case, the claims asserted in these proceedings were all caught by the 30-year “ultimate limitation period” in s. 8 of the 1975 Act.

Brosseau v. Alberta (Securities Commission) (SCC, 1990)

Appellant Brosseau, in his capacity as solicitor, prepared the prospectus of a company that later went into bankruptcy.  The R.C.M.P. and the Alberta Securities Commission conducted separate investigations into the affairs of the company.  The investigation initiated by the Securities Commission found no evidence of any violations of the Securities Act.  The R.C.M.P. investigation, however, resulted in the laying of criminal charges against Brosseau and a colleague, Barry.  The charges related to the making of false or misleading statements in the prospectus under the `old' Securities Act, R.S.A. 1970, c. 333.     The Commission's investigation was reopened when the Assistant Deputy Minister of the Department of Consumer and Corporate Affairs informed the Chairman that litigation was pending concerning the collapse of the company, and that the Alberta Government was named as a party.  There was a suggestion in some documents that the Alberta Government felt that any liability which attached to it would do so because of negligence on the part of the Commission. 

The Chairman forwarded the materials received from the Assistant Deputy Minister to the Deputy Director, Enforcement, of the Securities Commission.  A review was conducted, and a copy of the Commission's staff report was given to the Chairman in March 1984.     The Alberta Securities Commission gave a notice of hearing to determine if Brosseau and Barry should be made subject to a cease trading order and/or possible deprivation of certain statutory exemptions.  Brosseau and Barry, after their acquittal on the criminal charges in 1985, brought a preliminary application before the Alberta Securities Commission seeking an order and declaration that the Commission had no jurisdiction to hold a hearing against them.  The Commission ruled it had jurisdiction pursuant to s. 26 of the "new" Securities Act, S.A. 1981, c. S-6.1, denied the application and directed that the hearing continue.  An appeal to the Alberta Court of Appeal was dismissed.  Barry discontinued his appeal before this Court and appellant Brosseau restricted his to two issues.  The first was whether or not there was a reasonable apprehension of bias given the fact that the Commission Chairperson, in his investigative capacity, had received a report prior to the hearing from the Deputy Director of Enforcement.  The second was whether or not the action taken by the Commission under the "new" Securities Act attracted the presumption against the retrospectivity of statutes.  Before this Court, the appellant abandoned all argument based on s. 11 of the Charter.     Held:  The appeal should be dismissed.     The facts of this case neither raise a reasonable apprehension of bias nor do they undermine public confidence in the impartiality of the Securities Commission.     The principle that no one should be a judge in his own action underlies the doctrine of "reasonable apprehension of bias".  An exception occurs, however, where an overlap of functions is authorized by statute.     It was not necessary to decide to what extent the Chairman initiated the investigation because the Act contemplated his involvement at several stages of the proceedings.     The broad and formal investigatory powers granted the Commission by s. 28 of the Securities Act suggest that the Commission has the implied authority to conduct a more informal internal review.  The Commission logically would first investigate the facts before ordering a s. 28 investigation.  Only if irregularities were uncovered would the Commission proceed to either a more thorough s. 28 investigation or a hearing to probe more deeply into the matter.     Securities commissions, by their nature, undertake several different functions.  The Commission's empowering legislation clearly indicates that the Commission was not meant to act like a court in conducting its internal reviews and certain activities, which might otherwise be considered "biased", form an integral part of its operations.  A section 28 investigation is of a different nature from this type of proceeding.     A security commission's protective role, which gives it a special character, its structure and responsibilities, must be considered in assessing allegations of bias.  A "reasonable apprehension of bias" affecting the Commission as a whole cannot be said to exist if the Chairman did not act

outside of his statutory authority and if there were no evidence to show involvement beyond the Chairman's fulfilling his statutory duties.     The Chairman, as Chief Executive Officer of the Commission, did not exceed the bounds of authority of his office.  The report in question was also made available to the appellant.     There was no element of "improper purpose" in the Commission's conduct of the proceedings against the appellant.  Any suspicion that the Commission's actions were motivated with a view to escaping its own potential liability in any pending litigation was not supported by the evidence.     The presumption against retrospectivity, that statutes are not to be construed as having retrospective operation unless such a construction is expressly or by necessary implication required by the language of the Act, applies only to "penal" statutes.  It does not apply to statutes imposing a penalty related to a past event, so long as the goal of the penalty is not to punish the person in question, but to protect the public.  The provisions here are designed to disqualify persons from trading in securities that the Commission found to have committed acts calling their business integrity into question.  The presumption against the retrospective effect of statutes is effectively rebutted because these provisions in question are designed to protect the public in keeping with the general regulatory role of the Commission.

Chretien v. Gomery Commission (FCC, 2008)

This was an application for judicial review in respect of the report of the Commission of Inquiry into the Sponsorship Program and Advertising Activities entitled Who is Responsible?: Fact Finding Report. The Commission was established as a result of questions raised in the Auditor General of Canada’s 2003 Report concerning the federal government’s Sponsorship Program. Its Commissioner, the Honourable Justice John H. Gomery, was given a double mandate to investigate and report on the program, and to make recommendations based on his factual findings. In compliance with his mandate, the Commissioner was required to submit two reports. The scope of this judicial review was limited to the first report, wherein the Commissioner was to provide his factual conclusions after completing the hearings of Phase I of his mandate.

At issue was whether Commissioner Gomery breached the duty of procedural fairness by, inter alia, demonstrating a reasonable apprehension of bias.       Held, the application should be allowed.      The requirements of procedural fairness depend on the nature and function of the administrative board. The five factors identified in Baker v. Canada (Minister of Citizenship and Immigration) were considered to determine the content of the duty of fairness owed to persons appearing before the Commission. Although the nature of the proceedings did not provide for the same level of procedural fairness as that required in a trial, the potential damage that the findings of the Commission could have on the reputations of the parties involved in the investigation was of

such serious consequence that a high degree of fairness was required. The standard of impartiality expected of a decision maker is variable depending on his or her role and function.      There was more than sufficient evidence to find that an informed person, viewing the matter realistically and practically and having thought the matter through, would find a reasonable apprehension of bias on the part of the Commissioner. His comments on the record, to the media, and after the inquiry had concluded, viewed cumulatively, not only indicated that he prejudged issues but also that he was not impartial toward the applicant. Among other things, the Commissioner was not in a position to confirm the findings of the Auditor General or to conclude that the Sponsorship Program was “run in a catastrophically bad way” after conducting only three months of hearings, as he had not heard the testimony of all witnesses who were to appear before the Commission. Also, to conclude that the mismanagement was “catastrophic” before hearing all the evidence undermined the very purpose of the Commission of Inquiry, creating a sense that the proceedings were perfunctory in nature. Other comments made by Commissioner Gomery before all the evidence had been heard trivialized the proceedings and bore a pejorative connotation. Still others damaged the applicant’s reputation by fostering suspicion of the applicant and raising doubts about his integrity. The applicant was put in a position in which he was caused to appear before a commission that had publicly questioned his conduct and integrity before he had even appeared before it. The Commissioner’s preoccupation with the media outside the hearing room had a detrimental impact on the fairness of the proceedings. The only appropriate forum in which a decision maker is to become engaged is within the hearing room of the very proceeding over which he or she is presiding. Comments revealing impressions and conclusions related to the proceedings should not be made extraneous to the proceedings either prior, concurrently or even after the proceedings have concluded. For these reasons, the findings in the Commissioner’s report, as they related to the applicant, were set aside.

Old St. Boniface v. City of Winnipeg (SCC, 1990)

Winnipeg approved a proposed land development in Old St. Boniface, and adopted the recommendations of the Finance Committee, the Community Committee, the Planning and Community Services Committee and, ultimately, City Council that the land in question be rezoned to permit the erection of two condominium towers, that certain streets be closed and that the streets, together with other city-owned land, be sold to the developer.  Prior to public hearings before the Community Committee on the application for rezoning submitted by the intended purchaser of the lands, a municipal councillor had been personally involved in the planning of the proposed development and had appeared as advocate in support of the application at in camera private meetings of the Finance Committee.  An election intervened during the period between public meetings in which the councillor took part, and he was re-elected.  At the public meetings, he did not disclose his earlier involvement with the application.     Before the re-zoning by-law was passed, the appellant attacked the process by way of originating motion filed in the Court of Queen's Bench.  The motions judge quashed the Committee's decision, prohibited the passing of the rezoning by-law, and adjourned the appellant's application to quash the street-closing by-law.  The City was further prohibited from

implementing or acting upon the street-closing by-law until further ordered by the court.  The respondents' appeal to the Court of Appeal for Manitoba was allowed and the appellant's cross-appeal concerning the street-closing by-law was dismissed.     The issues raised in this appeal are: (1) whether the municipal councillor was disqualified by reason of bias from participating in the proceedings of the Community Committee; (2) whether the application for rezoning, which was made by someone other than the owner of the subject land, complied with s. 609(1) of the City of Winnipeg Act; (3) whether the zoning by-law failed to comply with the Greater Winnipeg development plan ("Plan Winnipeg"); and (4) whether the Community Committee acted in bad faith or in violation of a reasonable expectation of consultation.     Held (La Forest, L'Heureux-Dubé and Cory JJ. dissenting): The appeal should be dismissed.     Per Dickson C.J. and Wilson, Sopinka, Gonthier, and McLachlin JJ.:  Wiswell v. Metropolitan Corporation of Greater Winnipeg was distinguished.  A flexible approach based on the context is now taken with respect to the test to be applied for disqualifying bias.  Here, it would not be appropriate to apply the test of a reasonable apprehension of pre-judgment with full vigour simply because of the councillor's appearance as advocate for the development proposal before the Finance Committee. The Legislature could not have intended that the rule requiring a tribunal to be free of an appearance of bias apply to members of Council with the same force as in the case of other tribunals whose character and functions more closely resemble those of a court.  Some degree of prejudgment is inherent in the role of a municipal councillor.  Nor, however, could the Legislature have intended that there be a hearing before a body which has already made an irreversible decision.     The applicable test is that objectors or supporters be heard by members of Council who are capable of persuasion.  This test is consistent with the functions of a municipal councillor and enables him or her to carry out the political and legislative duties entrusted to the councillor.  The party alleging disqualifying prejudgment must establish that any representations at variance with the adopted view would be futile.  Statements by individual members of Council, while they may give rise to an appearance of bias, will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter.     On the other hand, there is nothing inherent in the councillors' hybrid functions that would make it mandatory or desirable to excuse them from the requirement that they refrain from dealing with matters in respect of which they have either a personal or other interest.  Where such an interest is found, both at common law and by statute, a member of Council is disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that it might influence the exercise of that duty.  The motions judge erred in applying the reasonable apprehension of bias test once he had found that the councillor whose impartiality was in question had no personal interest in the development, either pecuniary or by reason of a relationship with the developer. 

    Per Lamer C.J.: The reasons of La Forest J. in Save Richmond Farmland Society v. Richmond (Township) were agreed with.  Applying his test to the facts of this case, the appeal should be dismissed.     On the issue of conformity with Plan Winnipeg, the reasons of Sopinka J. were agreed with.     Per La Forest, L'Heureux-Dubé and Cory JJ. (dissenting):  The City was precluded from adopting the zoning by-law in question without first amending Plan Winnipeg.  The zoning power of Council is constrained by the community plan, the amendment of which involves consultation with community committees and requires the entire council, rather than simply the executive policy committee, to deliberate on the plan by-law.  In adopting a by-law which does not conform to the plan, Council oversteps its statutory authority.     The proposed condominium represented a derogation from Plan Winnipeg.  If the City wished to permit development that conflicted with the policy of the Plan, it was first required to seek amendment to the Plan.  The procedures for amendment provide for public participation at all stages of policy development and it was not open to Council to circumvent the public process by the simple passage of a zoning by-law.     Judicial review is not inappropriate in this case.  The designated commissioner, who determines whether a by-law conforms to the Plan, is not independent of Council but, rather, is appointed by and may be dismissed by Council.  Furthermore, there is no privative clause.  It is therefore open to the courts to overturn a decision which is legally incorrect.  The land in question was clearly designated as parkland on the Plan policy map and the condominium development could not be said to conform to the Plan.

Newfoundland Tel. Co. v. Newfoundland (SCC, 1992)

Respondent Board, whose members are appointed by cabinet subject only to the qualification that they not be employed by or have an interest in a public utility, regulates appellant.  One commissioner, a former consumers' advocate playing the self-appointed role of champion of consumers' rights on the Board, made several strong statements which were reported in the press against appellant's executive pay policies before a public hearing was held by the Board into appellant's costs.  When the hearing commenced, appellant objected to this commissioner's participation on the panel because of an apprehension of bias.  The Board found that it had no jurisdiction to rule on its own members and decided that the panel would continue as constituted.  A number of public statements relating to the issue before the Board were made by this commissioner during the hearing and before the Board released its decision which (by a majority which included the commissioner at issue) disallowed some of appellant's costs.  A minority would have allowed these costs.  Appellant appealed both the order of the Board and the Board's decision to proceed with the panel as constituted to the Court of Appeal.                    The Court of Appeal found that the Board had complete jurisdiction to determine its own procedures and all questions of fact and law and that it declined to exercise its jurisdiction when it refused to remove the commissioner from the panel.  Although the court concluded that

there was a reasonable apprehension of bias, it held that the Board's decision was merely voidable and that, given that the commissioner's mind was not closed to argument, the Board's order was valid.                    The issues under consideration here were:  (1) the extent to which an administrative board member may comment on matters before the board and, (2) the result which should obtain if a decision of a board is made in circumstances where a reasonable apprehension of bias is found.                    Held:  The appeal should be allowed.                    The duty of fairness applies to all administrative bodies.  The extent of that duty, however, depends on the particular tribunal's nature and function.  The duty to act fairly includes the duty to provide procedural fairness to the parties.  That simply cannot exist if an adjudicator is biased.  Because it is impossible to determine the precise state of mind of an adjudicator who has made an administrative board decision, an unbiased appearance is an essential component of procedural fairness.  The test to ensure fairness is whether a reasonably informed bystander would perceive bias on the part of an adjudicator.                    There is a great diversity of administrative boards.  Those that are primarily adjudicative in their functions will be expected to comply with the standard applicable to courts:  there must be no reasonable apprehension of bias with regard to their decision.  At the other end of the scale are boards with popularly elected members where the standard will be much more lenient.  In such circumstances, a reasonable apprehension of bias occurs if a board member pre-judges the matter to such an extent that any representations to the contrary would be futile.  Administrative boards that deal with matters of policy will be closely comparable to the boards composed of elected members.  For those boards, a strict application of a reasonable apprehension of bias as a test might undermine the very role which has been entrusted to them by the legislature.                    A member of a board which performs a policy-formation function should not be susceptible to a charge of bias simply because of the expression of strong opinions prior to the hearing.  As long as those statements do not indicate a mind so closed that any submissions would be futile, they should not be subject to attack on the basis of bias.  Statements manifesting a mind so closed as to make submissions futile would, however, even at the investigatory stage, constitute a basis for raising an issue of apprehended bias.  Once the matter reaches the hearing stage a greater degree of discretion is required of a member.                    The statements at issue here, when taken together, indicated not only a reasonable apprehension of bias but also a closed mind on the commissioner's part on the subject.  Once the order directing the holding of the hearing was given, the Utility was entitled to procedural fairness.  At the investigative stage, the "closed mind" test was applicable but once matters proceeded to a hearing, a higher standard had to be applied.  Procedural fairness at that stage required the commission members to conduct themselves so that there could be no reasonable apprehension of bias. 

                   A denial of a right to a fair hearing cannot be cured by the tribunal's subsequent decision.  A decision of a tribunal which denied the parties a fair hearing cannot be simply voidable and rendered valid as a result of the subsequent decision of the tribunal.  The damage created by apprehension of bias cannot be remedied.  The hearing, and any subsequent order resulting from it, must be void.  The order of the Board of Commissioners of Public Utilities was accordingly void.

Canadian Pacific v. Matsqui Indian Band (SCC, 1995)

Amendments to the Indian Act   enabled First Nations bands to pass their own by-laws for the levying of taxes against real property on reserve lands.  The appellant bands each developed taxation and assessment by-laws which were implemented following the Minister's approval.  The Matsqui Band's assessment by-law provided for the appointment of Courts of Revision to hear appeals from the assessments, the appointment of an Assessment Review Committee to hear appeals from the decisions of the Courts of Revision and, finally, an appeal on questions of law to the Federal Court, Trial Division from the decisions of the Assessment Review Committee.  The other bands provided for a single hearing before a Board of Review, with an appeal to the Federal Court, Trial Division.  All the by-laws provided that members of the appeal tribunals could be paid, but did not mandate that they indeed be paid, and gave no tenure of office so that members might not be appointed to sit on future assessment appeals.  Members of the bands could be appointed to the tribunals.                    The appeals were heard concurrently at all levels and turned on essentially identical facts.  Each appellant sent the respondent, Canadian Pacific Limited ("CP"), a notice of assessment in respect of the land forming its rail line which ran through the reserves.  The Matsqui Band also sent a notice of assessment to the respondent, Unitel Communications Inc., which laid fibre optic cables on the CP land.                    The respondents commenced an application for judicial review in the Federal Court, Trial Division, requesting that the assessments be set aside.  CP claimed that its land could not be taxed by the appellant bands because it possessed fee simple in the rail line and the rail line therefore formed no part of the reserve lands.  The appellants brought a motion to strike the respondents' application for judicial review on the grounds that:  (a) the application was directed against a decision which could not be the subject of judicial review because of an eventual right of appeal to the Federal Court, Trial Division or, alternatively; (b) the assessment by-laws provided for an adequate alternative remedy -- an eventual right of appeal to the Federal Court, Trial Division.  The motions judge accepted the second of these arguments and struck out the respondents' application for judicial review.  The Federal Court of Appeal allowed an appeal from this decision, set it aside and dismissed the appellants' motion to strike.  At issue was whether the motions judge properly exercised his discretion to strike the respondents' application for judicial review, thereby requiring them to pursue their jurisdictional challenge through the appeal procedures established by the appellant bands.  The determination of whether or not the land was "in the reserve" was not at issue. 

                   Held (L'Heureux-Dubé, Sopinka, Gonthier and Iacobucci JJ. dissenting):  The appeal should be dismissed. Adequacy of the Appeal Tribunals and the Exercise of Discretion on Judicial Review                    Per Lamer C.J. and L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.:  Administrative tribunals can examine the boundaries of their jurisdiction although their decisions in this regard lack the force of res judicata.  Their determinations are reviewable on a correctness standard and will generally be afforded little deference.  Here, the jurisdiction of the appeal tribunals includes both the classification of taxable property and the valuation of that property, as the words "assessment"/"évaluation" used in s.   83(3)   of the Indian Act   refer to the entire process undertaken by tax assessors.  A purposive analysis favours this "process approach".  Parliament clearly intended the bands to assume control over the assessment process on the reserves, since the entire scheme would be pointless if assessors were unable to engage in the preliminary determination of whether land should be classified as taxable and thereby placed on the taxation rolls.                    The Federal Court, Trial Division and the appeal tribunals established under s.   83(3)   of the Indian Act   have concurrent jurisdiction to hear and decide the question of whether the respondents' land is "in the reserve".  In keeping with the traditionally discretionary nature of judicial review, judges of the Federal Court, Trial Division have discretion in determining whether judicial review should be undertaken.  In determining whether to undertake judicial review rather than requiring an applicant to proceed through a statutory appeal procedure, courts should consider:  the convenience of the alternative remedy, the nature of the error, and the nature of the appellate body (i.e., its investigatory, decision-making and remedial capacities).  The category of factors should not be closed, as it is for courts in particular circumstances to isolate and balance the factors that are relevant.                    The adequacy of the statutory appeal procedures created by the bands, and not simply the adequacy of the appeal tribunals, had to be considered because the bands had provided for appeals from the tribunals to the Federal Court, Trial Division.  Certain factors are relevant only to the appeal tribunals (i.e., the expertise of members, or allegations of bias) or to the appeal to the Federal Court, Trial Division (i.e., whether this appeal is intra vires the bands).  In applying the adequate alternative remedy principle, all these factors must be considered in order to assess the overall statutory scheme.                    It was not an error for the motions judge to consider the policy underlying the scheme in determining how to exercise his discretion to undertake judicial review.  He could reasonably conclude that, since the scheme was part of the policy promoting Aboriginal self-government, allowing the respondents to circumvent the appeal procedures would be detrimental to the overall scheme.                    The bands have jurisdiction to create by-laws with appeals to the Federal Court, Trial Division.  Section 18.5   of the Federal Court Act   does not set down conditions for the creation of statutory appeals from decisions of federal tribunals; it only limits the judicial review powers of the Federal Court, Trial Division where a statutory right of appeal exists.  Section 24(1)  

provides that the Trial Division has exclusive original jurisdiction to hear and determine all appeals that, under any Act of Parliament, may be taken to the court.  The appeal procedures here fell squarely within this section because they were authorized "under" s.   83(3)   of the Indian Act   .                    Parliament intended the bands to have considerable scope for creating appeal procedures through their by-laws, with the caveat that such procedures would be "subject to the approval of the Minister" (s.   83(1)   ).  The Minister approved all of the by-laws at issue, clearly believing that the power to create appeals to the Federal Court, Trial Division was intra vires the bands.  The courts should not narrow the scope of possible appeal procedures available to the bands.                    The question to be determined was whether the appeal tribunals here were adequate fora; it was not necessary to consider whether they were better fora than the courts.  They allowed for a wide-ranging inquiry into all of the evidence and were considered by Parliament to be equipped to deal with complex issues that might come before them.  Section 18.3(1)   of the Federal Court Act   allows an appeal tribunal to seek the guidance of the courts if it encounters legal, procedural or other issues which it cannot resolve.                    It was reasonable for the motions judge to consider the following factors in exercising this discretion:  (1) the tribunals were adequate for purposes of conducting a far-reaching and extensive inquiry at first instance; (2), the statutory appeal procedure provided an appeal from the tribunals to the Federal Court, Trial Division where a decision could be taken with the force of res judicata; and (3), the policy of promoting the development of Aboriginal governmental institutions favoured resolving the dispute within the statutory appeal procedures.                    Per La Forest J.:  The Federal Court, Trial Division and the appeal tribunals established under s. 83(3)   of the Indian Act   have concurrent jurisdiction to address the question whether the respondents' land is "in the reserve".  The motions judge, however, did not exercise his discretion properly in deciding that the band appeal tribunal system constitutes an adequate alternative remedy in this context.  Determining whether the respondents' land is "in the reserve" is a jurisdictional question that brings into play discrete and technical legal issues falling outside the specific expertise of the band appeal tribunals.  It is ultimately a matter for the judiciary.  The band appeal procedure is not an adequate remedy since any decision by a band appeal tribunal regarding this question will lack the force of res judicata and will be reviewable by the Federal Court, Trial Division on a standard of correctness.  The respondents should be allowed the opportunity to have this jurisdictional question determined with the force of res judicata by the Federal Court at the outset without being compelled to proceed through a lengthy, and possibly needless, band appeal process.                    Per McLachlin and Major JJ.:  The adequate alternative remedies principle does not apply to a jurisdictional issue.  Here, the assessment review board has jurisdiction to determine all questions relating to the valuation of land "within the reserve" but has no jurisdiction to determine whether a parcel of land is "within the reserve".  Deciding whether land is "within the reserve" or not requires consideration of a variety of factors, such as real property law, survey results, and treaty interpretations, in which the board has no expertise and over which there is no evidence that Parliament had any intention to grant the board jurisdiction.

