Admin Law- CraneFall 2013Cassidy Thomson

Part I: Introduction

Scope of the Administrative State

Administrative Law is…1. a branch of public law

o Concerned with relations between the subject and the Stateo Seeks to regulate/control “government action” that affects individuals, groups, and corporations

2. concerned with general principles of law that can be applied to a wide-range of government decision-making in highly variable and context-specific ways

o Administrative law can arise in connection with the administration of any public program3. not concerned with the substantive law pertaining to particular subject matters

o i.e. environmental law, labour law, securities law…4. Judge-made law

o Mostly common-law, rules and principles are made by judges rather than legislatures

General Purposes of Administrative Law:The major and sometimes conflicting concerns of administrative law include:

1. To control governmental power as exercised by the executive and administrative branches of the state o to confine gov’t power to its proper scopeo to curb potential for abuses of powero to ensure proper procedures are followed in the exercise of powers that affect the rights/interests of

citizenso to ensure performance of mandatory statutory duties

2. To foster accountability in the administrative and executive branches of government and greater participation by interested parties in the decision-making processes of government that affect them

o very much a public law areao rights of citizen against the stateo democratic aspect – participatory rights to citizens (to a certain degree, in certain contexts)

3. To ensure that the administrative branch of government effectively performs the tasks assigned to it by the legislature

Administrative Law v. Constitutional Law

Distinguished Intersections- admin law is not usually concerned with

the validity or vires of statutes- Admin law is primarily concerned with

exercises of power by governmental officials and agencies that are made under statutory authority

I.e. admin law is mostly concerned with exercises of powers that have been delegated by the legislature to government officials and agencies through statutes

- Both are types of public law- Administrative law is rooted in fundamental constitutional

principles such as:o The rule of law

Dicey’s notion of the rule of law; control of governmental powers; idea that no one is above the law – means that regardless of who you are and how much power you have you are subject to the law (includes gov’t and gov’t actors)

o Legislative supremacy/Parliamentary sovereignty SUBJECT to the constitutional division of powers

(control of the exercise of statutory powers)

- More rarely, admin law is also concerned with certain of the powers that may be exercised by government under Crown prerogative

and the Chartero Separation of Powers

Appropriate roles of the different branches of government is very important, when should the Courts interfere?

o The constitutionally protected and inherent jurisdiction of s. 96 superior courts and the principles of judicial independence

These kinds of principles are where the authority of the courts to intervene comes from

- There is also a growing intersection between Constitutional and Administrative law:

o S.7 of the Charter has become a relevant focus of study in administrative law in relation to the guarantees of procedural fairness that it provides in certain contexts

o Charter guarantee of fundamental justice, of which procedural fairness is one – goes beyond common law

o Life, liberty, and security of the person provides the real limitation – very narrowly interpreted by the courts

o Many admin tribunals now have jurisdiction to apply the Charter in their decision-making, see the ATA for example.

Who are Administrative Decision-Makers?

- Administrative law is primarily concerned with the actions/decisions of individual, bodies, or agencies that exercise powers under statutes (delegated decision-making authority)

- Examples include:o “Independent” administrative agencies – tribunals, boards, commissions (the amount of independence

will vary and is never total)o Cabinet (Governor in Council, Lieutenant Governors in Council) and individual Ministers of the Crowno Departmental officials o Professional associations exercising statutory powers of self-regulation (i.e. Law Society)o Municipal government agencies and officials, school boardso Public inquirieso The Legislatureo Crown Corporations

The Scope of Administrative Law & the Public/Private Dichotomy

The “boundaries” of Administrative Law are NOT always easy to define (sometimes “uncertain”):

- Private corporations that merely receive their existence by incorporation under general incorporation statutes do NOT exercise statutory powers in the sense that brings them within the ambit of administrative law.