                    The board here would be deciding upon its jurisdiction when deciding whether or not the land was "within the reserve" as opposed to acting within its jurisdiction.  A court, on an application for judicial review on this issue, could apply the standard of correctness.  Where the fundamental issue of lack of jurisdiction is raised as the only issue, the respondent should not be compelled to proceed needlessly to the appeal tribunal because it is not an adequate alternative remedy in that it cannot determine the question.  Rather, a party can either have the tribunal consider the jurisdictional matter (but this option is not  mandatory) or have recourse directly to court on the jurisdictional matter. Institutional Impartiality                    Per Lamer C.J. and L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.:  Impartiality refers to the state of mind or attitude of the decison-maker whereas independence involves both the individual independence of members of the tribunal and the institutional independence of the tribunal.  Institutional impartiality and institutional independence were both at issue here.  With respect to impartiality, if no reasonable apprehension of bias arises in the mind of a fully informed person in a substantial number of cases, allegations of an apprehension of bias cannot be brought on an institutional level but must be dealt with on a case-by-case basis.  This determination must be made having regard for a number of factors including, but not limited to, the potential for conflict between the interests of tribunal members and those of the parties who appear before them.                    No apprehension of bias arose from want of structural impartiality.  It is appropriate to have band members sit on appeal tribunals to reflect community interests.  A pecuniary interest that members of a tribunal might be alleged to have, such as an interest in increasing taxes to maximize band revenue, is far too attenuated and remote to give rise to a reasonable apprehension of bias at a structural level.  No personal and distinct interest in money raised exists on the part of tribunal members, and any potential for conflict between the interests of members of the tribunal and those of parties appearing before them was speculative at this stage.  Any allegations of bias which might arise should be dealt with on a case-by-case basis. Institutional Independence                    Per L'Heureux-Dubé, Sopinka, Gonthier and Iacobucci JJ.:  The reasons of Lamer C.J. were agreed with on all issues, except the issue of lack of institutional independence, as a ground for finding the motions judge erred in exercising his discretion to refuse judicial review.                        First, the issue of bias was not properly raised at first instance.  Second, appellate courts must defer to the exercise of the motion judge's discretion to strike out unless the conclusion is unreasonable or has been reached on the basis of irrelevant or erroneous considerations, a wrong principle or as a result of insufficient or no weight having been given to a relevant consideration.  The discretion to exercise judicial review is not being assessed de novo in this Court.  The motions judge here did not err in declining to consider the question of reasonable apprehension of lack of institutional independence at this stage.

                    The essential conditions of institutional independence in the judicial context need not be applied with the same strictness in the case of administrative tribunals.  Conditions of institutional independence must take into account their operational context.  This context includes that the band taxation scheme was part of a nascent attempt to foster Aboriginal self-government.  This contextual consideration applies to assessing whether the bias issue was premature and extends to the entire exercise of judicial discretion.  Furthermore, before concluding that the by-laws in question deprive the band taxation tribunals of institutional independence, they should be interpreted in the context of the fullest knowledge of how they are applied in practice.  The reasonable person, before making a determination of whether or not he or she would have a reasonable apprehension of bias, should have the benefit of knowing how the tribunal operates in actual practice.  Case law has tended to consider the institutional bias question after the tribunal has been appointed and/or actually rendered judgment.  It is not safe to form final conclusions as to the workings of this institution on the wording of the by-laws alone.  Knowledge of the operational reality of these missing elements may very well provide a significantly richer context for objective consideration of this institution and its relationships.                    Per Lamer C.J. and Cory J.:  Allegations of bias arising from the want of institutional independence cannot be avoided by simply deferring to the exercise of discretion by the motions judge.  A lack of sufficient institutional independence in the bands' tribunals is a relevant factor which must be taken into account in determining whether the respondents should be required to pursue their jurisdictional challenge before those tribunals.  Although the larger context of Aboriginal self-government informs the determination of whether the statutory appeal procedures established by the appellants constitute an adequate alternative remedy, this context is not relevant to the question of whether the bands' tribunals give rise to a reasonable apprehension of bias at an institutional level.  Principles of natural justice apply to the bands' tribunals and are not diluted by a federal policy of promoting Aboriginal self-government.                    Judicial independence is a long standing principle of our constitutional law which is also part of the rules of natural justice even in the absence of constitutional protection.  Natural justice requires that a party be heard by a tribunal that not only is independent but also appears to be so.  The principles for judicial independence accordingly apply in the case of an administrative tribunal functioning as an adjudicative body.  A strict application of the principles for judicial independence is, however, not always warranted.  Therefore, while administrative tribunals are subject to these principles, the test for institutional independence must be applied in light of the functions being performed by the particular tribunal at issue.  The requisite level of institutional independence (i.e., security of tenure, financial security and administrative control) depends on the nature of the tribunal, the interests at stake, and other indices of independence such as oaths of office.  Cases dealing with the security of the person require a high level of independence and warrant a stricter application of the applicable principles.  Here, the bands' administrative tribunals are adjudicating disputes about property taxes and a more flexible approach is clearly warranted.                    Even given a flexible application of the principles for judicial independence, a reasonable and right-minded person, viewing the whole procedure in the assessment by-laws, would have a reasonable apprehension that members of the appeal tribunals are not sufficiently

independent.  Three factors lead to this conclusion:  (1) the complete absence of financial security for members of the tribunals; (2) the complete absence of security of tenure (in the case of Siska), or ambiguous and therefore inadequate security of tenure (in the case of Matsqui); and (3) the fact that the tribunals, whose members are appointed by the Band Chiefs and Councils, are being asked to adjudicate a dispute pitting the interests of the bands against outside interests.  Effectively, the tribunal members must determine the interests of the very people, the bands, to whom they owe their appointments.  These three factors in combination lead to the conclusion that the tribunals lack sufficient independence in this case; any one factor in isolation would not necessarily lead to the same conclusion.                    Although the allegations of an absence of institutional impartiality were premature, the allegations surrounding institutional independence were not.  The two concepts are quite distinct.  It is mere speculation to suggest that members of the tribunals will lack impartiality, since it is impossible to know in advance of an actual hearing what these members think.  In assessing the institutional independence of the appeal tribunals, however, the inquiry focuses on an objective assessment of the legal structure of the tribunals, of which the by-laws are conclusive evidence.  The by-laws merely afford the Band Chiefs and Councils the discretion to provide institutional independence.  It is inappropriate to leave issues of tribunal independence to the discretion of those who appoint tribunals.

Ocean Port v. B.C. (Liquor Licensing Bd.) (SCC, 2001)

An initial police investigation and a subsequent investigation by a Senior Inspector with the Liquor Control and Licensing Branch led to allegations that the respondent, which operates a hotel and pub, had committed five infractions of the Liquor Control and Licensing Act and Regulations.  Following a hearing, another Senior Inspector with the Branch concluded that the allegations had been substantiated and imposed a penalty that included a two-day suspension of the respondent’s liquor licence.  The respondent appealed to the Liquor Appeal Board by way of a hearing de novo.  The findings on four of the five allegations were upheld, and the penalty was confirmed.  Pursuant to s. 30(2)(a) of the Act, the chair and members of the Board “serve at the pleasure of the Lieutenant Governor in Council”.  In practice,  members are appointed for a one-year term and serve on a part-time basis.  All members but the chair are paid on a per diem basis.  The chair establishes panels of one or three members to hear matters before the Board “as the chair considers advisable”.  The Court of Appeal concluded that members of the Board lacked the necessary guarantees of independence required of administrative decision makers imposing penalties and set aside the Board’s decision.

Held:  The appeal should be allowed and the matter remitted to the British Columbia Court of Appeal to decide the issues which it did not address. It is well established  that, absent constitutional constraints, the degree of independence required of a particular government decision maker or tribunal is determined by its enabling statute.  The statute must be construed as a whole to determine the degree of independence the legislature intended.  Confronted with silent or ambiguous legislation, courts generally infer that Parliament or the legislature intended the tribunal’s process to comport with principles of natural justice. 

However, like all principles of natural justice, the degree of independence required of tribunal members may be ousted by express statutory language or necessary implication. There is a fundamental distinction between administrative tribunals and courts.  Superior courts, by virtue of their role as courts of inherent jurisdiction, are constitutionally required to possess objective guarantees of both individual and institutional independence.  The same constitutional imperative applies to the provincial courts.  Administrative tribunals, by contrast, lack this constitutional distinction from the executive.  They are, in fact, created precisely for the purpose of implementing government policy.  Implementation of that policy may require them to make quasi-judicial decisions.  Given their primary policy-making function, however, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it.  While tribunals may sometimes attract Charter requirements of independence, as a general rule they do not.

The legislature’s intention that Board members should serve at pleasure is unequivocal.  As such, it does not permit the argument that the statute is ambiguous and hence should be read as imposing a higher degree of independence to meet the requirements of natural justice, if indeed a higher standard is required.  Where the intention of the legislature, as here, is unequivocal, there is no room to import common law doctrines of independence.  Nor is a constitutional guarantee of independence implicated here.  There is no basis upon which to extend the constitutional guarantee of judicial independence that animated the Provincial Court Judges Reference to the Liquor Appeal Board.  The Board is not a court, nor does it approach the constitutional role of the courts.  It is first and foremost a licensing body. The suspension complained of was an incident of the Board’s licensing function.  Licences are granted on condition of compliance with the Act, and can be suspended for non-compliance.  The exercise of power here at issue falls squarely within the executive power of the provincial government. This Court’s conclusion affirming the independence of the Board makes it necessary to remit the case to the Court of Appeal for consideration of the issues it expressly refrained from addressing.  Many of these issues directly relate to the validity of the decision at first instance.  Since the Court of Appeal will have the benefit of full argument on the nature of the initial hearing and the relevant provisions of the Act, the Court also remits for its consideration the issue of whether this hearing gave rise to a reasonable apprehension of bias and, if so, whether this apprehension was cured by the de novo proceedings before the Board.

Consolidated-Bathurst and I.W.A. (SCC, 1990)

The Ontario Labour Relations Board ordinarily sits in panels of three when hearing applications under the Labour Relations Act.  A three-member panel decided that the appellant had failed to bargain in good faith by not disclosing during negotiations for a collective agreement that it planned to close a plant.  In the course of deliberating over this decision, a meeting of the full Board was held to discuss a draft of the reasons.  No express statutory authority exists for this practice. 

    The record did not indicate how many of the Board's 48 members attended the meeting in question and whether labour and management were equally represented as contemplated by s. 102(9) of the Act.  The members of the panel who heard the case, however, appear to have been present.  The meeting was conducted in accordance with the Board's longstanding and usual practice.  This practice required that discussion be limited to the policy implications of a draft decision, that the facts be accepted as contained in the decision, that no vote or consensus be taken, that no minutes be kept, and that no attendance be recorded.     Appellant applied for judicial review of the Board's decision on the ground that the rules of natural justice had been breached.  The application was granted by the Divisional Court but was disallowed on appeal.  At issue here was whether the two rules of natural justice had been breached:  (a) that the adjudicator be independent and unbiased, that he who decides must hear, and (b) the audi alteram partem rule, the right to know the case to be met.     Held (Lamer and Sopinka JJ. dissenting):  The appeal should be dismissed.     Per Wilson, La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ.:  Full board meetings are a practical means of calling upon the accumulated experience of board members when making an important policy decision and obviate the possibility of different panels inadvertently deciding similar issues in a different way.  The rules of natural justice should reconcile the characteristics and exigencies of decision making by specialized tribunals with the procedural rights of the parties.     The members of a panel who actually participate in the decision must have heard both the evidence and the arguments presented by the parties.  The presence of other Board members at the full board meeting does not, however, amount to "participation" in the final decision.  Discussion with a person who has not heard the evidence does not necessarily vitiate the resulting decision because this discussion might "influence" the decision maker.     Decision makers cannot be forced or induced to adopt positions they do not agree with by means of some formalized consultation process.  A discussion does not prevent a decision maker from adjudicating in accordance with his own conscience and does not constitute an obstacle to this freedom.  The ultimate decision, whatever discussion may take place, is that of the decision maker and he or she must assume full responsibility for that decision.  Board members are not empowered by the Act to impose one member's opinion on another and procedures which may in effect compel or induce a panel member to decide against his or her own conscience or opinion cannot be used to thwart this de jure situation.     The criteria for independence are not absence of influence but rather the freedom to decide according to one's own conscience and opinions.  The full board meeting was an important element of a legitimate consultation process and not a participation in the decision of persons who had not heard the parties.  As practised by the Board, the holding of full board meetings does not impinge on the ability of panel members to decide according to their opinions so as to give rise to a reasonable apprehension of bias or lack of independence. 

    For the purpose of the application of the audi alteram partem rule, a distinction must be drawn between discussions on factual matters and discussions on legal or policy issues.     Evidence cannot always be assessed in a final manner until the appropriate legal test has been chosen by the panel and until all the members of the panel have evaluated the credibility of each witness.  It is, however, possible to discuss the policy issues arising from the body of evidence filed before the panel even though this evidence may give rise to a wide variety of factual conclusions.  These discussions can be segregated from the factual decisions which will determine the outcome of the case once a test is adopted by the panel.  The purpose of the policy discussions is not to determine which of the parties will eventually win the case but rather to outline the various legal standards which may be adopted by the Board and discuss their relative value.     Policy issues must be approached in a different manner because they have, by definition, an impact which goes beyond the resolution of the dispute between the parties.  While they are adopted in a factual context, they are an expression of principle or standards akin to law.  Since these issues involve the consideration of statutes, past decisions and perceived social needs, the impact of a policy decision by the Board is, to a certain extent, independent from the immediate interests of the parties even though it has an effect on the outcome of the complaint.     On factual matters the parties must be given a fair opportunity for correcting or contradicting any relevant statement prejudicial to their view.  The rule with respect to legal or policy arguments not raising issues of fact is, however, somewhat more lenient because the parties only have the right to state their case adequately and to answer contrary arguments.  This right does not encompass the right to repeat arguments every time the panel convenes to discuss the case.     The safeguards attached by the Board to this consultation process are sufficient to allay any fear of violations of the rules of natural justice provided the parties are advised of any new evidence or grounds and are given an opportunity to respond.  The balance so achieved between the rights of the parties and the institutional pressures the Board faces are consistent with the nature and purpose of the rules of natural justice.  In the instant case, the policy decided upon was the very subject of the hearing when the parties had full opportunity to deal with the matter and present diverging proposals which they did.     Per Lamer and Sopinka JJ. (dissenting):  The introduction of policy considerations in the decision-making process by members of the Board who were not present at the hearing and their application by members who were present but who heard no submissions from the parties in that respect violates the rationale underlying the principles of natural justice.     The final decision was formally that of the three-member panel.  The inference that the full Board meeting might have affected the outcome, however, exists and is fed by two difficulties.  Firstly, uniformity can only be achieved if some decisions of the individual panels are brought into line with others by the uniform application of policy.  Secondly, in matters affecting the integrity of the decision-making process, an appearance of injustice is sufficient to taint the decision. 

    The Board is required by statute to hold a hearing and to give the parties a full opportunity to present evidence and submissions.  It is also entitled to apply policy.  The role of policy in the decision-making function of boards must be reappraised in light of the evolution of the law relating to the classification of tribunals and the application of the rules of natural justice and fairness to those boards.  The content of the rules of natural justice is no longer dictated by classification as judicial, quasi-judicial or executive, but by reference to the circumstances of the case, the governing statutory provisions and the nature of the matters to be determined.  It is no longer appropriate to conclude that failure to disclose policy to be applied by a tribunal is not a denial of natural justice without examining all the circumstances under which the tribunal operates.     The full Board hearing deprived the appellant of a full opportunity to present evidence and submissions and accordingly constituted a denial of natural justice.  It could not be determined with certainty from the record that a policy which was developed at the full Board hearing and was not disclosed to the parties was a factor in the decision.  That this might very well have happened, however, was fatal to the Board's decision.     The goal of uniformity in the decisions of individual boards, while laudable, cannot be achieved at the expense of the rules of natural justice.  The legislature, if it so chooses, can authorize the full Board procedure.     The conclusion that no substantial wrong occurred could not be made.  Prejudice arising because of a technical breach of the rules of natural justice must be established by the party making the allegation.  The appellant, however, could hardly be expected to establish prejudice when it was not privy to the discussion before the full Board and when there is no evidence as to what in fact was discussed.  The gravity of the breach of natural justice could not be assessed in the absence of such evidence.     The full Board procedure was not saved by s. 102(13) of the Labour Relations Act which granted the Board the power to determine its own practice and procedure subject to the qualification that full opportunity be granted the parties to any proceedings to present their evidence and to make their submissions.  The appellant was not given a full opportunity to present evidence and make submissions.  The Board's practice must give way when at a variance with the rules of natural justice.

Tremblay v. Quebec (C.a.s.), (SCC 1992)

Following the refusal of the Ministère de la Main-d'{oe}uvre et de la Sécurité du revenu of Quebec to reimburse the cost of certain dressings and bandages, the respondent, who was receiving social aid, appealed this decision to the Commission des affaires sociales.  The issue was whether the dressings and bandages came within the definition of "medical equipment" within the meaning of s. 10.04 of the Regulation on Social Aid.  The appeal was heard by two commissioners and the parties argued in writing.  At the close of the hearing, a draft decision favourable to the respondent was signed by the commissioners and sent to the Commission's legal counsel for verification and consultation in accordance with established practice at the

Commission.  As the legal counsel was on vacation, it was the president of the Commission who reviewed the draft.  He then sent the two commissioners a memorandum in which he explained his contrary position.  Further to this memorandum, and at the request of a commissioner, the point of law raised was submitted to the "consensus table" machinery of the Commission.  At that meeting, a majority of members present expressed their disagreement with the position adopted in the draft decision and, shortly afterwards, one of the commissioners changed her mind and wrote an opinion unfavourable to the respondent.  The commissioners were then divided on the question and the matter was submitted to the president of the Commission pursuant to s. 10 of the Act respecting the Commission des affaires sociales.  The president decided the matter in the way he had already indicated to the commissioners in his memorandum.  The respondent's appeal was accordingly dismissed.  Alleging a breach of the rules of natural justice, the respondent challenged the Commission's decision by an action in nullity and asked that the "first draft decision" be declared the Commission's true decision.  The Superior Court concluded that the Commission's decision contravened the rules of natural justice and allowed the action, but it refused to regard the first draft of the decision as the Commission's true decision.  The Court of Appeal, in a majority decision, upheld the trial judgment.                    Held:  The principal appeal and the incidental appeal should be dismissed.                    By the very nature of the control exercised over their decisions, administrative tribunals cannot rely on deliberative secrecy to the same extent as judicial tribunals.  Secrecy remains the rule, but it may nonetheless be lifted when the litigant can present valid reasons for believing that the process followed did not comply with the rules of natural justice.  In this case, the objections by the Commission to the questions raised by the respondent concerning the process for dealing with draft decisions within the Commission should be dismissed.  These questions did not touch on matters of substance or the decision makers' thinking on such matters.  They were directed instead at the formal process established by the Commission to ensure consistency in its decisions.  The questions were concerned first with the institutional setting in which the decision was made and how it functioned, and second with its actual or apparent influence on the intellectual freedom of the decision makers.                    The consultation machinery created by the Commission is not consistent with the rules of natural justice.  While a consultation process by plenary meeting designed to promote adjudicative coherence may prove acceptable for an administrative tribunal, such a process must not however impede the ability or freedom of the members of the tribunal to decide according to their consciences and opinions, or create an appearance of bias in the minds of litigants.  Here, the evidence depicts a system in which constraint seems to have outweighed influence.  The "consensus tables" held by the Commission, although optional in theory, are in practice compulsory when the legal counsel determines that the proposed decision is contrary to previous decisions.  Moreover, the rules for holding plenary meetings of the Commission disclose a number of points which taken together could create an appearance of bias.  In particular, a plenary meeting may be requested not only by the commissioners responsible for making the decision but also by the president of the Commission.  The mere fact that the president can of his own motion refer a matter for plenary discussion may in itself be a constraint on decision makers.  Since the statute clearly provides that it is the decision makers who must decide a matter, they must retain the right to initiate consultation;  if they do not wish to consult, they

must be free not to do so.  Compulsory consultation creates an appearance of a lack of independence, if not actual constraint.  In cases of new subject-matter, compulsory consultation circumvents the will of the legislature by seeking to establish a prior consensus by persons not responsible for deciding the case.  There are other facts which support this conclusion of an apparent lack of independence.  Plenary meetings of the Commission are held so as to arrive at a consensus:  the members present vote by a show of hands, attendance is taken and minutes are kept,  These mechanisms may exert undue pressure on decision makers and are not to be recommended.  The Commission's decision, as a product of this system of internal consultation, thus seems to have been made in breach of the rules of natural justice.  Certain aspects of the system established by the Commission create an appearance of "systemic pressure".                    Even if the formal consultation machinery had been in keeping with the rules of natural justice, the fact that the president of the Commission expressed his opinion to the commissioners responsible for making the decision, inviting them to reconsider it, and then became a decision maker is hardly consistent with these rules.  The Act respecting the Commission des affaires sociales gives the president the power to settle disputes but, in view of the active part he took in the discussion, he should have delegated this task to one of his vice-presidents, pursuant to s. 10 of the Act.  The active part played by the president in this matter is likely to create a reasonable apprehension of bias in an informed observer.  Although the president had not heard the parties when he finally decided the matter, however, the procedure used in this case does not infringe the audi alteram partem rule.  The question on which the Commission had to rule was a point of law and the parties pleaded in writing.  There is nothing to indicate that new arguments of law were raised at the "consensus table" or that the president considered new points at the decision-making stage.  Since he in fact decided on the basis of the written file as prepared by the commissioners present at the hearing, there was no breach of the audi alteram partem rule.                    The first "decision" rendered by the commissioners was in their minds only a draft, a provisional opinion, and cannot be regarded as the Commission's true decision.  The intent of the decision makers must be analyzed in terms of the institutionalized consultation process that existed at the time the decision was made, even though that process now proves to have contravened the rules of natural justice.  It is therefore the second "decision" which is the Commission's true decision.

Roncarelli v. Duplessis, (SCC, 1959)

The plaintiff, the proprietor of a restaurant in Montreal and the holder of a licence to sell intoxicating liquor, sued the defendant personally for damages arising out of the cancellation of his licence by the Quebec Liquor Commission. He alleged that the licence had been arbitrarily cancelled at the instigation of the defendant who, without legal powers in the matter, had given orders to the Commission to cancel it before its expiration. This was done, it was alleged, to punish the plaintiff, a member of the Witnesses of Jehovah, because he had acted as bailsman for a large number of members of his sect charged with the violation of municipal by-laws in connection with the distribution of literature. The trial judge gave judgment for the plaintiff for part of the damages claimed. The defendant appealed and the plaintiff, seeking an increase in the

amount of damages, cross-appealed. The Court of Appeal dismissed the action and the cross-appeal.

Held (Taschereau, Cartwright and Fauteux JJ. dissenting) : The action should be maintained and the amount awarded at trial should be increased by $25,000. By wrongfully and without legal justification causing the cancellation of the permit, the defendant became liable for damages under art. 1053 of the Civil Code.

Per Kerwin C.J.: The trial judge correctly decided that the defendant ordered the Commission to cancel the licence, and no satisfactory reason has been advanced for the Court of Appeal setting aside that finding of fact.

Per Kerwin C.J. and Locke and Martland JJ.: There was ample evidence to sustain the finding of the trial judge that the cancellation of the permit was the result of an order given by the defendant to the manager of the Commission. There was, therefore, a relationship of cause and effect between the defendant's acts and the cancellation of the permit.

The defendant was not acting in the exercise of any of his official powers. There was no authority in the Attorney-General's Department Act, the Executive Power Act, or the Alcoholic Liquor Act enabling the defendant to direct the cancellation of a permit under the Alcoholic Liquor Act. The intent and purpose of that Act placed complete control over the liquor traffic in the hands of an independent commission.

Cancellation of a permit by the Commission, at the request or upon the direction of a third party, as was done in this case, was not a proper and valid exercise of the powers conferred upon the Commission by s. 35 of the Act.

The defendant was not entitled to the protection provided by art. 88 of the Code of Civil Procedure since what he did was not "done by him in the exercise of his functions". To interfere with the administration of the Commission by causing the cancellation of a liquor permit was entirely outside his legal functions. It involved the exercise of powers which in law he did not possess at all. His position was not altered by the fact that he thought it was his right and duty to act as he did.

Per Rand J.: To deny or revoke a permit because a citizen exercises an unchallangeable right totally irrelevant to the sale of liquor in a restaurant is beyond the scope of the discretion conferred upon the Commission by the Alcoholic Liquor Act. What was done here was not competent to the Commission and a fortiori to the government or the defendant. The act of the defendant, through the instrumentality of the Commission, brought about a breach of an implied public statutory duty toward the plaintiff. There was no immunity in the defendant from an action for damages. He was under no duty in relation to the plaintiff and his act was an intrusion upon the functions of a statutory body. His liability was, there-fore, engaged. There can be no question of good faith when an act is done with an improper intent and for a purpose alien to the very statute under which the act is purported to be done. There was no need for giving a notice of action as required by art. 88 of the Code of Civil Procedure, as the act done by the defendant was quite beyond the scope of any function or duty committed to him so far so that it was one done

exclusively in a private capacity however much, in fact, the influence of public office and power may have carried over into it.

Per Abbott J.: The cancellation of the licence was made solely because of the plaintiff's association with the Witnesses of Jehovah and with the object and purpose of preventing him from continuing to furnish bail for members of that sect. This cancellation was made with the express authorization and upon the order of the defendant. In purporting to authorize and instruct the Commission to cancel the licence the defendant was acting, as he was bound to know, without any legal authority whatsoever. A public officer is responsible for acts done by him without legal justification. The defendant was not entitled to avail himself of the exceptional provision of art. 88 of the Code of Civil Procedure since the act complained of was not "done by him in the exercise of his functions" but was an act done when he had gone outside his functions to perform it. Before a public officer can be held to be acting "in the exercise of his functions" within the meaning of art. 88, it must be established that at the time he performed the act complained of such public officer had reasonable ground for believing that such act was within his legal authority to perform.

Per Taschereau J., dissenting: The action cannot succeed because -the plaintiff did not give the notice required by art. 88 of the Code of Civil Procedure to the defendant who was a public officer performing his functions. The failure to fulfil this condition precedent was a total bar to the claim. That failure may be raised by exception to the form or in the written plea to the action, and the words "no judgment may be rendered" indicate that the Court may raise the point propio motu. Even if what was said by the defendant affectedthe decision taken by the Commission, the defendant remained, nevertheless, a public officer acting in the performance of his duties. He was surely a public officer, and it is clear that he did not act in his personal quality. It was as legal adviser of the Commission and also as a public officer entrusted with the task of preventing disorders and as protector of the peace in the province, that he was consulted. It was the Attorney-General, acting in the performance of his functions, who was required to give his directives to a govern-mental branch. It is a fallacious principle to hold that an error, committed by a public officer in doing an act connected with the object of his functions, strips that act of its official character and that its author must then be considered as having acted outside the scope of his duties.

Per Cartwright J., dissenting: The loss suffered by the plaintiff was damnum sine injuria. Whether the defendant directed or merely approved the cancellation of the licence, he cannot be answerable in damages since the act of the Commission in cancelling the licence was not an actionable wrong. The Courts below have found, on ample evidence, that the defendant and the manager of the Commission acted throughout in the honest belief that they were fulfilling their duty to the province. On the true construction of the Alcoholic Liquor Act, the Legislature, except in certain specified circumstances which are not present in the case at bar, has not laid down any rules as to the grounds on which the Commission may decide to cancel a permit; that decision is committed to the unfettered discretion of the Commission and its function in making the decision is administrative and not judicial or quasi-judicial. Consequently, the Commission was not bound to give the plaintiff an opportunity to be heard and the Court cannot be called upon to determine whether there existed sufficient grounds for its decision. Even if the function of the Commission

was quasi-judicial and its order should be set aside for failure to hear the plaintiff, it is doubtful whether any action for damages would lie.

Per Fauteux J., dissenting : The right to exercise the discretion with respect to the cancellation of the permit, which under the Alcoholic Liquor Act was exclusively that of the Commission, was abdicated by it in favour of the defendant when he made the decision executed by the Commission. The cancellation being illegal, imputable to the defendant, and damageable for the plaintiff, the latter was entitled to succeed on an action under art. 1053 of the Civil Code.As the notice required by art. 88 of the Code of Civil Procedure was not given, the action, however, could not be maintained. The failure to give notice, when it should be given, imports nullity and limits the very jurisdiction of the Court. In the present case, the defendant was entitled to the notice since the illegality reproached was committed "in the exercise of his functions". The meaning of this expression in art. 88 was not subject to the limitations attending expressions more or less identical appearing in art. 1054 of the Civil Code. The latter article deals with responsibility whereas art. 88 deals with procedure. Article 88 has its source in s. 8 of An Act for the Protection of Justices of the Peace, Cons. Stat. L.C., c. 101, which provided that the officer "shall be entitled" to the protection of the statute although "he has exceeded his powers or jurisdiction, and has acted clearly contrary to law". That section peremptorily estab-lishes that, in pari materia, a public officer was not considered as having ceased to act within the exercise of his functions by the sole fact that the act committed by him might constitute an abuse of power or excess of jurisdiction, or even a violation of the law. An illegality is assumed under art. 88. The jurisprudence of the province, which has been settled for many years, is to the effect that the incidence of good or bad faith has no bearing on the right to the notice.The illegality committed by the defendant did not amount to an offence known under the penal law or a delict under art. 1053 of the Civil Code. He did not use his functions to commit this illegality. He did not commit it on the occasion of his functions, but committed it because ,of his functions. His good faith has not been doubted, and on this fact there was a concurrent finding in the Courts below.

Ainsley Financial Corp. v. Ontario (Ont. C.A., 1994)

NO HEADNOTE

Thamotharem v. Canada, (FCA, 2007)

This was an appeal from a Federal Court decision granting an application for judicial review to set aside a decision of the Refugee Protection Division (RPD) dismissing the respondent’s claim for refugee protection. The respondent cross-appealed the finding that Guideline 7 of the Guidelines Issued by the Chairperson Pursuant to Section 159(1)(h) of the Immigration and Refugee Protection Act (IRPA) is not invalid because it deprives refugee claimants of the right to a fair hearing. Guideline 7 was issued in 2003 by the Chairperson of the Board pursuant to the statutory power to “issue guidelines . . . to assist members in carrying out their duties” as outlined in the Immigration and Refugee Protection Act (IRPA), paragraph 159(1)(h). The IRPA also empowers the Chairperson to make rules for each of the three Divisions of Board but these

rules must be approved by the Governor in Council and laid before Parliament. The key paragraphs of Guideline 7 provide that the standard practice in a refugee protection claim will be for the Refugee Protection Officer (RPO) to start questioning the claimant (paragraph 19), although paragraph 23 states that the RPD member hearing the claim may, in exceptional circumstances, vary the order of questioning. Guideline 7 was challenged on the grounds that (1) it deprives refugee claimants of the right to a fair hearing by denying them the opportunity to be questioned first by their own counsel; and (2) even if does not breach the duty of fairness, the Chairperson should have introduced the new standard order of questioning as a rule of procedure under the IRPA, paragraph 161(1)(a). While the Federal Court held that Guideline 7 is an unlawful fetter on the exercise of discretion by individual RPD members to determine the order of questioning at a hearing in the absence of a provision in either the IRPA or the Refugee Protection Division Rules (Rules), it rejected the respondent’s argument that it deprives refugee claimants of the right to a fair hearing and distorts the “judicial” role of the member hearing the claim. It remitted the matter for re-determination on the basis that Guideline 7 is an invalid fetter on the RPD’s discretion in the conduct of the hearing.

The respondent is a Sri Lankan Tamil who claimed refugee protection in Canada but his claim was rejected. Before the issue of Guideline 7, which was applied during the respondent’s hearing despite the respondent’s objection, neither the IRPA nor the Rules addressed the order of questioning at a hearing. The order of questioning was within the individual members’ discretion and practice thereon was not uniform across Canada.

The main issues in the present case were: (1) whether Guideline 7 prescribes a hearing procedure that is in breach of claimants’ right to procedural fairness; (2) whether Guideline 7 is unauthorized by paragraph 159(1)(h) because it is a fetter on RPD members’ exercise of discretion in the conduct of hearings; and (3) whether Guideline 7 is invalid because it is a rule of procedure and should therefore have been issued under IRPA, paragraph 161(1)(a).

Held, the appeal should be allowed, and the cross-appeal should be dismissed.

Per Evans J.A. (Décary J.A. concurring): (1) At a general level, the seriousness of the rights involved in the determination of a refugee claim, as well as the generally “judicial” character of the oral hearings held by the RPD, militate in favour of affording claimants a high degree of procedural protection. However, its details must also be tailored to fit the inquisitorial and relatively informal nature of the hearing established by Parliament as well as the RPD’s high volume case load. Although a relatively inquisitorial procedural form may reduce the degree of control over the process often exercisable by counsel in adversarial proceedings, the fair adjudication of individual rights is perfectly compatible with an inquisitorial process where the order of questioning is not as obvious as it generally is in an adversarial hearing. Furthermore, the fact that members question the claimant first when there is no RPO present does not distort the inquisitorial process established by IRPA and would not give rise to a reasonable apprehension of bias on the part of the person who is informed of the facts and has thought the matter through. Guideline 7 does not curtail counsel’s participation in the hearing since counsel is present throughout and may conduct an examination of the client to ensure that the claimant’s testimony is before the decision maker. The right to be represented by counsel does not include the right of counsel to determine the order of questioning or any other aspect of the procedure to

be followed at the hearing. Although fairness may require a departure from the standard order of questioning in some circumstances, the procedure prescribed by Guideline 7 does not, on its face, breach the Board’s duty of fairness.

(2) Effective decision making by administrative agencies often involves striking a balance between general rules and the exercise of ad hoc discretion. Through the use of “soft law” (policy statements, guidelines, manuals and handbooks), an agency can communicate prospectively its thinking on an issue to agency members and staff as well as to the public at large and to the agency’s “stakeholders” in particular. 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 or the interpretation of its enabling legislation. Although not legally binding on a decision maker, guidelines may validly influence a decision maker’s conduct. The use of guidelines and other “soft law” techniques to achieve an acceptable level of consistency in administrative decisions is particularly important for tribunals exercising discretion, whether on procedural, evidential or substantive issues, in the performance of adjudicative functions. This is especially true for large tribunals, such as the Immigration and Refugee Board (IRB).Despite the express statutory authority of the Chairperson to issue guidelines under IRPA, paragraph 159(1)(h), they do not have the same legal effects that statutory rules can have. In particular, guidelines cannot lay down a mandatory rule from which members have no meaningful degree of discretion to deviate regardless of the facts of the particular case before them. The word “guideline” itself normally suggests some operating principle or general norm, which does not necessarily determine the result of every dispute.

Since the language of Guideline 7 expressly permits members to depart from the standard order of questioning in exceptional circumstances, the Court should be slow to conclude that members will regard themselves as bound to follow the standard order in the absence of clear evidence to the contrary. The Federal Court correctly concluded that the language of Guideline 7 is more than “a recommended but optional process”. The fact that a guideline is intended to establish how discretion will normally be exercised is not enough to make it an unlawful fetter, as long as it does not preclude the possibility that the decision maker may deviate from normal practice in the light of particular facts. While RPD members must perform their adjudicative functions without improper influence from others, case law also recognizes that administrative agencies must be free to devise processes for ensuring an acceptable level of consistency and quality in their decisions. Evidence that the IRB “monitors” members’ deviations from the standard order of questioning does not create the kind of coercive environment that would make Guideline 7 an improper fetter on members’ exercise of their decision-making powers. Nor did the evidence establish that a reasonable person would think that RPD members’ independence was unduly constrained by Guideline 7.

(3) On its face, the power granted by IRPA, paragraph 159(1)(h) to the Chairperson to issue guidelines in writing “to assist members in carrying out their duties” is broad enough to include a guideline issued in respect of the exercise of members’ discretion in procedural, evidential or substantive matters. Structuring members’ discretion over the order of questioning is within the subject-matter of the guidelines contemplated by section 159. The exercise of the Chairperson’s power to issue guidelines is not made expressly subject to paragraph 161(1)(a), although a guideline issued under paragraph 159(1)(h) that is inconsistent with a formal rule of procedure

issued under paragraph 161(1)(a) will be invalid. Thus, on procedural issues, the Chairperson’s guideline-issuing and rule-making powers overlap. Provided that it does not unlawfully fetter members’ exercise of their adjudicative discretion, that the subject of a guideline could have been enacted as a rule of procedure issued under IRPA, paragraph 161(1)(a) will not normally invalidate it. It was not unreasonable for the Chairperson to choose to implement the standard order of questioning through the guideline, rather than through a formal rule of procedure.Per Sharlow (concurring): The two powers the IRPA gives the Chairperson to issue guidelines in writing to assist members in carrying out their duties (paragraph 159(1)(h)) and to make rules respecting the activities, practice and procedure of the Board, subject to the Governor in Council’s approval (paragraph 161(1)(a)) differ substantively and functionally and are not interchangeable at the will of the Chairperson. The Chairperson’s determination that the standard practice in refugee hearings, barring exceptional circumstances, should be for the RPO or the member to start questioning the refugee claimant should have been implemented by means of a rule rather than a guideline. But the standard procedure outlined in Guideline 7 is not in itself procedurally unfair and Guideline 7 does not unlawfully fetter the discretion of members. Despite Guideline 7, each member continues to have the unfettered discretion to adopt any order of procedure required by the exigencies of each claim to which the member is assigned.

CUPE v. New Brunswick (Liquor Distribution Branch) (SCC, 1979)

During the course of a lawful strike the appellant union complained that the respondent, the employer of the union members, was replacing striking employees with management personnel contrary to s. 102(3)(a) of the Public Service Labour Relations Act, R.S.N.B. 1973, c. P—25. In fact management personnel had been used to do work normally done by union personnel. The issue centred on s. 102(3) of the Act in particular subs. (a) which provides that "the employer shall not replace the striking employees or fill their position with any other employee." The Public Service Labour Relations Board recognised the ambiguities of s. 102(3) but rejected the employer's argument that the only intent of the section was to ensure that the jobs remained open for the employees after the strike was over. The Board's view was that when the Legislature granted the right to strike to public employees it intended through s. 102(3) to restrict the possibility of picket—line violence by prohibiting both strike breaking and picketing; an intention which would be frustrated if the employer's argument were accepted. The Appeal Division allowed an application by the employer for certiorari and quashed the decision of the Board, holding not only that s. 102(3) did not prevent management from performing the functions of striking employees but also considering the interpretation of s. 102(3) as a preliminary or collateral matter wrongly decided by the Board which thereby assumed a jurisdiction that it did not have.

Held: The appeal should be allowed.

The language of "preliminary or collateral matter" does not assist in the inquiry into the Board's jurisdiction. The Board acquires its jurisdiction to consider a complaint of violation of the Act under s. 19(1)(a). The Board was asked by the parties to determine the complaints in question and neither of them raised the jurisdictional question, the employer in its reply only contending that it had not in any way violated the provision (s. 102(3)(a)). One cannot therefore suggest that

the Board did not have jurisdiction in the narrow sense to enter upon an inquiry. The cases cited by the Appeal Division do not have any application to this case. The privative clause in s. 101 protects the decisions of the Board made within jurisdiction and that section is clear statutory direction that public sector labour matters be promptly and finally settled by the Board. This would dispose of the appeal were it not for the contention that the Board's interpretation was 'patently unreasonable'. Where as here the ambiguity of the section is obvious there is no one interpretation which can be said to be right. The interpretation by the Board cannot be said to be "patently unreasonable". While it may appear so at first glance if one draws too heavily on private sector experience upon a careful reading of the Act and the decisions below, the Board's interpretation is at least as reasonable as the alternative interpretations suggested in the Appeal Division.

Crevier v. Quebec (SCC, 1981)

The appellant obtained two writs of evocation from a judge of the Superior Court of Quebec from two decisions of the Professions Tribunal quashing a decision of a Discipline Committee of a professional corporation on the ground that that body had acted beyond its authority. The Superior Court held that the wide powers conferred upon the Professions Tribunal—powers encompassing review of law or fact and jurisdiction—offended s. 96 of the B.N.A. Act because the question whether a body has exceeded its jurisdiction fell within the superintending and reforming power belonging solely to a superior court whose members are appointed by the Governor General in Council. That decision was reversed by a majority of the Quebec Court of Appeal. Hence the appeal to this Court.

Held: The appeal should be allowed.

The Professions Tribunal is given no function other than that of a general tribunal of appeal in respect of all professions covered by the Professional Code and it was, therefore, impossible to see its final appellate jurisdiction as part of an institutional arrangement by way of a regulatory scheme for governance of the various professions.

Where a provincial legislature purports to insulate one of its statutory tribunals from any curial review of its adjudicative functions, and where that insulation encompassing jurisdiction, the legislation must be struck down as unconstitutional because it constitutes, in effect, a s. 96 court. It is unquestioned that privative clauses, when properly framed, may effectively oust judicial review on questions of law and on other issues not touching jurisdiction. However, given that s. 96 is in the British North America Act and that it would make a mockery of it to treat it in non-functional formal terms as a mere appointing power, there is nothing that is more the hallmark of a superior court than the vesting of power in a provincial statutory tribunal to determine the limits of its jurisdiction without appeal or other review. Consequently, a provincially-constituted statutory tribunal could not constitutionally be immunized from review of decisions on questions of jurisdiction.The present case was no different in principle from the Farrah case, [1978] 2 S.C.R. 638, when regard is had to ss. 175, 194 and 195 of the Professional Code. In both cases there was a purported exclusion of the reviewing authority of any court, whether by appeal or by evocation.

Southam v. Director of Investigations (SCC, 1997)

Vancouver’s two daily newspapers (owned by Southam Inc.) were less successful, when compared with daily newspapers in other regions of Canada, relative to the many smaller community newspapers circulating in their distribution area.  The community newspapers differed from the dailies in that they served a smaller area, were distributed free of charge, and were printed from one to three times a week.  In 1989, Southam Inc. began to acquire community and specialized newspapers in the area, and one year later had obtained a controlling interest in 13 community newspapers (including the two strongest ones, the North Shore News and the Vancouver Courier), a real estate advertising publication, three distribution services and two printing concerns.  Southam Inc. also established a local supplement to one of its dailies but eventually discontinued it. 

The respondent applied for an order requiring Southam  to divest itself of the North Shore News, the Vancouver Courier, and the Real Estate Weekly, alleging that the concentration of these properties in the hands of one publisher was likely to lessen competition substantially in the retail print advertising and real estate print advertising markets in the Lower Mainland.  The Competition Tribunal found a substantial lessening in competition in the real estate print advertising market in the North Shore.  It ordered Southam to divest itself, at its option, of either the North Shore News or the Real Estate Weekly.  It rejected Southam’s proposal that it sell the real estate section of the North Shore News. The Director of Investigation and Research appealed the Tribunal’s decision on the merits and Southam appealed the Tribunal’s decision on the remedy.  The Federal Court of Appeal allowed the first appeal and dismissed the second. This appeal raises two issues.  The first is whether the Federal Court of Appeal erred in concluding that it owed no deference to the Tribunal’s finding about the dimensions of the relevant market and in subsequently substituting for that finding one of its own.  The second is whether the Federal Court of Appeal erred in refusing to set aside the Tribunal’s remedial order. Held:  The appeal on the merits should be allowed; the appeal on the remedy should be dismissed. Merits The standard of review is a function of many factors and may fall between correctness, at the more exacting end of the spectrum, and patently unreasonable, at the more deferential end. In the absence of a privative clause, the reviewing court may review decisions taken by the tribunal even within its own jurisdiction.  Accordingly, the task for the reviewing court in a statutory appeal is more akin to appellate review than to judicial review.  Nevertheless, the reviewing court must look to several factors to determine what limits it should observe in exercising its statutorily mandated appellate function.   Among the factors to be considered are the nature of the problem before the tribunal, the applicable law properly interpreted in the light of its purpose  and the area of the tribunal’s expertise.

 

The problem before the Tribunal in this case was a problem of mixed law and fact. Questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. The distinction between questions of law and questions of mixed law and fact will sometimes be difficult to make.  In theoretical terms, the rule is that as the level of generality of the challenged proposition approaches complete particularity, the matter approaches unqualified application of law and draws away from the forging of new law, and hence draws nigh to being an unqualified question of mixed law and fact. The Tribunal did not fail to consider relevant items of evidence and so did not err in law by failing to consider them. To suggest that it erred in law by failing to accord adequate weight to certain factors is inimical to the very notion of a balancing test, which is a kind of legal rule whose application should be subtle and flexible, but not mechanical.  As a matter of law, the Tribunal should consider each factor, but the according of weight to the factors should be left, at least initially, to the Tribunal.  The Tribunal forged no new legal principle and so any error it might have made can only have been one of mixed law and fact.  This suggests that some measure of deference accordingly is owed to the Tribunal’s decision.  Appellate courts should be reluctant to venture into a re-examination of the conclusions of the Tribunal on questions of mixed law and fact. 

The absence of a privative clause counsels a less deferential posture for appellate courts than would be appropriate if a privative clause were present. The Tribunal, however, has been recognized as being especially well-suited to overseeing a complex statutory scheme whose objectives are peculiarly economic.  Because an appellate court is likely to encounter difficulties in understanding the economic and commercial ramifications of the Tribunal’s decisions and consequently to be less able to secure the fulfilment of the purpose of the Competition Act   , the purpose of the Act is better served by appellate deference to the Tribunal’s decisions. Expertise, which in this case overlaps with the purpose of the statute that the Tribunal administers, is the most important of the factors that a court must consider in settling on a standard of review.  The Tribunal’s expertise lies in economics and in commerce, and these are matters concerning which the members of the Tribunal are likely to be far more knowledgeable than the typical judge will be. The particular dispute in this case is one that falls squarely within the area of the Tribunal’s expertise. A standard more deferential than correctness but less deferential than “not patently unreasonable” is required.  Because several considerations, including particularly the expertise of the Tribunal,  counsel deference while others suggest a more exacting form of review, the proper standard of review falls somewhere between the ends of the spectrum. 

The need for a third standard of review is especially clear in cases, like this one, in which appeal from a tribunal’s decision lies by statutory right.  The presence of the statutory right of appeal

obviates the need to find a jurisdictional error.  Because  the standard of patent unreasonableness is principally a test for determining whether a tribunal has exceeded its jurisdiction, it will rarely be the appropriate standard of review in statutory appeals.  However, because tribunals typically enjoy some expertise and deal with problems of a difficult and intricate nature, a standard more deferential than correctness is needed.  This third standard should be whether the decision of the Tribunal is unreasonable.  This test is to be distinguished from the most deferential standard of review, which requires courts to consider whether a tribunal’s decision is patently unreasonable.  An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. The difference between “unreasonable” and “patently unreasonable” lies in the immediacy or obviousness of the defect.  If the defect is apparent on the face of the tribunal’s reasons, then the tribunal’s decision is patently unreasonable.  But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable. The  “clearly wrong” test is close to the standard of reasonableness simpliciter.  Many things are wrong that are not unreasonable, but when “clearly” is added to “wrong”, the meaning is brought much nearer to that of “unreasonable”.  Consequently, the clearly wrong test represents a striking out from the correctness test in the direction of deference.  But the clearly wrong test does not go so far as the standard of patent unreasonableness.  The clearly wrong test, because of its familiarity to Canadian judges, may serve as a guide in applying the standard of reasonableness simpliciter. In the final result, the standard of reasonableness simply instructs reviewing courts to accord considerable weight to the views of tribunals about matters with respect to which they have significant expertise.  While it is convenient to put the matter in terms of a standard of review, at bottom the issue is the weight that should be accorded to expert opinions. The Tribunal did not act unreasonably when it decided that Southam’s daily newspapers and community newspapers are in different product markets. 

That the Tribunal discounted  evidence of functional interchangeability between the dailies and the community newspapers was reasonable on the facts and was not without foundation or logical coherence.  It is reasonable, if only reasonable, to suppose that advertisers are sufficiently discerning about the media they employ that they are unlikely to respond to changes in the relative prices of the two kinds of newspapers by taking their business from the one to the other. The Tribunal also discounted evidence that Southam regarded the community newspapers as competitors for its dailies. This discounting is perhaps unusual given that Southam’s expert identified this competition with community newspapers as the source of the dailies’ difficulties.  The Tribunal’s findings, however, were not unreasonable and they did not need to be correct. Judicial restraint is needed if a cohesive, rational and sensible system of judicial review is to be fashioned. Remedy 

Because the Competition Act   addresses the problem of substantial lessening of competition, the appropriate remedy is to restore competition to the point at which it can no longer be said to be substantially less than it was before the merger.  The test that the Tribunal has applied in consent cases should be applied in all cases. The Tribunal’s choice of remedy is a matter of mixed law and fact and the standard of review is one of reasonableness. 

Southam’s proposed remedy of selling the real estate section of the North Shore News fails because it would not likely be effective in eliminating the substantial lessening of competition.  This decision was not unreasonable and should be allowed to stand. The remedy chosen by the Tribunal is not punitive, because the Tribunal found that it was the only effective remedy.  If the choice is between a remedy that goes farther than is strictly necessary to restore competition to an acceptable level and a remedy that does not go far enough even to reach the acceptable level, then surely the former option must be preferred.  The Tribunal did not wrongly require the appellants to demonstrate the effectiveness of their proposed remedy; the person who asserts should prove.

CUPE v. Ontario (Minister of Labour) (SCC, 2003)

Since 1965, Ontario’s hospitals, nursing homes and their employees have been required to resolve disputes over collective agreements by compulsory arbitration under the Hospital Labour Disputes Arbitration Act (“HLDAA”).  If the parties cannot agree on a mutually acceptable arbitrator, a panel of three members is struck, two designated by the parties and the third chosen by the two designates or, if they fail to agree, appointed by the Minister of Labour.  Amendments to the Labour Relations Act in 1979 facilitated the formation and use of a list of arbitrators with expertise acceptable to both management and the unions.  A similar register of arbitrators was dropped from the HLDAA in 1980 but a normal practice was for senior officials of the Ministry of Labour, under delegated authority, to identify appropriate arbitrators. Following the 1995 provincial election, a reorganization of public sector institutions, including schools and hospitals, led to Bill 136.  The Bill contained the proposed Public Sector Dispute Resolution Act, 1997 which included a Dispute Resolution Commission.  Organized labour opposed many aspects of the Bill, including the proposed commission.  When the Minister announced a return to the sector-based system of appointing arbitrators, the unions believed the selection of HLDAA chairpersons would thereafter be limited to mutually agreed candidates. 

In early 1998, the Minister appointed four retired judges to chair several arbitration boards.  They were not appointed by mutual agreement nor were they on the “agreed” list compiled under s. 49(10) of the Labour Relations Act, 1995.  The unions were not consulted.  The President of the Ontario Federation of Labour complained to the Minister that the understanding about a return to the status quo had been breached without consultation.  The unions objected that retired judges lack expertise, experience, tenure and independence from government.  They also complained the Minister had breached procedural fairness by not delegating the task of making

appointments to senior officials.  The four judges initially appointed declined to act but other retired judges accepted the appointments.  The unions sought declarations that the Minister’s actions denied natural justice and lacked institutional independence and impartiality.  The Divisional Court dismissed the application for judicial review.  The Court of Appeal allowed the unions’ appeal, concluding that the Minister had created a reasonable apprehension of bias and interfered with the independence and impartiality of the arbitrators, as well as defeating the legitimate expectation of the unions contrary to the requirements of natural justice.  The Minister was ordered not to make any further appointments “unless such appointments are made from the long-standing and established roster of experienced labour relations arbitrators” compiled under s. 49(10) of the Labour Relations Act, 1995. Held (McLachlin C.J. and Major and Bastarache JJ. dissenting):  The appeal should be dismissed for reasons that differ somewhat from those of the Court of Appeal.  The Minister is required, in the exercise of his power of appointment under s. 6(5) of the HLDAA, to be satisfied that prospective chairpersons are not only independent and impartial but possess appropriate labour relations expertise and are recognized in the labour relations community as generally acceptable to both management and labour. Per Gonthier, Iacobucci, Binnie, Arbour, LeBel and Deschamps JJ.:  The Minister, as a matter of law, was required to exercise his power of appointment in a manner consistent with the purpose and objects of the statute that conferred the power.  A fundamental purpose and object of the HLDAA was to provide an adequate substitute for strikes and lock-outs.  To achieve the statutory purpose, as the Minister himself wrote on February 2, 1998, “the parties must perceive the system as neutral and credible”.  This view was fully supported by the HLDAA’s legislative history. The Minister was not required to proceed with the selection of chairpersons by way of “mutual agreement” or from the s. 49(10) roster.  Nor were retired judges as a “class” reasonably seen as biased against labour.  Nevertheless, the Minister was required by the HLDAA, properly interpreted, to select arbitrators from candidates who were qualified not only by their impartiality, but by their expertise and general acceptance in the labour relations community.

Section 6(5) of the HLDAA contemplates the appointment of “a person who is, in the opinion of the Minister, qualified to act”.  The Minister’s discretion is constrained by the scheme and object of the Act as a whole, which is to create a “neutral and credible” substitute for the right to strike and lock-out.  Labour arbitration has traditionally rested on a consensual basis, with the arbitrator chosen by the parties or being acceptable to both parties.  Although the s. 6(5) power is expressed in broad terms, the Minister is nevertheless required, in the exercise of that power, to have regard to relevant labour relations expertise, independence, impartiality and general acceptability within the labour relations community.  These criteria are neither vague nor uncertain.  The livelihood of a significant group of professional labour arbitrators depends on their recognized ability to fulfill them.  The result is a perfectly manageable framework within which the legislature intended to give the Minister broad but not unlimited scope within which to make appointments in furtherance of the HLDAA’s object and purposes.  The Minister, under the HLDAA, is not given a broad policy function.  His narrow role is simply to substitute for the parties in naming a third arbitrator in case of their disagreement and, given the context,

background and purpose of the Act, his rejection of labour relations expertise and general acceptability as relevant factors was patently unreasonable. 

Although, as a member of Cabinet, the Minister was committed to public sector rationalization and had a perceived interest in the appointment process and the outcome of the arbitrations, the legislature specifically conferred the power of appointment on the Minister and, absent a constitutional challenge, clear and unequivocal statutory language conferring that authority prevailed over the common law rule against bias.  The Minister’s power to delegate the appointment process under  s. 9.2(1) of the HLDAA was permissive only and to take away his authority to make his own choice would amount to a judicial amendment of the legislation. The Minister satisfied any duty to consult with the unions about the change in the appointments process.  There were extensive meetings during which the Minister signalled that the process was subject to reform and that retired judges were potential candidates for appointments.  The unions made clear their opposition.  Section 6(5) of the HLDAA did not impose on the Minister a procedural requirement to consult with the parties to each arbitration nor does the evidence establish a firm practice of appointing from a list or by mutual agreement.  A general, ambiguous promise to continue an existing system subject to reform does not suffice under the doctrine of legitimate expectation to bind the Minister’s exercise of his or her discretion. The Court of Appeal had concluded that the Minister’s approach tainted both the independence and impartiality of the HLDAA arbitration boards to which the retired judges had been appointed.  This conclusion was not justified.  The HLDAA commands the use of ad hoc arbitration boards.  Such boards are not characterized by financial security or security of tenure beyond the life of the arbitration itself.  The independence of arbitrators is guaranteed by training, experience and mutual acceptability.  Since s. 6(5) requires the appointment of individuals qualified by training, experience and mutual acceptability, the proper exercise of the appointment power would lead to a tribunal which would satisfy reasonable concerns about institutional independence. 

Impartiality raises different considerations.  The Court of Appeal did not suggest that the retired judges were in fact biased or partial but concluded that they might reasonably be seen to be “inimical to the interests of labour, at least in the eyes of the appellants”.  The test, however, is not directed to the subjective perspective of one of the parties but to the reasonable, detached and informed observer.  Retired judges as a class have no greater interest than other citizens in the outcome of the arbitrations and there are no substantial grounds to think they would do the bidding of the Minister or favour employers so as to improve the prospect of future appointments.  A fully informed, reasonable person would not stigmatize retired judges, as a class, with an anti-labour bias.  Allegations of individual bias must be dealt with on a case-by-case basis. The appropriate standard of review is patent unreasonableness.  The pragmatic and functional approach applies to the judicial review of the exercise of a ministerial discretion and factors such as the existence of a privative clause, the Minister’s expertise in labour relations, the nature of

the question before the Minister and the wording of s. 6(5) all call for considerable deference.  A patently unreasonable appointment is one whose defect is immediate, obvious and so flawed in terms of implementing the legislative intent that no amount of curial deference can justify letting it stand. 

The appointments were not patently unreasonable simply because the Minister did not restrict himself to the s. 49(10) list of arbitrators.  Some arbitrators on the list were unacceptable to the unions and some acceptable arbitrators were not on the list, confirming the reasonableness of the Minister’s view that candidates could qualify without being on the list.  However, in assessing whether the appointments were patently unreasonable, the courts are entitled to have regard to the importance of the factors the Minister altogether excluded from his consideration.  In this case, the Minister expressly excluded relevant factors that went to the heart of the legislative scheme.  The matters before the boards required the familiarity and expertise of a labour arbitrator.  Expertise and neutrality foster general acceptability.  Appointment of an inexpert and inexperienced chairperson who is not seen as generally acceptable in the labour relations community is a defect in approach that is both immediate and obvious.  Having regard to the legislative intent manifested in the HLDAA, the Minister’s approach to the s. 6(5) appointments was patently unreasonable.  The qualifications of specific appointees will have to be assessed on a case-by-case basis if challenged. The appeal is thus dismissed on the limited ground that appointments that excluded from consideration labour relations expertise and general acceptability in the labour relations community were patently unreasonable. 

Per McLachlin C.J. and Major and Bastarache JJ. (dissenting):  The appropriate standard of review for the exercise of the Minister’s appointment power under s. 6(5) of the HLDAA is patent unreasonableness.  The pragmatic and functional approach focusses on the particular provision being invoked.  The Minister exercised power under a single statute, his enabling legislation, and, absent a constitutional challenge, the patent unreasonableness standard need not make room for a review of statutory interpretation of enabling legislation on a correctness basis.  There is no basis for dividing the Minister’s decision into component questions subject to different standards of review, nor should the Minister’s power be viewed as due less deference because it is circumscribed by legislation.  Not every administrative action involves a distinct and identifiable exercise of statutory interpretation. Where, as here, the factors indicate that the question raised by the provision is one intended by the legislators to be left to the exclusive decision of the administrative decision maker, it simply is not one for the courts to make.  The presence of a privative clause is compelling evidence that deference is due.  The Minister knows more about labour relations than the courts and will be taken to have expertise.  Deference is owed to expert decision makers designated by the legislature.  The fact-based nature of the question before the Minister also points to deference and empowering the Minister, rather than an apolitical actor, suggests a legislative intent of political accountability. 

The Minister did not make appointments that were patently unreasonable. A contextual approach to statutory interpretation of the enabling legislation is necessary for determining the criteria relevant to exercise of the discretion.  In some cases, the criteria are spelled out in the legislation, regulations or guidelines or found in the specific purposes of the relevant Act.  In others, the relevant factors may be unwritten and derived from the purpose and context of the statute.  In this case, there are no relevant regulations, guidelines, or other instruments, and the statute does not say much.  The Act stipulates that appointees must be qualified in the opinion of the Minister, expressly contemplating the importance of the Minister’s opinion.  Labour relations expertise, independence and impartiality, reflected in broad acceptability, are not necessarily dominant or obvious factors and should not be imposed as specific restrictions on the Minister’s discretion.  The Minister developed an opinion and determined that judging experience was a relevant qualification.  The Act called for the Minister to reach his own opinion, not to consider a specific determining factor. Given how much work it takes to identify labour relations experience and broad acceptability as factors and to imply them into s. 6(5), weighing them less heavily than another unwritten qualification, namely judicial experience, does not vitiate the appointments as patently unreasonable.  It takes significant searching or testing to find the alleged defect or even the factors said to constrain the Minister.  It is therefore difficult to characterize the appointments as immediately or obviously defective, not in accordance with reason, clearly irrational, or so flawed that no amount of curial deference could justify letting them stand based on a failure to consider these factors.  Recognition of the seriousness of quashing a decision as patently unreasonable is crucial to maintaining the discipline of judicial restraint and deference, and our intervention is not warranted in these circumstances. Concerns about institutional independence and institutional impartiality do not render the Minister’s appointments patently unreasonable.  The Act requires that the tribunals be ad hoc and retired judges as a class cannot reasonably be seen as so partial that appointing them took the Minister outside the bounds of his statutory discretion.  The possibility of a successful challenge to a particular board is not foreclosed but the constraints on the Minister’s discretion do not permit a general inquiry into the independence and impartiality of the boards on the basis of the appointment process in the absence of a direct challenge to the boards actually appointed.

Pushpanathan v. Canada (Minister of Employment and Immigration) (SCC, 1999)

In 1985, the appellant claimed refugee status under the UN Convention Relating to the Status of Refugees (“Convention”), as implemented by the Immigration Act, but his claim was never adjudicated as he was granted permanent residence status in Canada under an administrative program.  The appellant was later arrested in Canada and charged with conspiracy to traffic in a narcotic.   At the time of his arrest, he was a member of a group in possession of heroin with a street value of some $10 million.  He pleaded guilty and was sentenced to eight years in prison.  In 1991, the appellant, then on parole, renewed his claim for Convention refugee status.  Employment and Immigration Canada subsequently issued a conditional deportation order against him under ss. 27(1)(d) and 32.1(2) of the Act.  Since the deportation pursuant to those sections is conditional upon a determination that the claimant is not a Convention refugee, the appellant’s claim was referred to the Convention Refugee Determination Division of the Immigration and Refugee Board.  The Board decided that the appellant was not a refugee by

virtue of the exclusion clause in Art. 1F(c) of the Convention, which provides that the provisions of the Convention do not apply to a person who “has been guilty of acts contrary to the purposes and principles of the United Nations”.  The Federal Court, Trial Division dismissed the appellant’s application for judicial review and certified the following as a serious question of general importance for consideration:  Is it an error of law for the Refugee Division to interpret Art. 1F(c) of the Convention to exclude from refugee status an individual guilty of a serious narcotics offence committed in Canada?  The Federal Court of Appeal answered “no” and upheld the judgment of the Trial Division.  Held (Cory and Major JJ. dissenting):  The appeal should be allowed. Per L’Heureux-Dubé, Gonthier, McLachlin and Bastarache JJ.:  A pragmatic and functional analysis of the Immigration Act leads to the conclusion that, in this case, the correctness standard should be applied to the Board’s decision.  The use of the words “a serious question of general importance” in s. 83(1) of the Act is the key to the legislative intention as to the standard of review.  The general importance of the question -- that is, its applicability to numerous future cases -- warrants the review by a court of justice.  Moreover, the purpose of Art. 1F(c) of the Convention is to protect human rights and the Board appears to enjoy no relative expertise in that matter.  The Board’s expertise is in accurately evaluating whether the criteria for refugee status have been met and, in particular, in assessing the nature of the risk of persecution faced by the applicant if returned to his country of origin.  The relationship between the Board’s expertise and Art. 1F(c) is thus remote.  Nor is there any indication that the Board’s experience with previous factual determinations of risk of persecution gives it any added insight into the meaning or desirable future development of that provision.  The legal principle here is easily separable from the undisputed facts of the case and would undoubtedly have a wide precedential value.  The factual expertise enjoyed by the Board does not aid it in the interpretation of this general legal principle.  Furthermore, the Board itself is not responsible for policy evolution.  Finally, the absence of a strong privative clause is another factor militating against deference. 

Since the purpose of the Immigration Act incorporating Art. 1F(c) is to implement the underlying Convention, an interpretation consistent with Canada’s obligations under the Convention must be adopted.  The wording of the Convention and the rules of treaty interpretation are therefore applicable to determine the meaning of Art. 1F(c) in domestic law.  The general words “purposes and principles of the United Nations” in Art. 1F(c) are not so unambiguous as to foreclose examination of other indications of the proper scope of the provision.  The purpose and context of the Convention as a whole, as well as the purpose of the individual provision in question as suggested by the travaux préparatoires, provide helpful interpretative guidelines.  

The Convention has a human rights character.  While Art. 1 of the Convention defines who is a refugee, the general purpose of Art. 1F is to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status.  The purpose of Art. 33 of the Convention, by contrast, is to allow for the refoulement of a bona fide refugee to his native country where he poses a danger to the security of the country of refuge, or to the safety of the community.  Although all of the acts described in Art. 1F could presumably fall within the grounds for

refoulement described in Art. 33, the two are distinct.  Article 1F(c) is not limited to acts performed outside the country of refuge.  The relevant criterion under Art. 1F(c) is the time at which refugee status is obtained and any act performed before a person has obtained that status must be considered relevant pursuant to Art. 1F(c).  The rationale of Art. 1F of the Convention is that those who are responsible for the persecution which creates refugees should not enjoy the benefits of a convention designed to protect those refugees.  In the light of the general purposes of the Convention and the indications in the travaux préparatoires as to the relative ambit of Arts. 1F(a) and 1F(c), the purpose of Art. 1F(c) is to exclude those individuals responsible for serious, sustained or systemic violations of fundamental human rights which amount to persecution in a non-war setting.  Article 1F(c) may be applicable to non-state actors.  Although it may be more difficult for a non-state actor to perpetrate human rights violations on a scale amounting to persecution without the state thereby implicitly adopting those acts, the possibility should not be excluded a priori. Article 1F(c) will thus be applicable where there is consensus in international law that particular acts constitute sufficiently serious and sustained violations of fundamental human rights as to amount to persecution, or are explicitly recognized as contrary to the UN purposes and principles.  First, where a widely accepted international agreement or UN resolution explicitly declares that the commission of certain acts is contrary to the UN purposes and principles, then there is a strong indication that those acts will fall within Art. 1F(c).  Where such declarations or resolutions represent a reasonable consensus of the international community, then that designation should be considered determinative.  A second category of acts which fall within the scope of Art. 1F(c) are those which a court is able, for itself, to characterize as serious, sustained and systemic violations of fundamental human rights constituting persecution.  Where the rule which has been violated is very near the core of the most valued principles of human rights and is recognized as immediately subject to international condemnation and punishment, then even an isolated violation could lead to an exclusion under Art. 1F(c).  The status of a violated rule as a universal jurisdiction offence would be a compelling indication that even an isolated violation constitutes persecution.  A serious and sustained violation of human rights amounting to persecution may also arise from a particularly egregious factual situation, including the extent of the complicity of the claimant.  

Conspiring to traffic in a narcotic is not a violation of Art. 1F(c).  Even though international trafficking in drugs is an extremely serious problem that the UN has taken extraordinary measures to eradicate, in the absence of clear indications that the international community recognizes drug trafficking as a sufficiently serious and sustained violation of fundamental human rights as to amount to persecution, either through a specific designation as an act contrary to the UN purposes and principles, or through international instruments which otherwise indicate that trafficking is a serious violation of fundamental human rights, individuals should not be deprived of the essential protections contained in the Convention for having committed those acts.  Article 33 of the Convention and its counterparts in the Immigration Act, ss. 53 and 19, are designed to deal with the expulsion of individuals who present a threat to Canadian society, and the grounds for such a determination are wider and more clearly articulated.  The Minister, therefore, is not precluded from taking appropriate measures to ensure the safety of Canadians.  Lastly, the presence of Art. 1F(b), which excludes from the protection of the Convention a

person who has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee, suggests that even a serious non-political crime such as drug trafficking should not be included in Art. 1F(c). Per Cory and Major JJ. (dissenting):  What constitutes an act “contrary to the purposes and principles of the United Nations” for the purposes of the Convention is a question of law.  While the Immigration and Refugee Board must be accorded some deference in its findings of fact, that deference should not be extended to a finding on a question of law.  The Board cannot be said to have any particular expertise in legal matters.  Therefore the issue is whether the Board’s decision on the question of law was correct. 

The category of acts contrary to the UN purposes and principles should not be restricted to those expressly declared to be so.  A domestic tribunal is entitled, upon considering the relevant material, to find that the phrase includes other types of acts.  While not every UN initiative is so central to its purposes and principles that any act which violates or undermines those initiatives is contrary to the UN purposes and principles, some problems have been recognized by the international community as being so serious and of such a nature that they pose a threat to the entire international community and the principles of its social order.  Conduct which directly or significantly contributes to these problems or which violates agreed principles or obligations with respect to them should, in appropriate cases, be regarded as contrary to the UN purposes and principles. While serious or systematic violation of human rights would be conduct that is contrary to the UN purposes and principles, it is not the only conduct that should be considered in interpreting Art. 1F(c) of the Convention.  The determination of what constitutes an act contrary to the UN purposes and principles need not be limited to the consideration of one purpose notwithstanding the fact that it is important and that the Convention is a human rights instrument.  Although the purpose of the instrument will be taken into account in interpreting its provisions, it must not restrict the content of the exclusion so as to limit it to conduct relating directly to human rights.  All of the UN purposes and principles should be considered.  Furthermore, some types of conduct may indirectly but significantly contribute to the violation of human rights. 

The Convention should be interpreted in a manner consistent with the contemporary context.  As international law develops, the content of a phrase such as “acts contrary to the purposes and principles of the United Nations” must be capable of development.  Courts should recognize that the guidance provided by interpretive aids such as the travaux préparatoires and subsequent practice must be considered in the light of the current state of the law and international understandings.  The travaux préparatoires should be taken into account, yet this does not mean that courts are restricted to a precise interpretation of that material.  Rather, consideration should be given to the underlying principles and concerns that they express with the aim of giving them a contemporary meaning.  Similarly, with regard to state practice, some consistency should be maintained with the line of interpretation revealed by the practice of state parties, but that interpretation must be adjusted to take into account evolving ideas and principles in international law.

 Although traditionally it was thought that the UN purposes and principles, like international law generally, are addressed only to states, and can be violated only by state actors, it is now generally accepted that an individual acting in his private capacity can commit acts which constitute violations of international law.  

Significant trafficking in a dangerous illicit drug can constitute an act which is contrary to the UN purposes and principles and would thus form the basis of exclusion from refugee status pursuant to Art. 1F(c).  The rationale for including illicit drug trafficking in Art. 1F(c) is the reality that this activity is recognized, both legally and practically, as an activity that not only is a domestic criminal offence, but occasions very serious and significant harm in the international community.  The categorization of an act as an international crime or crime of international concern is not determinative of the question.  The additional factor which distinguishes illicit drug trafficking from some other “crimes of international concern” or UN initiatives is the nature and gravity of the harm to people in countries around the world and to the international community as a whole that results from this activity.  The harm caused by the illicit traffic in drugs is of the utmost severity.  This illicit traffic takes a dreadful toll on the lives of individuals, families and communities.  It destabilizes and retards the development of whole nations and regions.  Drug trafficking now also threatens peace and security at a national and international level.  It affects the sovereignty of some states, the right of self-determination and democratic government, economic, social and political stability and the enjoyment of human rights.  Many of the UN purposes and principles are undermined, directly or indirectly, by the international trade in illicit drugs.  It is on this basis that at least some individuals who participate in and contribute to this activity must be considered to be committing acts contrary to the UN purposes and principles.  The statements on this subject by the international community, including the relevant conventions and General Assembly resolutions, reflect an acute awareness of the nature and gravity of the problem, and a severe condemnation of the activities that give rise to the problem.  While the UN has never specifically declared that drug trafficking is contrary to its purposes and principles, it has clearly and frequently recognized and denounced the evils of this activity.  There are also many statements reflecting an awareness that trafficking threatens essential aspects of the UN purposes and principles.  The statements of the UN and of the international community lead inexorably to the conclusion that those engaged in trafficking in illicit drugs are responsible, directly or indirectly, for harms that are so widespread and so severe that they undermine the very purposes and principles upon which the UN is based.  It follows that their actions must be considered “acts contrary to the purposes and principles of the United Nations” and thus come within the exclusion set out in Art. 1F(c).  However, not all acts within the broad category of illicit drug trafficking constitute acts contrary to the UN purposes and principles.  Distinctions must be drawn based on the type and scale of activities.  It is those actually engaged in trafficking who reap most of the profits, cause the greatest harm and therefore bear the greatest responsibility for perpetuating the illicit trade.  Those who are merely consumers are often victims themselves and do not bear the same responsibility. 

Here, the appellant was an important participant in a major drug operation with an organized group trafficking in heroin.  He trafficked on a large scale in the most debilitating of drugs.  While not every domestic narcotics offence will provide a basis for exclusion under Art. 1F(c), in light of the seriousness of the appellant’s crime he should, as a result of his actions, be excluded.

Khosa v. Canada (SCC, 2009)

K, a citizen of India, immigrated to Canada with his family in 1996, at the age of 14.  In 2002, he was found guilty of criminal negligence causing death and received a conditional sentence of two years less a day.  A valid removal order was issued to return him to India. K appealed the order, but the majority of the Immigration Appeal Division (“IAD”) of the Immigration and Refugee Board, after considering the Ribic factors and the evidence, denied “special relief” on humanitarian and compassionate grounds pursuant to s.   67(1)   (c) of the Immigration and Refugee Protection Act   (“IRPA   ”).  A majority of the Federal Court of Appeal applied a “reasonableness” simpliciter standard and set aside the IAD decision.  It found that the majority of the IAD had some kind of fixation with the fact that the offence was related to street-racing.  On the issue of the “possibility of rehabilitation”, the majority of the IAD merely acknowledged the findings of the criminal courts in that regard, which were favourable to K, and did not explain why it came to the contrary conclusion.  In the end, that court concluded that the majority of the IAD had acted unreasonably in denying relief. Held (Fish J. dissenting):  The appeal should be allowed. 

Per McLachlin C.J. and Binnie, LeBel, Abella and Charron JJ.:  This Court’s decision in Dunsmuir, which was released after the decisions of the lower courts in this case, recognized that, with or without a privative clause, a measure of deference has come to be accepted as appropriate where a particular decision has been allocated to administrative decision-makers in matters that relate to their special role, function and expertise.  A measure of deference is appropriate whether or not the court has been given the advantage of a statutory direction, explicit or by necessary implication.  These general principles of judicial review are not ousted by s.   18.1   of the Federal Courts Act   which deals essentially with grounds of review of administrative action, not standards of review. [25] A legislature has the power to specify a standard of review if it manifests a clear intention to do so.  However, where the legislative language permits, the court (a) will not interpret grounds of review as standards of review, (b) will apply Dunsmuir principles to determine the appropriate approach to judicial review in a particular situation, and (c) will presume the existence of a discretion to grant or withhold relief based in part on Dunsmuir including a restrained approach to judicial intervention in administrative matters.  [51] Resort to the flexibility of the general principle of judicial review is all the more essential in the case of a provision like s.   18.1   of the Federal Courts Act   which is not limited to particular

issues before a particular adjudicative tribunal but covers the full galaxy of federal decision-makers who operate in different decision-making environments under different statutes with distinct grants of decision-making powers.  [28] [33] 

The language of s. 18.1 generally sets out threshold grounds which permit but do not require the court to grant relief.  Despite a difference in the meaning of the English and French versions in the relevant language of s. 18.1(4), the provision should be interpreted to permit a court to exercise its discretion in matters of remedy depending on the court’s appreciation of the respective roles of the courts and the administration as well as the circumstances of each case.  The discretion must be exercised judicially, but the appropriate judicial basis for its exercise includes the general principles dealt with in Dunsmuir.  [36] Dunsmuir establishes that there are now only two standards of review:  correctness and reasonableness.  No authority was cited suggesting that a “correctness” standard of review is appropriate for IAD decisions under s.   67(1)   (c) of the IRPA   , and the relevant factors in a standard of review inquiry point to a reasonableness standard.  These factors include:  (1) the presence of a privative clause; (2) the purpose of the IAD as determined by its enabling legislation — the IAD determines a wide range of appeals under the IRPA   and its decisions are reviewable only if the Federal Court grants leave to commence judicial review; (3) the nature of the question at issue before the IAD — Parliament has provided in s.   67(1)   (c) a power to grant exceptional relief and this provision calls for a fact-dependent and policy-driven assessment by the IAD itself; and (4) the expertise of the IAD dealing with immigration policy.  These factors must be considered as a whole, bearing in mind that not all factors will necessarily be relevant for every single case.  [53-57] 

Where, as here, the reasonableness standard applies, it requires deference.  Reviewing courts ought not to reweigh the evidence or substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within a range of reasonable outcomes.  In this case, the question whether K had established “sufficient humanitarian and compassionate considerations” to warrant relief from his removal order was a decision which Parliament confided to the IAD, not to the courts.  [4] [59] The IAD reasons, both the majority and dissent, disclose with clarity the considerations in support of both points of view, and the reasons for the disagreement as to outcome.  At the factual level, the IAD divided in large part over differing interpretations of K’s expression of remorse.  This is the sort of factual dispute which should be resolved by the IAD not the courts.  The majority considered each of the Ribic factors, reviewed the evidence and decided that, in the circumstances of this case, discretionary relief should be refused.  While the findings of the criminal courts on the seriousness of the offence and possibility of rehabilitation (the first and second of the Ribic factors), were properly noted, the IAD had a mandate different from that of the criminal courts.  The issue before it was not the potential for rehabilitation for purposes of sentencing, but rather whether the prospects for rehabilitation were such that, alone or in combination with other relevant factors, they warranted special discretionary relief from a valid

removal order.  The IAD was required to reach its own conclusions based on its own appreciation of the evidence and it did so.  [64-66]  In light of the deference properly owed to the IAD under s.   67(1)   (c) of the IRPA   , there was no proper basis for the Federal Court of Appeal to interfere with the IAD decision to refuse special relief in this case.  It cannot be said that this decision fell outside the range of reasonable outcomes.  [60] [67]  

Per Rothstein J.:  Where a legislature has expressly or impliedly provided for standards of review, courts must follow that legislative intent, subject to any constitutional challenge.  With respect to s.   18.1(4)   of the Federal Courts Act   , the language of para. (d) makes clear that findings of fact are to be reviewed on a highly deferential standard.  Courts are only to interfere with a decision based on erroneous findings of fact where the federal board, commission or other tribunal’s factual finding was “made in a perverse or capricious manner or without regard for the material before it”.  By contrast with para. (d), there is no suggestion that courts should defer in reviewing a question that raises any of the other criteria in s.   18.1(4)   .  Where Parliament intended a deferential standard of review in s.   18.1(4)   , it used clear and unambiguous language, as it has in para. (d) regarding facts.  The necessary implication is that where Parliament did not provide for deferential review, it intended the reviewing court to apply a correctness standard as it does in the regular appellate context.  [70] [72] [113] [117] While recourse to the common law is appropriate where Parliament has employed common law terms or principles without sufficiently defining them, it is not appropriate where the legislative scheme or provisions expressly or implicitly ousts the relevant common law analysis as is the case with s.   18.1(4)   of the Federal Courts Act   .  Courts must give effect to the legislature’s words and cannot superimpose on them a duplicative common law analysis.  The Dunsmuir standard of review should be confined to cases in which there is a strong privative clause.  Excepting such cases, it does not apply to s.   18.1(4)   .  The application of Dunsmuir outside the strong privative clause context marks a departure from the conceptual and jurisprudential origins of the standard of review analysis.  [70] [74] [106] [136] 

The deference approach emerged as a means of reconciling Parliament’s intent to immunize certain administrative decisions from review with the supervisory role of courts in a rule of law system.  The creation of expert administrative decision-makers evidenced a legislative intent to displace or bypass the courts as primary adjudicators in a number of areas, but it was only with the enactment of privative clauses, which marked the area of tribunal expertise that the legislature was satisfied warranted deference, that a legislature indicated an intent to oust, or at the very least restrict, the court’s review role.  Whereas tribunal expertise was a compelling rationale for imposing a privative clause, it was not a free-standing basis for deference.  The approach of judicially imputing expertise which followed, even on questions of law, was a departure from earlier jurisprudence that relied on privative clauses as the manifest signal of the legislature’s recognition of relative tribunal expertise.  [79] [82-84] [87] 

There is no dispute that reviewing courts, whether in the appellate or judicial review contexts, should show deference to lower courts and administrative decision-makers on questions of fact and on questions involving mixed fact and law, where a legal issue cannot be extricated from a factual or policy finding.  However, where a legal issue can be extricated from a factual or policy inquiry, it is inappropriate to presume deference where Parliament has not indicated this via a privative clause.  It is not for the court to impute tribunal expertise on legal questions, absent a privative clause and, in doing so, assume the role of the legislature to determine when deference is or is not owed.  Recognizing expertise as a free-standing basis for deference on questions that reviewing courts are normally considered to be expert on departs from the search for legislative intent that governs this area.  [89-93] 

Concerns regarding the rigidity of the legislated standards are misplaced.  A review of the Federal Courts Act   makes clear that the focus of the analysis should be on the nature of the question under review and not on the type of administrative decision-maker.  Even given this legislative focus on the nature of the question under review, not all administrative decision-makers will be subject to the same standards of review.  Where a decision-maker’s enabling statute purports to preclude judicial review on some or all questions through a privative clause, deference will apply and a Dunsmuir standard of review analysis will be conducted.  [109-110]  Section 18.1(4) confers on the Federal Courts the discretion to grant or deny relief in judicial review.  The remedial discretion in s. 18.1(4) goes to the question of withholding relief, not the review itself.  The traditional common law discretion to refuse relief on judicial review concerns the parties’ conduct, any undue delay and the existence of alternative remedies which is wholly distinct from the common law of standard of review analysis.  Reliance upon this discretion contained in s. 18.1(4) to support the view that it opens the door to the Dunsmuir standard of review analysis is inappropriate.  [131] [135-136] The IAD’s decision not to grant relief in this case should be upheld.  The application of the Ribic factors to the case before it and its exercise of discretion is fact-based.  The IAD’s factual findings were not perverse or capricious and were not made without regard to the evidence.  [137] Per Deschamps J.:  There is agreement with Rothstein J. that since s.   18.1(4)   of the Federal Courts Act   sets legislated standards of review, those standards oust the common law. [138]

Per Fish J. (dissenting):  The standard of review applicable is “reasonableness”, and the IAD’s decision does not survive judicial scrutiny under that standard.  The IAD’s task was to look to “all the circumstances of the case” in order to determine whether “sufficient humanitarian and compassionate considerations” existed to warrant relief from a removal order.  The IAD placed the greatest weight on three factors:  K’s remorse, rehabilitation, and likelihood of reoffence.  Despite abundant evidence that K was extremely unlikely to reoffend and had taken responsibility for his actions, the IAD focussed on a single fact — K’s denial that he was “street racing” — and based its refusal to grant relief largely on that fact alone.  While K’s denial may well evidence some “lack of insight”, it cannot be said to contradict — still less to outweigh, on a balance of probabilities — all of the evidence in his favour on the issues of remorse,

rehabilitation and likelihood of reoffence.  The IAD’s cursory treatment of the sentencing judge’s favourable findings on remorse and the risk of recidivism are particularly troubling.  While a criminal court’s findings are not necessarily binding upon an administrative tribunal with a distinct statutory purpose and a different evidentiary record, it was incumbent upon the IAD to consider those findings and to explain the basis of its disagreement with the sentencing judge’s decision.  K’s denial of street racing is, at best, of little probative significance in determining his remorse, rehabilitation and likelihood of reoffence.  The IAD’s conclusion that there was “insufficient evidence” upon which a determination could be made that K does not represent a risk to the public is not only incorrect, but unreasonable.  Decisions of the IAD are entitled to deference, but deference ends where unreasonableness begins.  [139-140] [145] [147] [149-151] [153-154] [160]

Alberta (Information and Privacy Commissioner) v. A.T.A.,

   The Information and Privacy Commissioner received complaints that the Alberta Teachers’ Association (“ATA”) disclosed private information in contravention of the Alberta Personal Information Protection Act (“PIPA”).  At the time, s. 50(5) of PIPA provided that an inquiry must be completed within 90 days of the complaint being received unless the Commissioner notified the parties that he was extending the time period and he provided an anticipated date for completing the inquiry.  The Commissioner took 22 months from the initial complaint before extending the estimated date on which the inquiry would be concluded.  Seven months later, an adjudicator delegated by the Commissioner issued an order, finding that the ATA had contravened the Act.  The ATA applied for judicial review of the adjudicator’s order.  In argument, it claimed for the first time that the Commissioner had lost jurisdiction due to his failure to extend the period for completion of the inquiry within 90 days of the complaint being received.  The chambers judge quashed the adjudicator’s decision on that basis.  A majority of the Court of Appeal upheld the chambers judge’s decision.

                    Held:  The appeal should be allowed.

                    Per McLachlin C.J. and LeBel, Fish, Abella, Charron and Rothstein JJ.:  Although the timelines issue was not raised before the Commissioner or the adjudicator, the adjudicator implicitly decided that providing an extension after 90 days did not automatically terminate the inquiry.  The adjudicator’s decision was subject to judicial review on a reasonableness standard and her decision was reasonable.  The adjudicator’s order should be reinstated and the matter should be remitted to the chambers judge to consider issues not dealt with and resolved in the judicial review.

                    A court has discretion not to undertake judicial review of an issue and generally will not review an issue that could have been, but was not, raised before the tribunal.  However, in this case, the rationales for the general rule have limited application.  The Commissioner has consistently expressed his views in other cases, so we have the benefit of his expertise.  No evidence was required to consider the timelines issue and no prejudice was alleged.

                    In the present appeal, the letter notifying the parties of the extension was sent after the expiration of 90 days.  An inquiry was conducted and the adjudicator ultimately rendered an order against the ATA.  The issue raised by the ATA on judicial review could only be decided in one of two ways — either the consequence of an extension was that the inquiry was terminated or not.  Both the Commissioner and the adjudicator implicitly decided that providing an extension after 90 days did not result in the inquiry being automatically terminated.

                    In this case, a reasonableness standard applied on judicial review.  The Commissioner was interpreting his own statute and the question was within his specialized expertise.  Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, unless the question falls into a category of question to which the correctness standard continues to apply.  The timelines question does not fall into such a category:  it is not a constitutional question, a question regarding the jurisdictional lines between competing specialized tribunals, a question of central importance to the legal system as a whole, nor a true question of jurisdiction or vires.  Experience has shown that the category of true questions of jurisdiction is narrow and it may be that the time has come to reconsider whether this category exists and is necessary to identify the appropriate standard of review.  Uncertainty has plagued standard of review analysis for many years.  The “true questions of jurisdiction” category has caused confusion to counsel and judges alike and without a clear definition or content to the category, courts will continue to be in doubt on this question.  For now, it is sufficient to say that, unless the situation is exceptional, the interpretation by a tribunal of its home statute or statutes closely connected to its function should be presumed to be a question of statutory interpretation subject to deference on judicial review.  As long as the “true question of jurisdiction” category remains, a party seeking to invoke it should be required to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the standard of reasonableness.

                    The deference due to a tribunal does not disappear because its decision was implicit.  Parties cannot gut the deference owed to a tribunal by failing to raise the issue before the tribunal and thereby mislead the tribunal on the necessity of providing reasons.  When the decision under review concerns an issue that was not raised before the decision maker, the reviewing court can consider reasons which could have been offered in support of the decision.  When a reasonable basis for an implied decision is apparent, a reviewing court should uphold the decision as reasonable.  In some cases, it may be that the reviewing court cannot adequately show deference without first providing the decision maker the opportunity to give its own reasons for the decision.  It will generally be inappropriate to find that there is no reasonable basis for the tribunal’s decision without first giving the tribunal an opportunity to provide one. 

                    Reasons given by a tribunal in other decisions on the same issue can assist a reviewing court in determining whether a reasonable basis for an implied decision exists.  Other decisions by the Commissioner and the adjudicator have provided consistent analyses of the similarly worded s. 69(6) of the Freedom of Information and Protection of Privacy Act (“FOIPA”).  The Commissioner has held that a similar 90-day time limit in s. 69(6) applies only to his duty to complete an inquiry and not to extending time to complete an inquiry.  His interpretation of s. 69(6) systematically addresses the text of that provision, its purposes, and the

practical realities of conducting inquiries.  His interpretation of s. 69(6) satisfies the values of justification, transparency and intelligibility in administrative decision making.

                    It is reasonable to assume that the Commissioner’s interpretations of s. 69(6) of FOIPA are the reasons of the adjudicator in this case.  Both s. 50(5) of PIPA and s. 69(6) of FOIPA govern inquiries conducted by the Commissioner.  They are identically structured and use almost identical language.  It was reasonable for the adjudicator to apply the Commissioner’s interpretation of s. 69(6) of FOIPA to s. 50(5) of PIPA.  The interpretation does not render statutory requirements of notice meaningless.  No principle of statutory interpretation requires a presumption that an extension must be granted before the expiry of the 90-day time limit simply because s. 50(5) is silent as to when an extension of time can be granted.  The distinction between mandatory and directory provisions does not arise in this case because this is not a case of failure by a tribunal to comply with a legislative direction.  Therefore, there exists a reasonable basis for the adjudicator’s implied decision in this case.

                    Per Binnie and Deschamps JJ.:  There is agreement with Cromwell J. that the concept of jurisdiction is fundamental to judicial review of administrative tribunals and to the rule of law.  Administrative tribunals operate within a legal framework dictated by the Constitution and limited by their respective statutory mandates and it is the courts that determine the outer limits of those mandates.  On the other hand, the notion of a “true question of jurisdiction or vires” is not helpful at the practical everyday level of deciding whether or not the courts are entitled to intervene in a particular administrative decision.

                    The middle ground lies in the more nuanced approach adopted in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471, that if the issue relates to the interpretation and application of a tribunal’s own statute, is within its expertise and does not raise issues of general legal importance, the standard of reasonableness will generally apply.  The expression “issues of general legal importance” means issues whose resolution has significance outside the operation of the statutory scheme under consideration.  “Reasonableness” is a deceptively simple omnibus term which gives reviewing judges a broad discretion to choose from a variety of levels of scrutiny from the relatively intense to the not so intense.  The calibration will be challenging enough for reviewing judges without superadding an elusive search for something that can be labelled a true question of vires or jurisdiction.

                    On the other hand, Rothstein J.’s creation of a “presumption” based on insufficient criteria simply adds a further step to what should be a straightforward analysis.  A simplified approach would be that if the issue before the reviewing court relates to the interpretation or application of a tribunal’s “home statute” and related statutes that are also within the core function and expertise of the decision maker, and the issue does not raise matters of legal importance beyond the statutory scheme under review, the Court should afford a measure of deference under the standard of reasonableness.  Otherwise, the last word on questions of law should be left with the courts.

                    Per Cromwell J.:  In this case the applicable standard of review is reasonableness.  The Commissioner’s power to extend time is granted in broad terms in the context of a detailed and highly specialized statutory scheme which it is the Commissioner’s duty to administer and

under which he is required to exercise many broadly granted discretions.  The adjudicator’s decision on the timeliness issue should be reinstated and the matter should be remitted to the chambers judge to consider the issues not dealt with and resolved in the judicial review proceedings.  Courts have a constitutional responsibility to ensure that administrative action does not exceed its jurisdiction, but they must also give effect to legislative intent when determining the applicable standard of judicial review.  The standard of review analysis identifies the limits of the legality of a tribunal’s actions and defines the limits of the role of the reviewing court.  When existing jurisprudence has not already satisfactorily determined the standard of review applicable to the case at hand, the courts apply several relevant factors.  These factors allow the courts to identify questions that are reviewable on a standard of correctness.  Elevating to a virtually irrefutable presumption the general guideline that a tribunal’s interpretation of its home statute will not often raise a jurisdictional question goes well beyond saying that deference will usually result where a tribunal’s interpretation of its home statute is in issue.  The terms “jurisdictional” and “vires” are unhelpful to the standard of review analysis but true questions of jurisdiction and vires do exist. There are legal questions in “home” statutes whose resolution legislatures do not intend to leave to the tribunal.  As this Court’s recent jurisprudence confirms, as a matter of either constitutional law or legislative intent, a tribunal must be correct on certain issues.  The fact that s. 50(5) of PIPA is in the Commissioner’s home statute did not relieve the reviewing court of its duty to consider the argument that the provision was one whose interpretation the legislator intended to be reviewed for correctness, by examining the provision and other relevant factors.

Canadian Human Rights Commission v. A.G. Canada (SCC, 2011)

M filed a human rights complaint with the Canadian Human Rights Commission alleging that the Canadian Forces had discriminated against her on the ground of sex contrary to the provisions of the Canadian Human Rights Act   (“CHRA   ”).  The Canadian Human Rights Tribunal (“Tribunal”) concluded that M’s complaint of sexual harassment was substantiated in part and she was awarded $4,000 to compensate for “suffering in respect of feelings or self-respect”.  M applied for legal costs.  The Tribunal determined that it had the authority to order costs pursuant to s.   53(2)   (c) and (d) of the CHRA   and awarded M $47,000 in this regard.  The Federal Court upheld  the Tribunal’s decision on its authority to award costs.  The Federal Court of Appeal allowed an appeal of this decision and held that the Tribunal had no authority to make a costs award.

                    Held:  The appeal should be dismissed.

                    Administrative tribunals are generally entitled to deference in respect of the legal interpretation of their home statutes and laws or legal rules closely connected to them.  However, general questions of law that are both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise must be reviewed on a standard of correctness.  The proper standard of review of the Tribunal’s decision to award legal costs to the successful complainant is reasonableness.  Whether the Tribunal has the authority to award costs is a question of law which is located within the core function and expertise of the Tribunal and which relates to the interpretation and the application of its enabling statute.  This issue is neither

a question of jurisdiction, nor a question of law of central importance to the legal system as a whole falling outside the Tribunal’s area of expertise within the meaning of Dunsmuir.

                    The precise interpretive question before the Tribunal was whether the words of s.   53(2)   (c) and (d), which authorize the Tribunal to “compensate the victim . . . for any expenses incurred by the victim as a result of the discriminatory practice” permit an award of legal costs.  An  examination of the text, context and purpose of these provisions reveals that the Tribunal’s interpretation was not reasonable.  Human rights legislation expresses fundamental values and pursues fundamental goals.  It must be interpreted liberally and purposively so that the rights enunciated are given their full recognition and effect.  However, the intent of Parliament must be respected by reading the words of their provision in their entire context and according to their grammatical and ordinary sense, harmoniously with the scheme and object of the Act.  The words “any expenses incurred by the victim” taken on their own and divorced from their context are wide enough to include legal costs.  However, when these words are read in their statutory context, they cannot reasonably be interpreted as creating a stand-alone category of compensation capable of supporting any type of disbursement causally connected to the discrimination.  The Tribunal’s interpretation violates the legislative presumption against tautology, makes the repetition of the term “expenses” redundant and fails to explain why the term is linked to the particular types of compensation described in those paragraphs.  Moreover, the term “costs” has a well-understood meaning that is distinct from compensation or expenses.  If Parliament intended to confer authority to confer costs, it is difficult to understand why it did not use this very familiar and widely used legal term of art to implement that purpose.  The legislative history of the CHRA   , the Commission’s understanding of costs authority as well as a review of parallel provincial legislation all support the conclusion that the Tribunal has no authority to award costs.  Finally, the Tribunal’s interpretation would permit it to make a free-standing award for pain and suffering coupled with an award of legal costs in a potentially unlimited amount.  This view is difficult to reconcile with either the monetary limit of an award for pain and suffering or the omission of any express authority to award expenses in s.   53(3)   .

                    No reasonable interpretation of the relevant statutory provisions can support the view that the Tribunal may award legal costs to successful complainants.  Faced with a difficult point of statutory interpretation and conflicting judicial authority, the Tribunal adopted a dictionary meaning of “expenses” and articulated what it considered to be a beneficial policy outcome rather than engaging in an interpretative process taking account of the text, context and purpose of the provisions in issue.  A liberal and purposive interpretation cannot supplant a textual and contextual analysis simply in order to give effect to a policy decision different from the one made by Parliament.

Catalyst Paper Corp. v. Cowichan (SCC, 2012)

One of C’s four mills is located in the District of North Cowichan on Vancouver Island.  C seeks to have a municipal taxation bylaw set aside on the basis that it is unreasonable having regard to objective factors such as consumption of municipal services.  The District argued that reasonableness must take into account not only matters directly related to the treatment of a particular taxpayer, but a broad array of social, economic and demographic factors relating to the

community as a whole. The chambers judge upheld the bylaw.  The Court of Appeal dismissed the appeal.

                    Held:  The appeal should be dismissed.

                    The applicable standard of review is reasonableness.  The power of the courts to set aside municipal bylaws is a narrow one, and cannot be exercised simply because a bylaw imposes a greater share of the tax burden on some ratepayers than on others.  The critical question is what factors the court should consider in determining what lies within the range of possible reasonable outcomes.  Courts reviewing bylaws for reasonableness must approach the task against the backdrop of the wide variety of factors that elected municipal councillors may legitimately consider in enacting bylaws, including broad social, economic and political issues.  Only if the bylaw is one no reasonable body informed by these factors could have taken will the bylaw be set aside.

                    The fact that wide deference is owed to municipal councils does not mean that they have carte blanche.  Reasonableness limits municipal councils in the sense that the substance of their bylaws must conform to the rationale of the statutory regime set up by the legislature.  The range of reasonable outcomes is circumscribed by the purview of the legislative scheme that empowers a municipality to pass a bylaw.  Municipal councils must also adhere to appropriate processes and cannot act for improper purposes.

                    The bylaw falls within a reasonable range of outcomes.  The bylaw does not constitute a decision that no reasonable elected municipal council could have made. The District Council considered and weighed all relevant factors.  The process of passing the bylaw was properly followed.  The reasons for the bylaw were clear and the District’s policy had been laid out in a five-year plan.  The District’s approach complies with the Community Charter, which permits municipalities to apply different tax rates to different classes of property.  The Community Charter does not support C’s contention that property value taxes ought to be limited by the level of service consumed. Although the bylaw favours residential property owners, it is not unreasonably partial to them.

Newfoundland and Labrador Nurses Union, v. Newfoundland, (SCC, 2011)

   The union disputed an arbitrator’s award which involved the calculation of vacation benefits.  The issue the arbitrator had to decide was whether time as a casual employee could be credited towards annual leave entitlement if that employee became permanent.  In his decision, the arbitrator concluded that it was not to be included in calculating the length of vacation entitlements.  On judicial review, the arbitrator’s reasons were found to be insufficient and therefore unreasonable and the decision was set aside.  The majority of the Court of Appeal agreed with the arbitrator.

                    Held:  The appeal should be dismissed.

                    Dunsmuir confirmed that in determining whether a decision is reasonable, the inquiry for a reviewing court is about “justification, transparency and intelligibility”.  This represents a respectful appreciation that a wide range of specialized decision-makers render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decision that are often counter-intuitive to a generalist.  Dunsmuir does not stand for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for the result.  It is a more organic exercise — the reasons must be read together with the outcome, and serve the purpose of showing whether the result falls within a range of possible outcomes.  Reasons need not include all the arguments or details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result.  If the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.  It is an unhelpful elaboration on Baker to suggest that alleged deficiencies or flaws in the reasons fall under the category of a breach of the duty of procedural fairness.  Any challenge to the reasoning/result of the decision should be made within the reasonableness analysis.  Here, the reasons showed that the arbitrator was alive to the question at issue and came to a result well within the range of reasonable outcomes.

Slaight v. Davidson (SCC, 1991)

   Respondent had been employed by appellant as a "radio time salesman" for three and a half years when he was dismissed on the ground that his performance was inadequate.  Respondent filed a complaint and an adjudicator appointed by the Minister of Labour under s. 61.5(6)   of the Canada Labour Code   held that respondent had been unjustly dismissed.  Based on s. 61.5(9)(c) of the Code, the adjudicator made an initial order imposing on appellant an obligation to give respondent a letter of recommendation certifying (1) that he had been employed by the radio station from June 1980 to January 20, 1984; (2) the sales quotas he had been set and the amount of sales he actually made during this period; and (3) that an adjudicator had held that he was unjustly dismissed.  The order specifically indicated the amounts to be shown as sales quotas and as sales actually made.  A second order prohibited appellant from answering a request for information about respondent except by sending the letter of recommendation.  The Federal Court of Appeal dismissed an application by appellant to review and set aside the adjudicator's decision.  The purpose of the appeal at bar is to determine whether s. 61.5(9)(c) of the Code authorizes an adjudicator to make such orders; and in particular, whether the orders infringed appellant's freedom of expression guaranteed by s. 2   (b) of the Canadian Charter of Rights and Freedoms   .     Held (Beetz J. dissenting and Lamer J. dissenting in part):  The appeal should be dismissed.  The orders infringe s. 2   (b) of the Charter   but are justifiable under s. 1   .     The Charter   applies to orders made by the adjudicator.  The adjudicator is a creature of statute.  He is appointed pursuant to a legislative provision and derives all his powers from statute.  The Constitution is the supreme law of Canada, and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect.  It is thus impossible to

interpret legislation conferring discretion as conferring a power to infringe the Charter   , unless, of course, that power is expressly conferred or necessarily implied.  Such an interpretation would require this Court to declare the legislation to be of no force or effect, unless it could be justified under s.   1   of the Charter   .   It follows that an adjudicator, who exercises delegated powers, does not have the power to make an order that would result in an infringement of the Charter   .     The word "like" in the English version of s. 61.5(9)   (c) of the Canada Labour Code   does not have the effect of limiting the powers conferred on the adjudicator by allowing him to make only orders similar to the orders expressly mentioned in paras. (a) and (b) of that subsection.  Interpreting this provision in this way would mean applying the ejusdem generis rule.  It is impossible to apply this rule in the case at bar since one of the conditions essential for its application -- the presence of a common characteristic or common genus -- has not been met.  The interpretation according to which the word "like" in the English version of para. (c) does not have the effect of limiting the general power conferred on the adjudicator is also more consistent with the general scheme of the Code, and in particular with the purpose of Division V.7, which is to give non-unionized employees a means of challenging a dismissal they feel to be unjust and at the same time to equip the adjudicator with the powers necessary to remedy the consequences of such a dismissal.     Per Dickson C.J. and Wilson, La Forest and L'Heureux-Dubé JJ.:  The adjudicator's orders were reasonable in the administrative law sense.  Administrative law unreasonableness, as a preliminary standard of review, should not impose a more onerous standard upon government than would Charter   review.  While patent unreasonableness is important to maintain for questions untouched by the Charter   , such as review of determinations of fact, in the realm of value inquiry the courts should have recourse to this standard only in the clearest of cases in which a decision could not be justified under s.   1   of the Charter   .     The adjudicator's first order infringed s. 2   (b) of the Charter   but is saved under s. 1   .     The adjudicator's second order also infringed s. 2   (b) of the Charter   .  It was an attempt to prevent the appellant from expressing its opinion as to the respondent's qualifications beyond the facts set out in the letter.  But this order, too, was justifiable under s. 1   .  First, the objective was of sufficient importance to warrant overriding appellant's freedom of expression.  Like the first order, the objective of the second order was to counteract the effects of the unjust dismissal by enhancing the ability of the employee to seek new employment without being lied about by the previous employer.  The adjudicator's remedy was a legislatively-sanctioned attempt to remedy the unequal balance of power that normally exists between an employer and employee.  The governmental objective, in a general sense, was that of protection of a particularly vulnerable group, or members thereof.  To constitutionally protect freedom of expression in this case would be tantamount to condoning the continuation of an abuse of an already unequal relationship.  Second, the means chosen were reasonable.  Like the first order, the second order was rationally linked to the objective.  With the proven history of promoting a fabricated version of the quality of respondent's service and the concern that the employer would continue to treat him unfairly if he went back to work for the employer, it was rational for the adjudicator to attach a rider to the order for a reference letter so as to ensure that the employer's representatives did not subvert the effect of the letter by unjustifiably maligning its previous employee in the guise of giving a

reference.  Further, no less intrusive measure could have been taken and still achieved the objective with any likelihood. Monetary compensation would not have been an acceptable substitute because it would only have been compensation for the economic, not the personal, effects of unemployment. Labour should not be treated as a commodity and every day without work as exhaustively reducible to some pecuniary value.  The letter was tightly and carefully designed to reflect only a very narrow range of facts which were not really contested.  The appellant was not forced to state opinions which were not its own.  The prohibition was also very circumscribed.  It was triggered only in cases when the appellant was contacted for a reference and there was no requirement to send the letter to anyone other then prospective employers.  In short, the adjudicator went no further than was necessary to achieve the objective.  Finally, the effects of the measures were not so deleterious as to outweigh the objective of the measures. The objective in this case was a very important one, especially in light of Canada's international treaty commitment to protect the right to work in its various dimensions. For purposes of this final stage of the proportionality inquiry, the fact that a value has the status of an international human right, either in customary international law under a treaty to which Canada is a State Party, should generally be indicative of a high degree of importance attached to that objective.     Per Lamer J. (dissenting in part):  The adjudicator did not exceed his jurisdiction by ordering appellant to give respondent a letter of recommendation with a specified content.  Apart from the Charter   , the only limitation imposed by s. 61.5(9)   (c) is that the order must be designed to "remedy or counteract any consequence of the dismissal".  That is the case here.  The order prevents appellant's decision to dismiss respondent from having negative consequences for the latter's chances of finding new employment.  Ordering an employer to give a former employee a letter of recommendation containing only objective facts that are not in dispute is not as such unreasonable and there is nothing to indicate that the adjudicator was pursuing an improper objective or acting in bad faith or in a discriminatory manner.     However, the adjudicator exceeded his jurisdiction by prohibiting appellant from answering a request for information about respondent other than by sending the letter of recommendation.  Though the order is also meant to remedy or counteract the consequences of the dismissal, its effect, by prohibiting appellant from adding any comments whatever, is to create circumstances in which the letter could be seen as the expression of appellant's opinions.  This type of penalty is totalitarian and as such alien to the tradition of free nations like Canada.  Parliament therefore cannot have intended to authorize such an unreasonable use of the discretion conferred by it.  The adjudicator lost this jurisdiction when he made a patently unreasonable order.     The first order limits appellant's freedom of expression but this limitation, which is prescribed by law -- the order made by the adjudicator is only an exercise of the discretion conferred on him by statute -- can be justified under s. 1   of the Charter   .  The purpose of the order is clearly, as required by the Code, to counteract the consequences of the unjust dismissal.  Such an objective is sufficiently important to warrant a limitation on freedom of expression.  It is essential for the legislator to provide mechanisms to restore equilibrium in employer/employee relations so the employee will not be subject to arbitrary action by the employer.  Additionally, the means chosen to attain the objective are reasonable in the circumstances.  The order is fair and was carefully designed.  The purpose of the letter of recommendation is to correct the false impression given by the fact of the dismissal and it contains only facts that are not in dispute.  It

is rationally connected to the dismissal since in certain cases it is the only way of effectively remedying the consequences of the dismissal.  Finally, the consequences of the order are proportional to the objective sought.  The latter is important in our society.  The limitation on freedom of expression is not what could be described as very serious.  It does not abolish that freedom, but simply limits its exercise by requiring the employer to write something determined in advance.     Per Beetz J. (dissenting):  Except for the attestation relating to the unjust dismissal, the first order violated the appellant's freedoms of opinion and of expression and could not be justified under s. 1   of the Charter   .  This order forced the employer to write, as if they were his own, statements of facts in which, rightly or wrongly, he may not believe, or which he may ultimately find or think to be inaccurate, misleading or false.  In short, the order may force the appellant to lie.  To order the affirmation of facts, apart from belief in their veracity by the person who is ordered to affirm them constitutes a prima facie violation of the freedoms of opinion and expression.  Such a violation was totalitarian in nature and could never be justified under s.   1   of the Charter   .     The second order, coupled with the first, also violated the former employer's freedoms of opinion and of expression in a manner which was not justified under s. 1   of the Charter   .  The sending of the letter as drafted by the adjudicator, coupled with the prohibition to say or write anything else could lead to the implication that the former employer had no further comment to make upon the performance of the respondent and that, accordingly, the letter reflected the opinion of the former employer. In any event, the second order was disproportionate and unreasonable.  One should view with extreme suspicion an administrative order or even a judicial order which has the effect of preventing the litigants from commenting upon and even criticizing the rulings of the deciding board or court.     Further, in cases of unjust dismissal, the issuance by an adjudicator of a blanket and perpetual prohibition against a former employer to write or say anything to a prospective employer but what the adjudicator has dictated in the letter of recommendation can lead to absurd and even counter-productive results.  The adjudicator cannot foresee all the possible types of exchanges which are susceptible to occur between former and prospective employers.  The absurdity which results from the adjudicator's second order is sufficient to warrant its reversal.  If it is disproportionate and unreasonable from a practical point of view, then it has to be unreasonable from an administrative law point of view and it is difficult to conceive how it could be reasonable within the meaning of s. 1   of the Charter   .

Multani v. Marguerite-Bourgeoys S.B. (SCC, 2006)

G and his father B are orthodox Sikhs.  G believes that his religion requires him to wear a kirpan at all times; a kirpan is a religious object that resembles a dagger and must be made of metal.  In 2001, G accidentally dropped the kirpan he was wearing under his clothes in the yard of the school he was attending.  The school board sent G’s parents a letter in which, as a reasonable accommodation, it authorized their son to wear his kirpan to school provided that he complied with certain conditions to ensure that it was sealed inside his clothing.  G and his parents agreed

to this arrangement.  The governing board of the school refused to ratify the agreement on the basis that wearing a kirpan at the school violated art. 5 of the school’s Code de vie (code of conduct), which prohibited the carrying of weapons.  The school board’s council of commissioners upheld that decision and notified G and his parents that a symbolic kirpan in the form of a pendant or one in another form made of a material rendering it harmless would be acceptable in the place of a real kirpan.  B then 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 Superior Court granted the motion, declared the decision to be null, and authorized G to wear his kirpan under certain conditions.  The Court of Appeal set aside the Superior Court’s judgment.  After deciding that the applicable standard of review was reasonableness simpliciter, the Court of Appeal restored the council of commissioners’ decision.  It concluded that the decision in question infringed G’s freedom of religion under s.   2   (a) of the Canadian Charter of Rights and Freedoms   (“Canadian Charter   ”) and s. 3 of Quebec’s Charter of human rights and freedoms (“Quebec Charter”), but that the infringement was justified for the purposes of s.   1   of the Canadian Charter   and s. 9.1 of the Quebec Charter.  Held:  The appeal should be allowed.  The decision of the Court of Appeal should be set aside and the decision of the council of commissioners should be declared to be null. Per McLachlin C.J. and Bastarache, Binnie, Fish and Charron JJ.:  In the case at bar, it is the compliance of the commissioners’ decision with the requirements of the Canadian Charter   that is central to the dispute, not the decision’s validity from the point of view of administrative law.  There is no suggestion that the council of commissioners did not have jurisdiction, from an administrative law standpoint, to approve the Code de vie.  Nor is the administrative and constitutional validity of the rule against carrying weapons in issue.  Since the complaint is based entirely on freedom of religion, the Court of Appeal erred in applying the reasonableness standard to its constitutional analysis.  The administrative law standard of review was not relevant.  [18-20] The Canadian Charter   applies to the decision of the council of commissioners, despite the decision’s individual nature.  Any infringement of a guaranteed right that results from the actions of a decision maker acting pursuant to its enabling statute is also a limit “prescribed by law” within the meaning of s.   1   .  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 Canadian 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. [22-23] In the instant case, the Court does not at the outset have to reconcile two constitutional rights, as only freedom of religion is in issue here.  However, that freedom is not absolute and can conflict with other constitutional rights.  Since the test governing limits on rights was developed in Oakes, the Court has never called into question the principle that rights are reconciled through the constitutional justification required by s.   1   of the Canadian Charter   .  Since the decision genuinely affects both parties and was made by an administrative body exercising statutory powers, a contextual analysis under s.   1   will make it possible to balance the relevant competing values in a more comprehensive manner. [29-30]

 The council of commissioners’ decision prohibiting G from wearing his kirpan to school infringes his freedom of religion.  G genuinely believes that he would not be complying with the requirements of his religion were he to wear a plastic or wooden kirpan, and none of the parties have contested the sincerity of his belief.  The interference with G’s freedom of religion is neither trivial nor insignificant, as it has deprived him of his right to attend a public school.  The infringement of G’s freedom of religion cannot be justified under s.   1   of the Canadian Charter   .  Although the council’s decision to prohibit the wearing of a kirpan was motivated by a pressing and substantial objective, namely to ensure a reasonable level of safety at the school, and although the decision had a rational connection with the objective, it has not been shown that such a prohibition minimally impairs G’s rights. [2] [38-41] [44] [48] [77]

The analogy with the duty of reasonable accommodation is helpful to explain the burden resulting from the minimal impairment test with respect to an individual.  In the circumstances of the instant case, the decision to establish an absolute prohibition against wearing a kirpan does not fall within a range of reasonable alternatives.  The arguments in support of such a prohibition must fail.  The risk of G using his kirpan for violent purposes or of another student taking it away from him is very low, especially if the kirpan is worn under conditions such as were imposed by the Superior Court.  It should be added that G has never claimed a right to wear his kirpan to school without restrictions.  Furthermore, there are many objects in schools that could be used to commit violent acts and that are much more easily obtained by students, such as scissors, pencils and baseball bats.  The evidence also reveals that not a single violent incident related to the presence of kirpans in schools has been reported.  Although it is not necessary to wait for harm to be done before acting, the existence of concerns relating to safety must be unequivocally established for the infringement of a constitutional right to be justified.  Nor does the evidence support the argument that allowing G to wear his kirpan to school could have a ripple effect.  Lastly, the argument that the wearing of kirpans should be prohibited because the kirpan is a symbol of violence and because it sends the message that using force is necessary to assert rights and resolve conflict is not only contradicted by the evidence regarding the symbolic nature of the kirpan, but is also disrespectful to believers in the Sikh religion and does not take into account Canadian values based on multiculturalism.  Religious tolerance is a very important value of Canadian society.  If some students consider it unfair that G may wear his kirpan to school while they are not allowed to have knives in their possession, it is incumbent on the schools to discharge their obligation to instil in their students this value that is at the very foundation of our democracy.  A total prohibition against wearing a kirpan to school undermines the value of this religious symbol and sends students the message that some religious practices do not merit the same protection as others.  Accommodating G and allowing him to wear his kirpan under certain conditions demonstrates the importance that our society attaches to protecting freedom of religion and to showing respect for its minorities.  The deleterious effects of a total prohibition thus outweigh its salutary effects.  [51-54] [57-59] [67-71] [76] [79] Given that G no longer attends his school, the appropriate and just remedy is to declare the decision prohibiting him from wearing his kirpan to be null. [82] 

Per Deschamps and Abella JJ.:  Recourse to a constitutional law justification is not appropriate where, as in this case, what must be assessed is the propriety of an administrative body’s decision relating to human rights.  Whereas a constitutional justification analysis must be carried out when reviewing the validity or enforceability of a norm such as a law, regulation or other similar rule of general application, the administrative law approach must be retained for reviewing decisions and orders made by administrative bodies.  Basing the analysis on the principles of administrative law not only averts the problems that result from blurring the distinction between the principles of constitutional justification and the principles of administrative law, but also prevents the impairment of the analytical tools developed specifically for each of these fields.  In addition, this approach allows parties and administrative bodies to know in advance which rules govern disputes involving human rights issues.  [85] [103] [125] Simply alleging that a s.   1   analysis is required does not make administrative law inapplicable.  If an administrative 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.  It is difficult to conceive of an administrative decision being permitted to stand if it violates the Canadian Charter   .  [86] [93] [128]

A decision or order made by an administrative body cannot be equated with a “law” within the meaning of s.   1   of the Canadian Charter   .  The expression “law” used in s.   1   naturally refers to a norm or rule of general application.  The Oakes test, which was developed to assess legislative policies, is based on the duty of the executive and legislative branches of government to account to the courts for any rules they establish that infringe protected rights.  That test, which is based on an analysis of societal interests, is better suited, conceptually and literally, to the concept of “prescribed by law”.  The duty to account imposed — conceptually and in practice — on the legislative and executive branches is not easily applied to administrative tribunals.  [112-113] [119-121] Lastly, even if the concepts of reasonable accommodation and minimal impairment have a number of similarities, they belong to two different analytical categories.  On the one hand, the process required by the duty of reasonable accommodation takes into account the specific details of the circumstances of the parties.  The justification of minimal impairment, on the other hand, is based on societal interests.  An administrative law analysis is microcosmic, whereas a constitutional law analysis is generally macrocosmic.  These separate streams — public versus individual — should be kept distinct.  [129-134] In the instant case, it is the standard of reasonableness that applies to the decision of the school board’s council of commissioners.  The council did not sufficiently consider either the right to freedom of religion or the proposed accommodation measure.  It merely applied literally the Code de vie in effect at the school.  By disregarding the right to freedom of religion without considering the possibility of a solution that posed little or no risk to the safety of the school community, the council made an unreasonable decision.  [99] 

Per LeBel J.:  It is not always necessary to resort to the Canadian Charter   or, in the case of Quebec, the Quebec Charter when a decision can be reached by applying general administrative law principles or the specific rules governing the exercise of a delegated power.  However, the dispute as presented makes a constitutional analysis unavoidable.  Where a decision is contested on the basis that the administrative body’s exercise of the delegated power is vitiated by the violation of a fundamental right, the only way to determine whether the infringement of the constitutional standard is justified is to consider the fundamental rights in issue and how they have been applied.  Where the exercise of such a power has an impact on the relationship between competing constitutional rights, those rights can be reconciled in two ways.  The first approach involves defining the rights and how they relate to each other, and the second consists of justification under s.   1   of the Canadian Charter   .  In the case at bar, the first approach can be dispensed with, as the evidence does not show a prima facie infringement of the right to security of the person.  It is therefore necessary to turn to justification under s.   1   .  In the case of an individualized decision made pursuant to statutory authority, it may be possible to dispense with certain steps of the analysis.  The existence of a statutory authority that is not itself challenged makes it pointless to review the objectives of the act.  The issue becomes one of proportionality or, more specifically, minimal limitation of the guaranteed right, having regard to the context in which the right has been infringed.  Reasonable accommodation that would meet the requirements of the constitutional standard must be considered at this stage and in this context.  In the case at bar, the school board has not shown that its prohibition was justified and met the constitutional standard.  [141-144] [153-155]

Dore v. Barreau de Quebec (SCC, 2012),

D appeared before a judge of the Superior Court of Quebec on behalf of a client.  In the course of D’s argument, the judge criticized D.  In his written reasons rejecting D’s application, the judge levied further criticism, accusing D of using bombastic rhetoric and hyperbole, of engaging in idle quibbling, of being impudent and of doing nothing to help his client discharge his burden.  D then wrote a private letter to the judge calling him loathsome, arrogant and fundamentally unjust, and accusing him of hiding behind his status like a coward, of having a chronic inability to master any social skills, of being pedantic, aggressive and petty, and of having a propensity to use his court to launch ugly, vulgar and mean personal attacks.

                    The Assistant Syndic of the Barreau du Québec filed a complaint against D based on that letter alleging that D had violated art. 2.03 of the Code of ethics of advocates, which states that the conduct of advocates “must bear the stamp of objectivity, moderation and dignity”.  The Disciplinary Council of the Barreau du Québec found that the letter was likely to offend, rude and insulting, that the statements had little expressive value, and that the judge’s conduct, which resulted in a reprimand from the Canadian Judicial Council, could not be relied on as justification for it.  The Council rejected D’s argument that art. 2.03 violated s. 2   (b) of the Canadian Charter of Rights and Freedoms   , finding that the limitation on freedom of expression was reasonable.  Based on the seriousness of D’s conduct, the Council reprimanded D and suspended his ability to practice law for 21 days.  On appeal to the Tribunal des professions, D abandoned his constitutional challenge to the specific provision, arguing instead that the sanction itself violated his freedom of expression.  The Tribunal found that D had exceeded the

objectivity, moderation and dignity expected of him and that the decision to sanction D was a minimal restriction on his freedom of expression.  On judicial review, the Superior Court of Quebec upheld the decision of the Tribunal.

                    Before the Quebec Court of Appeal, D no longer appealed the actual sanction of 21 days, challenging only the decision to reprimand him as a violation of the Charter   .  The Court of Appeal applied a full Oakes analysis under s. 1   of the Charter   and upheld the reprimand.  It found that D’s letter had limited importance compared to the values underlying freedom of expression, that the Council’s decision had a rational connection to the important objective of protecting the public and that the effects of the decision were proportionate to its objectives.

                    Held:  The appeal from the result should be dismissed.

                    To determine whether administrative decision-makers have exercised their statutory discretion in accordance with Charter   protections, the review should be in accordance with an administrative law approach, not a s. 1   Oakes analysis. The standard of review is reasonableness.

                    In assessing whether a law violates the Charter   , we are balancing the government’s pressing and substantial objectives against the extent to which they interfere with the Charter   right at issue.  If the law interferes with the right no more than is reasonably necessary to achieve the objectives, it will be found to be proportionate, and, therefore, a reasonable limit under s.   1   .  But in assessing whether an adjudicated decision violates the Charter   , we are engaged in balancing somewhat different but related considerations, namely, has the decision-maker disproportionately, and therefore unreasonably, limited a Charter   right.  In both cases, we are looking for whether there is an appropriate balance between rights and objectives, and the purpose of both exercises is to ensure that the rights at issue are not unreasonably limited.

                    There is nothing in the administrative law approach which is inherently inconsistent with the strong protection of the Charter   ’s guarantees and values.  An administrative law approach recognizes that administrative decision-makers are both bound by fundamental values and empowered to adjudicate them, and that administrative discretion is exercised in light of constitutional guarantees and the values they reflect.  An administrative decision-maker exercising a discretionary power under his or her home statute, has, by virtue of expertise and specialization, particular familiarity with the competing considerations at play in weighing Charter   values and will generally be in the best position to consider the impact of the relevant Charter   guarantee on the specific facts of the case.  Under a robust conception of administrative law, discretion is exercised in light of constitutional guarantees and the values they reflect. 

                    When applying Charter   values in the exercise of statutory discretion, an administrative decision-maker must balance Charter   values with the statutory objectives by asking how the Charter   value at issue will best be protected in light of those objectives.  This is at the core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charter   protection with the statutory objectives. 

                    On judicial review, the question becomes whether, in assessing the impact of the relevant Charter   protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter   rights and values at play.  Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a “margin of appreciation”, or deference, to administrative and legislative bodies in balancing Charter   values against broader objectives.  In the Charter   context, the reasonableness analysis is one that centres on proportionality, that is, on ensuring that the decision interferes with the relevant Charter   guarantee no more than is necessary given the statutory objectives.  If the decision is disproportionately impairing of the guarantee, it is unreasonable.  If, on the other hand, it reflects a proper balance of the mandate with Charter   protection, it is a reasonable one.  But both decision-makers and reviewing courts must remain conscious of the fundamental importance of Charter   values in the analysis.

                    Here, the decision to suspend D for 21 days was not before the Court. The only issue was whether the Council’s decision to reprimand D reflected a proportionate balancing of the lawyer’s expressive rights with its statutory mandate to ensure that lawyers behave with “objectivity, moderation and dignity” in accordance with art. 2.03 of the Code of ethics.  In dealing with the appropriate boundaries of civility for a lawyer, the severity of the conduct must be interpreted in light of the expressive rights guaranteed by the Charter   , and, in particular, the public benefit in ensuring the right of lawyers to express themselves about the justice system in general and judges in particular.  We are, in other words, balancing the fundamental importance of open, and even forceful, criticism of our public institutions with the need to ensure civility in the profession. Disciplinary bodies must therefore demonstrate that they have given due regard to the importance of the expressive rights at issue, both in light of an individual lawyer’s right to expression and the public’s interest in open discussion.  As with all disciplinary decisions, this balancing is a fact-dependent and discretionary exercise.

                    Proper respect for these expressive rights may involve disciplinary bodies tolerating a degree of discordant criticism.  The fact that a lawyer is criticizing a judge, a tenured and independent participant in the justice system, may raise, not lower, the threshold for limiting a lawyer’s expressive rights under the Charter   . This does not, however, argue for an unlimited right on the part of lawyers to breach the legitimate public expectation that they will behave with civility.  Lawyers potentially face criticisms and pressures on a daily basis.  They are expected by the public, on whose behalf they serve, to endure them with civility and dignity.  This is not always easy where the lawyer feels he or she has been unfairly provoked, as in this case.  But it is precisely when a lawyer’s equilibrium is unduly tested that he or she is particularly called upon to behave with transcendent civility.  On the other hand, lawyers should not be expected to behave like verbal eunuchs.  They not only have a right to speak their minds freely, they arguably have a duty to do so.  But they are constrained by their profession to do so with dignified restraint. 

                    A reprimand for a lawyer does not automatically flow from criticizing a judge or the judicial system.  Such criticism, even when it is expressed vigorously, can be constructive.  However in the context of disciplinary hearings, such criticism will be measured against the public’s reasonable expectations of a lawyer’s professionalism.  As the Disciplinary Council

found, D’s letter was outside those expectations. His displeasure with the judge was justifiable, but the extent of the response was not.

                    In light of the excessive degree of vituperation in the letter’s context and tone, the Council’s decision that D’s letter warranted a reprimand represented a proportional balancing of D’s expressive rights with the statutory objective of ensuring that lawyers behave with “objectivity, moderation and dignity”.  The decision is, as a result, a reasonable one.

Martin & Laseur v. Nova Scotia (W.C.B.) (SCC, 2003)

The appellants, L and M, both suffer from the disability of chronic pain attributable to a work-related injury.  M worked as a foreman and sustained a lumbar sprain.  In the following months, he returned to work several times, but recurring pain required him to stop.  He attended a work conditioning and hardening program.  During this period, the Workers’ Compensation Board of Nova Scotia provided him with temporary disability benefits and rehabilitation services.  When his temporary benefits were discontinued, M sought review of this decision, but his claim was denied by the Board.  L was employed as a bus driver and injured her back and her right hand when she slipped and fell from the bumper of her bus.  She received temporary disability benefits.  Although L attempted to return to work on several occasions, she found that performing her duties aggravated her condition.  She was denied a permanent partial disability award and vocational rehabilitation assistance.  M and L appealed the Board’s decisions to the Workers’ Compensation Appeals Tribunal on the ground that the Functional Restoration (Multi-Faceted Pain Services) Program Regulations and portions of s. 10B of the Workers’ Compensation Act infringed s.   15(1)   of the Canadian Charter of Rights and Freedoms   .  These provisions exclude chronic pain from the purview of the regular workers’ compensation system and provide, in lieu of the benefits normally available to injured workers, a four-week Functional Restoration Program beyond which no further benefits are available.  The Board challenged the Appeals Tribunal’s jurisdiction to hear the Charter   argument. The Appeals Tribunal affirmed its jurisdiction to apply the Charter   and allowed M’s appeal on the merits, holding that the Regulations and s. 10B(c) of the Act violated s.   15   of the Charter   and that these violations were not justified under s.   1   .  M was awarded temporary benefits from August 6 to October 15, 1996.  In L’s appeal, the Appeals Tribunal concluded, based on the reasons given in M’s appeal, that s. 10A and s. 10B(b) and (c) of the Act also violated s.   15(1)   of the Charter   and were not saved by s.   15(2)   or s. 1   ; however, the Appeals Tribunal found that while L suffered from chronic pain attributable to her work injury, her permanent medical impairment rating under the applicable guidelines was 0 percent, thus barring her from obtaining permanent impairment or vocational rehabilitation.  The Board appealed the Appeals Tribunal’s Charter   conclusions, M cross-appealed the cut-off of benefits as of October 15, 1996, and L cross-appealed the refusal to award benefits.  The Court of Appeal allowed the Board’s appeals and dismissed the cross-appeals.  The court found that the Appeals Tribunal did not have jurisdiction to consider the constitutional validity of the Act and that, in any event, the chronic pain provisions did not demean the human dignity of the claimants and thus did not violate s. 15(1)   of the Charter   .  

Held:  The appeals should be allowed.  Section 10B of the Act and the Regulations in their entirety infringe s.   15(1)   of the Charter   and the infringement is not justified under s.   1   .  The challenged provisions are of no force or effect by operation of s. 52(1)   of the Constitution Act, 1982   .  The general declaration of invalidity is postponed for six months from the date of this judgment.  In M’s case, the decision rendered by the Appeals Tribunal is reinstated.  L’s case is returned to the Board.

The Constitution is the supreme law of Canada and, by virtue of s.   52(1)   of the Constitution Act, 1982   , the question of constitutional validity inheres in every legislative enactment.  From this principle of constitutional supremacy flows, as a practical corollary, the idea that Canadians should be entitled to assert the rights and freedoms that the Constitution guarantees them in the most accessible forum available, without the need for parallel proceedings before the courts.  To allow an administrative tribunal to decide Charter   issues does not undermine the role of the courts as final arbiters of constitutionality in Canada.  Administrative tribunal decisions based on the Charter   are subject to judicial review on a correctness standard.  In addition, the constitutional remedies available to administrative tribunals are limited and do not include general declarations of invalidity.  A determination by a tribunal that a provision of its enabling statute is invalid pursuant to the Charter   is not binding on future decision-makers, within or outside the tribunal’s administrative scheme.  Only by obtaining a formal declaration of invalidity by a court can a litigant establish the general invalidity of a legislative provision for all future cases. 

The Court of Appeal erred in concluding that the Appeals Tribunal did not have jurisdiction to consider the constitutionality of the challenged provisions of the Act and the Regulations.  Administrative tribunals which have jurisdiction, explicit or implied, to decide questions of law arising under a legislative provision are presumed to have concomitant jurisdiction to decide the constitutional validity of that provision.  In applying this approach, there is no need to draw any distinction between “general” and “limited” questions of law.  Explicit jurisdiction must be found in the terms of the statutory grant of authority.  Implied jurisdiction must be discerned by looking at the statute as a whole.  Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal’s capacity to consider questions of law.  Practical considerations, however, cannot override a clear implication from the statute itself.  The party alleging that the tribunal lacks jurisdiction to apply the Charter   may rebut the presumption by pointing to an explicit withdrawal of authority to consider the Charter   ; or by 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.  Such an implication should generally arise from the statute itself, rather than from external considerations.  To the extent that Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, is inconsistent with this approach, it should no longer be relied upon. 

The Appeals Tribunal could properly consider and decide the Charter   issue raised in this case.  The legislature expressly conferred on the Appeals Tribunal the authority to decide questions of law by providing, in s. 252(1) of the Act, that it “may confirm, vary or reverse the decision of a hearing officer” exercising the authority conferred upon the Board by s. 185(1) of the Act to “determine all questions of fact and law arising pursuant to this Part”.  Other provisions of the Act also confirm the legislature’s intention that the Appeals Tribunal decide questions of law, including s.   256(1)   , which provides for a further appeal to the Court of Appeal “on any question of law”.  This suggests that the Appeals Tribunal may deal initially with such questions.  The Appeals Tribunal thus has explicit jurisdiction to decide questions of law arising under the challenged provisions, a jurisdiction which is presumed to include the authority to consider their constitutional validity.  This presumption is not rebutted in this case, as there is no clear implication arising from the Act that the legislature intended to exclude the Charter   from the scope of the Appeals Tribunal’s authority.  Even if there had been no express provision endowing the Appeals Tribunal with authority to consider and decide questions of law arising under the Act, an examination of the statutory scheme set out by the Act would lead to the conclusion that it has implied authority to do so. The Court of Appeal also erred in concluding that the challenged provisions of the Act and the Regulations did not infringe s.   15(1)   of the Charter   .  The appropriate comparator group for the s.   15(1)   analysis in this case is the group of workers subject to the Act who do not have chronic pain and are eligible for compensation for their employment-related injuries.  By entirely excluding chronic pain from the application of the general compensation provisions of the Act and limiting the applicable benefits to a four-week Functional Restoration Program for workers injured after February 1, 1996, the Act and the Regulations clearly impose differential treatment upon injured workers suffering from chronic pain on the basis of the nature of their physical disability, an enumerated ground under s.   15(1)   of the Charter   .  The view that since both the claimants and the comparator group suffer from physical disabilities, differential treatment of chronic pain within the workers’ compensation scheme is not based on physical disability must be rejected.  Differential treatment can occur on the basis of an enumerated ground despite the fact that not all persons belonging to the relevant group are equally mistreated.  Distinguishing injured workers with chronic pain from those without is still a disability-based distinction. Although, under the current guidelines, L would be found to have a 0 percent impairment rating and would thus be denied benefits anyway, deprivation of access to an institution available to others, even though the individual bringing the claim would not necessarily derive immediate benefits from such access, constitutes differential treatment.  In the context of the Act, and given the nature of chronic pain, the differential treatment is discriminatory.  It is discriminatory because it does not correspond to the actual needs and circumstances of injured workers suffering from chronic pain, who are deprived of any individual assessment of their needs and circumstances.  Such workers are, instead, subject to uniform, limited benefits based on their presumed characteristics as a group.  The scheme also ignores the needs of those workers who, despite treatment, remain permanently disabled by chronic pain.  Nothing indicates that the scheme is aimed at improving the circumstances of a more disadvantaged group, or that the interests affected are merely economic or otherwise minor.  On the contrary, the denial of the reality of the pain suffered by the affected workers reinforces widespread negative assumptions held by employers, compensation officials and some members of the medical profession.  A reasonable person in circumstances similar to those of L and M, fully apprised of all the relevant

circumstances and taking into account the relevant contextual factors, would conclude that the challenged provisions have the effect of demeaning the dignity of chronic pain sufferers.

The infringement of L’s and M’s equality rights cannot be justified under s.   1   of the Charter   .  The first objective of maintaining the financial viability of the Accident Fund is not pressing and substantial.  Budgetary considerations in and of themselves cannot justify violating a Charter   right, although they may be relevant in determining the appropriate degree of deference to governmental choices based on a non-financial objective.  Likewise, the second objective of developing a consistent legislative response to chronic pain claims cannot stand on its own.  Mere administrative expediency or conceptual elegance cannot be sufficiently pressing and substantial to override a Charter   right.  This objective only becomes meaningful when examined with the third objective of avoiding fraudulent claims based on chronic pain.  Developing a consistent legislative response to the special issues raised by chronic pain claims — such as determining whether the pain is actually caused by the work-related accident and assessing the relevant degree of impairment — in order to avoid fraudulent claims is a pressing and substantial objective.  The challenged provisions of the Act and the Regulations are rationally connected to this objective.  It is obvious, however, that the blanket exclusion of chronic pain from the workers’ compensation system does not minimally impair the rights of chronic pain sufferers.  The challenged provisions make no attempt whatsoever to determine who is genuinely suffering and needs compensation, and who may be abusing the system.  They ignore the very real needs of the many workers who are in fact impaired by chronic pain and whose condition is not appropriately remedied by the four-week Functional Restoration Program.  The fourth objective is to implement early medical intervention and return to work as the optimal treatment for chronic pain.  Assuming that this objective is pressing and substantial and that the challenged provisions are rationally connected to it, they do not minimally impair the rights of chronic pain sufferers.  No evidence indicates that an automatic cut-off of benefits regardless of individual needs is necessary to achieve that goal.  This is particularly true with respect to ameliorative benefits which would actually facilitate return to work, such as vocational rehabilitation, medical aid and the rights to re-employment and accommodation.  Moreover, the legislation deprives workers whose chronic pain does not improve as a result of early medical intervention and who return to work from receiving any benefits beyond the four-week Functional Restoration Program.  Others, like L, are not even admissible to this program because of the date of their injuries.  The deleterious effects of the challenged provisions on these workers clearly outweigh their potential beneficial effects.

R. v. Conway, (SCC, 2010)

In 1984, C was found not guilty by reason of insanity on a charge of sexual assault with a weapon.  Since the verdict, he has been detained in mental health facilities and diagnosed with several mental disorders.  Prior to his annual review hearing before the Ontario Review Board in 2006, C alleged that the mental health centre where he was being detained had breached his rights under the Canadian Charter of Rights and Freedoms   .  He sought an absolute discharge as a remedy under s.   24(1)   of the Charter   .  The Board unanimously concluded that C was a threat to public safety, who would, if released, quickly return to police and hospital custody.  This made him an unsuitable candidate for an absolute discharge under s.   672.54   (a) of the Criminal

Code   , which provides that an absolute discharge is unavailable to any patient who is a “significant threat to the safety of the public”.  The Board therefore ordered that C remain in the mental health centre.  The Board further concluded that it had no jurisdiction to consider C’s Charter   claims.  A majority in the Court of Appeal upheld the Board’s conclusion that it was not a court of competent jurisdiction for the purpose of granting an absolute discharge under s.   24(1)   of the Charter   .  However, the Court of Appeal unanimously concluded that it was unreasonable for the Board not to address the treatment impasse plaguing C’s detention.  This issue was remitted back to the Board.

Before this Court, the issue is whether the Ontario Review Board has jurisdiction to grant remedies under s.   24(1)   of the Charter   .  C has requested, in addition to an absolute discharge, remedies dealing with his conditions of detention:  an order directing the mental health centre to provide him with access to psychotherapy and an order prohibiting the centre from housing him near a construction site. Held:  The appeal should be dismissed. When the Charter   was proclaimed, its relationship with administrative tribunals was a blank slate.  However, various dimensions of the relationship quickly found their way to this Court.  The first wave of relevant cases started in 1986 with Mills v. The Queen, [1986] 1 S.C.R. 863.  The Mills cases established that a court or administrative tribunal was a “court of competent jurisdiction” under s.   24(1)   of the Charter   if it had jurisdiction over the person, the subject matter, and the remedy sought.  The second wave started in 1989 with Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038.  The Slaight cases established that any exercise of statutory discretion is subject to the Charter   and its values.  The third and final wave started in 1990 with Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, followed in 1991 by Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, and Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22.  The cases flowing from this trilogy, which deal with s.   52(1)   of the Constitution Act, 1982   , established that specialized tribunals with both the expertise and the authority to decide questions of law are in the best position to hear and decide the constitutionality of their statutory provisions.

This evolution of the case law over the last 25 years has cemented the direct relationship between the Charter   , its remedial provisions and administrative tribunals.  It confirms that we do not have one Charter   for the courts and another for administrative tribunals and that, with rare exceptions, administrative tribunals with the authority to apply the law, have the jurisdiction to apply the Charter   to the issues that arise in the proper exercise of their statutory functions.  The evolution also confirms that expert tribunals should play a primary role in determining Charter   issues that fall within their specialized jurisdiction and that in exercising their statutory functions, administrative tribunals must act consistently with the Charter   and its values. Moreover, the jurisprudential evolution affirms the practical advantages and the constitutional basis for allowing Canadians to assert their Charter   rights in the most accessible forum available, without the need for bifurcated proceedings between superior courts and administrative tribunals.  Any scheme favouring bifurcation is, in fact, inconsistent with the

well-established principle that an administrative tribunal is to decide all matters, including constitutional questions, whose essential factual character falls within the tribunal’s specialized statutory jurisdiction.

A merger of the three distinct constitutional streams flowing from this Court’s administrative law jurisprudence calls for a new approach that consolidates this Court’s gradual expansion of the scope of the Charter   and its relationship with administrative tribunals.  When a Charter   remedy is sought from an administrative tribunal, the initial inquiry should be whether the tribunal can grant Charter   remedies generally.  The answer to this question flows from whether the administrative tribunal has the jurisdiction, explicit or implied, to decide questions of law.  If it does, and unless the legislature has clearly demonstrated its intent to withdraw the Charter   from the tribunal’s authority, the tribunal will have the jurisdiction to grant Charter   remedies in relation to Charter   issues arising in the course of carrying out its statutory mandate.  The tribunal is, in other words, a court of competent jurisdiction under s.   24(1)   of the Charter   .  This approach has the benefit of attributing Charter   jurisdiction to a tribunal as an institution, rather than requiring litigants to test, remedy by remedy, whether the tribunal is a court of competent jurisdiction. Once the initial inquiry has been resolved in favour of Charter   jurisdiction, the remaining question is whether the tribunal can grant the particular remedy sought given its statutory scheme.  Answering this question is necessarily an exercise in discerning legislative intent, namely, whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal.  Relevant considerations include the tribunal’s statutory mandate and function.

In this case, C seeks certain Charter   remedies from the Board.  The first inquiry, therefore, is whether the Board is a court of competent jurisdiction under s.   24(1)   .  The answer to this question depends on whether the Board is authorized to decide questions of law.  The Board is a quasi-judicial body with significant authority over a vulnerable population.  It operates under Part XX.1 of the Criminal Code   as a specialized statutory tribunal with ongoing supervisory jurisdiction over the treatment, assessment, detention and discharge of NCR patients:  accused who have been found not criminally responsible by reason of mental disorder.  Part XX.1 of the Criminal Code   provides that any party to a review board hearing may appeal the board’s disposition on a question of law, fact or mixed fact and law.  The Code also authorizes appellate courts to overturn a review board’s disposition if it was based on a wrong decision on a question of law.  This statutory language is indicative of the Board’s authority to decide questions of law.  Given this conclusion, and since Parliament has not excluded the Charter   from the Board’s mandate, it follows that the Board is a court of competent jurisdiction for the purpose of granting remedies under s.   24(1)   of the Charter   . The next question is whether the remedies sought are the kinds of remedies which would fit within the Board’s statutory scheme.  This requires consideration of the scope and nature of the Board’s statutory mandate and functions.  The review board regime is intended to reconcile the “twin goals” of protecting the public from dangerous offenders and treating NCR patients fairly and appropriately.  Based on the Board’s duty to protect public safety, its statutory authority to grant absolute discharges only to non-dangerous NCR patients, and its mandate to assess and

treat NCR patients with a view to reintegration rather than recidivism, it is clear that Parliament intended that dangerous NCR patients have no access to absolute discharges.  C cannot, therefore, obtain an absolute discharge from the Board.  The same is true of C’s request for a treatment order.  Allowing the Board to prescribe or impose treatment is expressly prohibited by s.   672.55   of the Criminal Code   .  Finally, neither the validity of C’s complaint about the location of his room nor, obviously, the propriety of his request for an order prohibiting the mental health centre from housing him near a construction site, have been considered by the Board.  It may well be that the substance of C’s complaint can be fully addressed within the Board’s statutory mandate and the exercise of its discretion in accordance with Charter   values.  If so, resort to s.   24(1)   of the Charter   may not add to the Board’s capacity to either address the substance of C’s complaint or provide appropriate redress.

Apotex v. Canada, (FCA, 1990)

These were an appeal and a cross-appeal from a decision by Dubé J. allowing an application for mandamus to issue a notice of compliance (NOC) with respect to Apotex's generic version of the drug enalapril and denying the appellants' application for prohibition. The Patent Act Amendment Act, 1992 (Bill C-91), which was given Royal Assent on February 4, 1993, was enacted in order to protect innovator pharmaceutical companies' distribution and sales rights to patented drugs. Bill C-91 came into force on February 15, 1993 with the exception of the new section 55.2 of the Patent Act which, together with the Patented Medicines Regulations, were not brought into effect until March 12, 1993. Under the Food and Drugs Act (FDA), the Minister of National Health and Welfare must ensure that new drugs meet health and safety requirements. The manufacturer of a new drug must file a New Drug Submission (NDS) setting out the drug's qualities, ingredients and methods of manufacture and purification. The respondent, Apotex, after filing a NDS in respect of its generic drug Apo-Enalapril, sought an order of mandamus to compel the Minister to issue a notice of compliance with respect to that drug. Apotex's NDS was incomplete when it filed its mandamus application; nevertheless, by February 3, 1993, the new drug met all of the scientific safety and efficacy conditions required for a NOC to issue. Although the NDS had cleared the scientific and regulatory review process, the Department's ADM and DM decided to seek legal advice regarding the authority of the Minister or his ADM to issue the NOC in view of the impending passage of Bill C-91. The appellant, Merck, also forwarded a number of legal opinions to the Minister and then sought prohibition to prevent the Minister from issuing the notice of compliance. The Trial Judge ruled that the Minister did not possess the broad discretion to justify his refusal to issue the NOC and that the delay in issuing it was not warranted. He also rejected the argument that to issue mandamus when a new regulatory regime was pending would "frustrate the will of Parliament". This appeal raised a number of issues, namely: 1) the principles governing mandamus and the question of prematurity; 2) whether Apotex had a vested right to a NOC by March 12, 1993; 3) the balance of convenience; 4) whether Apotex's vested right to a NOC was divested by Bill C-91 and the Patented Medicines Regulations and 5) the jurisdiction of the Court. By cross-appeal, the Minister argued that the Trial Judge erred in finding the delay in issuing the NOC to be unwarranted.Held, the appeal and cross-appeal should be dismissed.

1) Several principal requirements must be satisfied before mandamus will issue. First, there must be a public legal duty to act owed to the applicant. Generally, mandamus cannot issue with respect to a duty owed to the Crown. The Minister had a duty to act which was owed to Apotex. Merck's submission, that the Minister owed no duty to Apotex at the time it commenced its judicial review application on December 22, 1992 or on the hearing date, was partly correct. An order of mandamus will not lie to compel an officer to act in a specified manner if he is under no obligation to act as of the hearing date, but that rule was not valid if applied as of the date that the application for mandamus was filed. While it is open to a respondent to pursue dismissal of an application where the duty to perform has yet to arise, in the absence of compelling reasons, an application for mandamus should not be defeated on the ground that it was initiated prematurely. Provided that the conditions precedent to the exercise of the duty have been satisfied at the time of the hearing, the application should be assessed on its merits.

2) If a decision-maker has an unfettered discretion which he has not exercised as of the date a new law takes effect, the applicant cannot successfully assert either a vested right or even the right to have the decision-maker render a decision. A "vested right" must be distinguished from a "mere hope or expectation". The scope of a decision-maker's discretion is directly contingent upon the characterization of various considerations as "relevant or irrelevant" to its exercise. The Food and Drug Regulations restrict the factors to be considered by the Minister in the proper exercise of his discretion to those concerning a drug's safety and efficacy. They neither expressly nor implicitly contemplate the broad scope of ministerial discretion advocated by Merck. It cannot be said that the time needed to enable a decision-maker to seek and obtain legal advice in any decision-making process is of itself a basis for denying mandamus. That self-imposed obligation cannot of itself deprive Apotex of its right to mandamus. In the absence of intervening legislation, the "legal advice" issue would not have arisen. The legal advice sought herein had no bearing on the exercise of the Minister's narrowly circumscribed discretion. Moreover, to deny mandamus because of legal concerns generated by a party adverse in interest (Merck) would be to judicially condone what might be regarded as a tactical manoeuvre intended to obfuscate and delay the decision-making process. Pending legislative policy was not a consideration relevant to the exercise of the Minister's discretion. It could not be said that, in the exercise of his statutory power under the Food and Drug Regulations, the Minister was entitled to have regard to the provisions of Bill C-91 after enactment but prior to proclamation. Apotex had a vested right to the NOC notwithstanding the Minister's failure to render a decision by March 12, 1993.

3) The case law on mandamus reveals a number of techniques resorted to by courts in balancing competing interests. Any inclination to engage in a balancing of interests must be measured strictly against the rule of law. Having regard to the relevant jurisprudence, it had to be concluded that this Court possesses discretion to refuse mandamus on the ground of balance of convenience. The cases demonstrate three factual patterns in which the balance of convenience test has been implicitly acknowledged. First, there are those cases where the administrative cost or chaos that would result from granting such relief is obvious and unacceptable. The second ground for denying mandamus appears to arise in instances where potential public health and safety risks are perceived to outweigh an individual's right to pursue personal or economic interests. In this case, there was no issue with respect to administrative chaos or public health and safety. The third line of authority attempts to establish a principle by which it can be determined whether a property owner has acquired a vested right to a building permit pending approval of a

by-law amendment. That principle is of no relevance to this case nor to the issue of the Court's discretion to refuse mandamus on the ground of balance of convenience. There was no legal basis upon which the "balance of convenience" test could be applied to deny Apotex the relief sought.

4) The Patented Medicines Regulations prohibit the issuance of NOCs in respect of "patent-linked" drugs. Subsections 5(1) and (2) thereof refer to NDSs filed before March 12, 1993. While NOCs and patent rights are linked, they have never been mutually dependent. Practically speaking, Merck is seeking an interlocutory injunction against Apotex with respect to possible patent infringement without having to satisfy the conditions precedent imposed at law to the granting of such relief. An order in the nature of mandamus cannot be viewed as an instrument which "facilitates" patent infringement. The Patented Medicines Regulations are not procedural regulations per se. The imposition of a criterion that a NOC cannot issue with respect to a patent-linked NDS is clearly a substantive change in the law and hence subject to the rules of statutory construction applicable to legislation purporting to affect vested rights. Subsections 5(1) and (2) do not manifestly seek to divest persons of acquired rights; they are at best ambiguous. While Parliament has the authority to pass retroactive legislation, thereby divesting persons of an acquired right, vested rights could not be divested by the Patented Medicines Regulations unless the enabling legislation, that is the Patent Act or Bill C-91, implicitly or explicitly authorize such encroachments. Bill C-91 contains no provision specifically authorizing regulations to interfere with existing or vested rights except as to compulsory licences granted after December 20, 1991.

5) The jurisdiction of this Court was not "ousted" by the paramountcy provision in Bill C-91. Subsection 55.2(5) of the Patent Act could not be said to be paramount to section 18 of the Federal Court Act and could not be construed as a privative clause insulating the Minister and the relevant legislation from judicial review.

Canada v. Telezone (SCC, 2010)

In 1995, Industry Canada issued a call for personal communication services licence applications, and released the policy statement within which potential service providers could shape their applications.  The statement provided that Industry Canada would grant up to six licences on the basis of criteria it set out.  T submitted an application, but when Industry Canada announced its decision, there were only four successful applicants and T was not among them.  T filed an action against the Federal Crown in the Ontario Superior Court of Justice for breach of contract, negligence and unjust enrichment, and sought compensation for claimed losses of $250 million.  It claimed that it was an express or implied term of the policy statement that Industry Canada would only issue fewer than six licences if fewer than six applications met the criteria.  Since its application satisfied all the criteria, it says, Industry Canada must have considered other undisclosed factors when it rejected T’s application.  The Attorney General of Canada, relying on Canada v. Grenier, 2005 FCA 348, [2006] 2 F.C.R. 287, challenged the jurisdiction of the Superior Court on the ground that the claim constituted a collateral attack on the decision, which is barred by the grant to the Federal Court, by s.   18   of the Federal Courts Act   , of exclusive judicial review jurisdiction in relation to decisions of all federal boards, commissions or other tribunals.  The Superior Court dismissed the objection on the ground that it was not plain and

obvious that the claim would fail.  The Court of Appeal upheld the decision, holding that Grenier was wrongly decided. In that court’s view s.   17   of the Federal Courts Act   and s.   21   of the Crown Liability and Proceedings Act   conferred concurrent jurisdiction on the superior courts and the Federal Court for claims against the Crown, and s.   18   of the Federal Courts Act   did not remove relief by way of an award of damages from the jurisdiction of superior courts.                     Held:  The appeal should be dismissed.                     This appeal is fundamentally about access to justice. People who claim to be injured by government action should have whatever redress the legal system permits through procedures that minimize unnecessary costs and complexity.  The Court’s approach should be practical and pragmatic with that objective in mind.  Acceptance of Grenier would tend to undermine the effectiveness of the Federal Courts Act   reforms of the early 1990s by retaining in the Federal Court exclusive jurisdiction over a key element of many causes of action proceeding in the provincial courts despite Parliament’s promise to give plaintiffs a choice of forum and to make provincial superior courts available to litigants “in all cases in which relief is claimed against the [federal] Crown” except as otherwise provided.                     Apart from constitutional limitations, none of which are relevant here, Parliament may by statute transfer jurisdiction from the superior courts to other adjudicative bodies including the Federal Court.  However, any derogation from the jurisdiction of the provincial superior courts (in favour of the Federal Court or otherwise) requires clear and explicit statutory language.  Nothing in the Federal Courts Act   satisfies this test.  The explicit grant to the provincial superior courts of concurrent jurisdiction in claims against the Crown in s. 17 of that Act (as well as s.   21   of the Crown Liability and Proceedings Act   ) directly refutes the Attorney General’s argument.  The grant of exclusive jurisdiction to judicially review federal decision makers in s.   18   is best understood as a reservation or subtraction from the more comprehensive grant of concurrent jurisdiction in s.   17   “in all cases in which relief is claimed against the [federal] Crown”.  This reservation or subtraction is expressed in s.   18   of the Federal Courts Act   in terms of particular remedies.  All the remedies listed are traditional administrative law remedies and do not include awards of damages.  If a claimant seeks compensation, he or she cannot get it on judicial review, but must file an action.                     The Federal Courts Act   contains other internal evidence that Parliament could not have intended judicial review to have the gatekeeper function envisaged by Grenier.  Section   18.1(2)   imposes a 30-day limitation for judicial review applications.  A 30-day cut off for a damages claimant would be unrealistic, as the facts necessary to ground a civil cause of action may not emerge until after 30 days have passed, and the claimant may not be in a position to apply for judicial review within the limitation period.  While the 30-day limit can be extended, the extension is discretionary and would subordinate the fate of a civil suit brought in a superior court to the discretion of a Federal Court judge ruling upon a request for an extension of time for reasons that have to do with public law concerns, not civil damages.  Moreover, the grant of judicial review is itself discretionary and may be denied even if the applicant establishes valid grounds for the court’s intervention.  This does not align well with the paradigm of a common law action for damages where, if the elements of the claim are established, compensation ought generally to follow as a matter of course.  Further, s.   8   of the Crown Liability and Proceedings

Act   , which codifies the defence of statutory authority, is evidence that Parliament envisaged that the lawfulness of administrative decisions could be assessed by the provincial superior court in the course of adjudicating a claim for damages.                     The Grenier approach cannot be justified by the rule against collateral attacks.  T’s claim is not an attempt to invalidate or render inoperative the Minister’s decision; rather, the decision and the financial losses allegedly consequent to it constitute the very foundation of the damages claim.  In any event, given the statutory grant of concurrent jurisdiction in s.   17   of the Federal Courts Act   , Parliament has stated that provincial superior courts possess the concurrent necessary jurisdiction to dispose of the whole of a claim and this includes any attack on the validity of the Minister’s decision where this issue is essential to the cause of action and where adjudicating the matter is a necessary step in disposing of the claim.  While the doctrine of collateral attack may be raised by the Crown in the provincial superior court as a defence, the possible availability of the defence is not an argument against provincial superior court jurisdiction.  Similarly, while it may be open to the Crown, by way of defence, to argue that the government decision maker was acting under statutory authority which precludes compensation for consequent losses, this is not a matter of jurisdiction and can be dealt with as well by the provincial superior court as by the Federal Court.                      It is true that the provincial superior courts and the Federal Court have a residual discretion to stay a damages claim if, in its essential character, it is a claim for judicial review with only a thin pretence to a private wrong.  However, where a plaintiff’s pleading alleges the elements of a private cause of action, the provincial superior court should not in general decline jurisdiction on the basis that the claim looks like a case that could be pursued on judicial review.  If the plaintiff has pleaded a valid cause of action for damages, he or she should generally be allowed to pursue it.                     Here, T’s claim as pleaded is dominated by private law considerations. It is not attempting to nullify or set aside the decision to issue licences.  Nor does it seek to deprive the decision of any legal effect.  T’s causes of action in contract, tort and equity are predicated on the finality of that decision excluding it from participation in the telecommunications market.  The Ontario Superior Court of Justice has jurisdiction over the parties and the subject matter, and has the power to grant the remedy of damages.  There is nothing in the Federal Courts Act   to prevent the Ontario Superior Court from adjudicating T’s claim.

Reece v. City of Edmonton (Alta. C.A., 2012)

NO HEADNOTE

Harelkin v. University of Sask. (SCC, 1976)

The appellant, a student in the School of Social Work, Saskatoon Faculty, University of Regina, was required by university authorities to discontinue his studies. The University Act provided an appeal to a committee of the university council, obligated to "hear and decide". The committee

heard one side—the university—and decided adversely to the student, all in the absence of the student. The student did not know what was placed against him in the committee nor was he afforded an opportunity to correct or contradict any statement pre-judicial to his position. Some months later, following an exchange of correspondence between appellant's counsel and the university authorities, in which a rehearing was requested and refused, certiorari and mandamus proceedings were launched. It was contented on the part of the university that the student was not damnified because he had a further appeal to a committee of the senate of the university also charged with the duty, on appeal, to "hear and decide". The trial judge rejected the contentions of the university and granted certiorari quashing the order of the council committee. He directed the university to hold a hearing, pursuant to s. 78(1)(c) of The University of Regina Act, 1974, and to allow the applicant to be present, to be heard, to present evidence and to be represented by counsel, with respect to the refusal of the School of Social Work to allow him to pursue further studies. The Court of Appeal for Saskatchewan reversed, holding that, where there is a right of appeal certiorari should not be granted except under special circumstances and no special circumstances were established. From this decision the student appealed to this Court.

Held (Spence, Dickson and Estey B. dissenting): The appeal should be dismissed.

Per Martland, Pigeon, Beetz and Pratte JJ.: The contentions made against the judgment of the Court of Appeal could be summarized in four main propositions: (I) failure by the council committee to respect the principle audi alteram partem was akin to a jurisdictional error and the writs should issue ex debito justitiae; (2) the decision of the council committee was an absolute nullity from which there could be no appeal to the senate committee; (3) even if there could be an appeal to the senate committee, appellant's right of appeal was not an adequate alternative remedy; (4) the principle audi alteram partem had in this case been given statutory force and the Courts should exercise their discretion with a view to enforcing the statute.

1. Failure to respect the principle audi alteram partem and issuance of the writs ex debito justitiae,The use of the expression ex debito justitiae in conjunction with the discretionary remedies of certiorari and mandamus is unfortunate. It is based on a contradiction and imports a great deal of confusion into the law. A writ cannot at once be a writ of grace and a writ of right. To say in a case that the writ should issue ex debito justitiae simply means that the circumstances militate strongly in favour of the issuance of the writ rather than for refusal. But the expression, albeit Latin, has no magic virtue and cannot change a writ of grace into a writ of right nor destroy the discretion even in cases involving lack of jurisdiction. A fortiori does the discretion remain in cases not of lack of jurisdiction, but of excess or abuse of jurisdiction such as those involving a breach of natural justice.

2. Whether the decision of the council committee was a nullity from which there could be no appeal.There was no want of jurisdiction in the committee of the council to hear and decide upon appellant's application or memorial. In the exercise of this jurisdiction, the committee erred in failing to observe the rules of natural justice. While it could be said in a manner of speaking that such an error was "akin" to a jurisdictional error, it did not entail the same type of nullity as if there had been a lack of jurisdiction in the committee. It simply rendered the decision of the

committee voidable at the instance of the aggrieved party and the decision remained appealable until quashed by a superior court or set aside by the senate.To hold otherwise would produce undesirable practical effects. For instance, an aggrieved student who had less time than appellant and who cared more about the expenditure could not appeal directly to the senate; he would have to seek relief from the courts, go back before the committee of the council, and from there to the senate, if need be. A purely conceptual view of absolute nullity which would, in this type of case, cause such inconvenient and impractical results could not be theoretically sound.

Alternatively, the motion that was passed by the council committee to review the action taken by the Faculty of Social Work in evaluating appellant's academic performance could be said to be a "decision" within the meaning of s. 33(1)(e) of the Act. It was a motion whereby the council committee "decided upon, subject to an appeal to the senate, an application or memorial by a student in connection with any faculty of the university" within the meaning of s. 78(1)(c) of the Act. The council committee in effect decided that appellant's application or memorial was without merit and implicitly dismissed it. Even though this decision was arrived at in defiance of natural justice, it nonetheless remained a "decision" disposing of appellant's case and was "subject to an appeal to the senate" pursuant to s. 78(1)(c).Furthermore, and even if it could be said that the decision of the council committee was a nullity, it was still appealable to the senate committee for the simple reason that the senate committee was given by statute the power to hear and decide upon appeals from the decisions of the council, whether or not such decisions were null.

3. Whether appellant's right of appeal to the senate committee was an adequate alternative remedy—The balance of convenience.The trial judge erred in holding that there was nothing in the appeal procedure whereby the senate was required "to hear" the appellant. First, it was clear that the senate was required to hear appellant, as was council since the same wording "to hear and decide" is found both in s. 33(1)(e) and in s. 78(1)(c); having rightly decided upon the basis of that wording, that the council was required to hear appellant, the trial judge could not, without contradicting and misdirecting himself, hold that there was nothing in the appeal procedure whereby the senate was required to hear appellant. Second, in declining to evaluate, difficult as it may have been, whether or not the failure to render natural justice could be cured in the appeal, the trial judge refused to take into consideration a major element for the determinationof the case, thereby failing to exercise his discretion on relevant grounds and giving no choice to the Court of Appeal but to intervene.In order to evaluate whether appellant's right of appeal to the senate committee constituted an adequate alternative remedy and even a better remedy than a recourse to the courts by way of prerogative writs, several factors should have been taken into consideration among which the procedure on the appeal, the composition of the senate committee, its powers and the manner in which they were probably to be exercised by a body which was not a professional court of appeal and was not bound to act exactly as one nor likely to do so. Other relevant factors included the burden of a previous finding, expeditiousness and costs. A consideration of all the factors led to the conclusion that appellant's right of appeal to the senate committee did provide him with an adequate alternative remedy. In addition this remedy was a more convenient remedy for appellant as well as for the university in terms of costs and expeditiousness. Also, the council

committee's refusal to grant a rehearing to appellant was not a sufficient reason for issuing certiorari and mandamus.

4. Statutory force of the rule audi alteram partemThe submission that in a case such as the present, where the duty of the council committee to hear appellant was imposed by statute, the courts should not decline to enforce the statute but ought to exercise their discretion, if any, so as to uphold it was not accepted. Sections 78(1)(c) and 33(1)(e) are inspired by the general intent of the Legislature that intestine grievances preferably be resolved internally by the means provided in the Act, the university thus being given the chance to correct its own errors, consonantly with the traditional autonomy of universities as well as with expeditiousness and low cost for the public and the members of the university. While of course not amounting to privative clauses, provisions like ss. 55, 66, 33(1)(e) and 78(1)(c) are a clear signal to the courts that they should use restraint and be slow to intervene in university affairs by means of discretionary writs whenever it is still possible for the university to correct its errors with its own institutional means. In using restraint, the courts do not refuse to enforce statutory duties imposed upon the governing bodies of the university. They simply exercise their discretion in such a way as to implement the general intent of the Legislature.

Figliola v. B.C. Human Rights Tribunal (SCC, 2012)

The complainant workers suffered from chronic pain and sought compensation from British Columbia’s Workers’ Compensation Board.  Pursuant to the Board’s chronic pain policy, they received a fixed compensation award.  They appealed to the Board’s Review Division, arguing that a policy which set a fixed award for chronic pain was patently unreasonable, unconstitutional and discriminatory on the grounds of disability under s. 8 of the British Columbia Human Rights Code (“Code”).  The Review Officer accepted that he had jurisdiction over the Human Rights Code complaint and concluded that the Board’s chronic pain policy was not contrary to s. 8 of the Code and therefore not discriminatory.                      The complainants appealed this decision to the Workers’ Compensation Appeal Tribunal (“WCAT”).  Before the appeal was heard, the legislation was amended removing WCAT’s authority to apply the Code.  Based on the amendments, the complainants’ appeal of the Review Officer’s human rights conclusions could not be heard by WCAT, but judicial review remained available.  Instead of applying for judicial review, the complainants filed new complaints with the Human Rights Tribunal, repeating the same s. 8 arguments about the Board’s chronic pain policy that they had made before the Review Division.                     The Workers’ Compensation Board brought a motion asking the Tribunal to dismiss the new complaints, arguing that under s. 27(1)(a) of the Code, the Tribunal had no jurisdiction, and that under s. 27(1)(f) of the Code, the complaints had already been “appropriately dealt with” by the Review Division.  The Tribunal rejected both arguments and found that the issue raised was an appropriate question for the Tribunal to consider and that the parties to the complaints should receive the benefit of a full Tribunal hearing.  On judicial review, the Tribunal’s decision was set aside.  The Court of Appeal, however, concluded that the Tribunal’s decision was not patently unreasonable and restored its decision.

                    Held:  The appeal should be allowed, the Tribunal’s decision set aside and the complaints dismissed.                    Per LeBel, Deschamps, Abella, Charron and Rothstein JJ.: Section 27(1)(f) of the Code is the statutory reflection of the collective principles underlying the doctrines of  issue estoppel, collateral attack and abuse of process — doctrines used by the common law as vehicles to transport and deliver to the litigation process principles of finality, the avoidance of multiplicity of proceedings, and protection for the integrity of the administration of justice, all in the name of fairness.                      Read as a whole, s. 27(1)(f) does not codify these actual doctrines or their technical explications, it embraces their underlying principles.  As a result, the Tribunal should be guided less by precise doctrinal catechisms and more by the goals of the fairness of finality in decision-making and the avoidance of the relitigation of issues already decided by a decision-maker with the authority to resolve them.  Relying on these principles will lead the Tribunal to ask itself whether there was concurrent jurisdiction to decide the issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself.  All of these questions go to determining whether the substance of a complaint has been “appropriately dealt with” under s. 27(1)(f).  The Tribunal’s strict adherence to the application of issue estoppel was an overly formalistic interpretation of s. 27(1)(f), particularly of the phrase “appropriately dealt with”, and had the effect of obstructing rather than implementing the goal of avoiding unnecessary relitigation.                      Section 27(1)(f) does not represent a statutory invitation either to judicially review another tribunal’s decision, or to reconsider a legitimately decided issue in order to explore whether it might yield a different outcome.  The section is oriented instead towards creating territorial respect among neighbouring tribunals, including respect for their right to have their own vertical lines of review protected from lateral adjudicative poaching.  When an adjudicative body decides an issue within its jurisdiction, it and the parties who participated in the process are entitled to assume that, subject to appellate or judicial review, its decision will not only be final, it will be treated as such by other adjudicative bodies.                      The discretion in s. 27(1)(f) was intended to be limited.  This is based not only on the language of s. 27(1)(f) and the legislative history, but also on the character of the other six categories of complaints in s. 27(1), all of which refer to circumstances that make hearing the complaint presumptively unwarranted, such as complaints that are not within the Tribunal’s jurisdiction, allege acts or omissions that do not contravene the Code, have no reasonable prospect of success, would not be of any benefit to the complainant or further the purposes of the Code, or are made for improper motives or bad faith.                      What the complainants in this case were trying to do is relitigate in a different forum.  Rather than challenging the Review Officer’s decision through the available review route of judicial review, they started fresh proceedings before a different tribunal in search of a more favourable result.  This strategy represented a “collateral appeal” to the Tribunal, the very trajectory that s. 27(1)(f) and the common law doctrines were designed to prevent.  The Tribunal’s analysis made it complicit in this attempt to collaterally appeal the merits of the Board’s decision and decision-making process.  Its analysis represents a litany of factors having to do with whether it was comfortable with the process and merits of the Review Officer’s

decision:  it questioned whether the Review Division’s process met the necessary procedural requirements; it criticized the Review Officer for the way he interpreted his human rights mandate; it held that the decision of the Review Officer was not final; it concluded that the parties were not the same before the Workers’ Compensation Board as they were before the Tribunal; and it suggested that Review Officers lacked expertise in interpreting or applying the Code.                     The standard of review designated under s. 59 of the Administrative Tribunals Act is patent unreasonableness.  Because the Tribunal based its decision to proceed with these complaints and have them relitigated on predominantly irrelevant factors and ignored its true mandate under s. 27(1)(f), its decision is patently unreasonable.                      Per McLachlin C.J. and Binnie, Fish and Cromwell JJ.: Both the common law and in particular s. 27(1)(f) of the Code are intended to achieve the necessary balance between finality and fairness through the exercise of discretion.  It is this balance which is at the heart of both the common law finality doctrines and the legislative intent in enacting s. 27(1)(f).  A narrow interpretation of the Tribunal’s discretion under s. 27(1)(f) does not reflect the clear legislative intent in enacting the provision.  Rather, s. 27(1)(f) confers, in very broad language, a flexible discretion on the Human Rights Tribunal to enable it to achieve that balance in the multitude of contexts in which another tribunal may have dealt with a point of human rights law.                    The grammatical and ordinary meaning of the words of s. 27(1)(f) support an expansive view of the discretion, not a narrow one.  Nor can it be suggested that s. 27(1)(f) be read narrowly because of the character of the other six categories of discretion conferred by s. 27(1).  The provision’s legislative history also confirms that it was the Legislature’s intent to confer a broad discretion to dismiss or not to dismiss where there had been an earlier proceeding.  The intent was clearly to broaden, not to narrow, the range of factors which a tribunal could consider.                      The Court’s jurisprudence recognizes that, in the administrative law context, common law finality doctrines must be applied flexibly to maintain the necessary balance between finality and fairness.  This is done through the exercise of discretion taking into account a wide variety of factors which are sensitive to the particular administrative law context in which the case arises and to the demands of substantial justice in the particular circumstances of each case.  Finality and requiring parties to use the most appropriate mechanisms for review are of course important considerations.  But they are not the only, or even the most important considerations.  The need for this necessarily broader discretion in applying the finality doctrines in the administrative law setting is well illustrated by the intricate and changing procedural context in which the complainants found themselves in this case and underlines the wisdom of applying finality doctrines with considerable flexibility in the administrative law setting.  The most important consideration is whether giving the earlier proceeding final and binding effect will work an injustice.  If there is substantial injustice, or a serious risk of it, poor procedural choices by the complainant should generally not be fatal to an appropriate consideration of his or her complaint on its merits.                    In this case, the Tribunal’s decision not to dismiss the complaint under s. 27(1)(f) was patently unreasonable.  While the Tribunal was entitled to take into account the alleged procedural limitations of the proceedings before the Review Officer, it committed a reversible error by basing its decision on the alleged lack of independence of the Review Officer and by ignoring the potential availability of judicial review to remedy any procedural defects.  More fundamentally, it failed to consider whether the substance of the complaint had been addressed

and thereby failed to take this threshold statutory requirement into account.  This requires looking at such factors as the issues raised in the earlier proceedings; whether those proceedings were fair; whether the complainant had been adequately represented; whether the applicable human rights principles had been canvassed; whether an appropriate remedy had been available and whether the complainant chose the forum for the earlier proceedings.  This flexible and global assessment seems to be exactly the sort of approach called for by s. 27(1)(f).  The Tribunal also failed to have regard to the fundamental fairness or otherwise of the earlier proceeding.  All of this led the Tribunal to give no weight at all to the interests of finality and to largely focus instead on irrelevant considerations of whether the strict elements of issue estoppel were present.                    The appeal should be allowed and the application of the Workers’ Compensation Board under s. 27(1)(f) should be remitted to the Tribunal for reconsideration.