- However, nominally private organizations that do exercise statutory powers (as a result of a delegation of power) ARE subject to administrative law (i.e. Ont’s Children’s Aid Societies)

- Bodies such as universities have sometimes in the past been treated as though they were private corporations rather than public bodies; however, now they are usually treated as decision-makers that ARE bound by admin law principles in much of what they do (e.g. in making decisions about the tenure and promotion of Faculty members or decisions about student discipline)

- Some of the principles of admin law are extended to so-called "domestic tribunals"

o “Private” bodies that do not exercise statutory powers but that do hold quasi-monopolistic powers in relation to the governance of certain spheres of public activity (e.g. sports associations, clubs, religious bodies)

- Not all actions of government are dealt with by the application of administrative law principles o For example, where the government acts in ways that are similar to the private sector, such as purchasing

goods or dealing with employees, the principles of contract law or tort law or employment and labour law may be more relevant and administrative law principles and remedies may not be applicable

The Wide Range of Administrative Agencies

The 20th century saw the rise of “the regulatory state” and a consequent growth in administrative agencies of various kinds engaged in the delivery of a wide variety of public programs under statutory authority such as:- Industry: power, transportation, marketing boards, telephone, food and drug- Land: fire, drains and sewers, zoning, pollution and environment, resources- Consumer protection and health services: food & drug, retail, financial institutions, human rights, public

health/drug plans- Employment and income support: labour, employment, safety, UI, CPP, human rights, welfare and housing- Economic regulators (general): competition, securities, tax- Trades and professions: professional associations, real estate, taxi drivers, street vendors- Social control: prisons, parole, psychiatric, immigration

The Wide Range of Administrative Decisions and Administrative Tools

Administrative agencies differ widely in the kinds of administrative tools they use to implement their mandates and in the kinds of decision-making they may be involved in:

- Some regulate relationships or resolve disputes between private persons on an individual case-by-case basis through adjudication much like courts (e.g. human rights agencies; labour relations arbitrators)

- Some give approvals/permits/licenses to individuals, groups, corporations, to allow them to do certain things (e.g. CRTC radio and T.V. licensing, liquor licensing, environmental impact assessments, zoning approvals)

- Some confer benefits on those who meet the statutory qualifications to receive them (e.g. social welfare benefits; workers comp; unemployment insurance)

- Some impose restrictions/penalties on individuals or grant relief from them (e.g. prison and parole decisions; conditions on licensing; professional disciplinary boards)

- Some are primarily involved in broad policy making as opposed to making decisions in individual cases [regulatory rule making]

- Some do not make final decisions but only investigate and report the products of the investigation, with or without making recommendations to another decision-maker who has the authority to decide the matter

MOST are involved in use of more than one kind of tool and may make various kinds of decisions – they are almost always multi-functional

Some other areas of difference include:- Can be more or less a judicial process- The amount of decisions made: ex thousands of decisions a year or just a couple- The seriousness of the impact on individuals- The expertise of the members and how they are appointed- The extent to which they make and apply policy- The extent to which they rely on staff support

What are “Independent” Administrative Agencies?

Common features of "independent" administrative agencies (boards, commissions, tribunals):- Absence of direct control by the executive: they enjoy some measure of "distance" and freedom from control by

the Cabinet, the responsible Minister, and departmental officials in making their decisions

- Hearing processes: they typically engage in some sort of formal hearing process before making a particular decision or policy (although the nature of these processes may vary widely from agency to agency

- Individualized decision-making: they typically make decisions in individual cases (i.e. they apply the provisions of a statutory scheme to the situation of particular individuals, corporations, or groups)

- Specialization: they operate within a particular statutory scheme and usually deal with only one statute or even with only a part of a statute (they deliver a particular public program or part of one) and members often have (or acquire by experience) subject-area expertise

- Independence of individual members in decision-making: members of the agency cannot be pressured by others, including other members of the agency or the Chair, in relation to how they decide individual cases

Why do Administrative Tribunals Exist?

Why might the legislature assign decision-making or policy development to an independent administrative agency rather than to a government department?

1. Legitimacy: there may be a need to "insulate" the decision-making or the policy development process from partisan politics and pressures in order to attain more legitimacy for the decisions made

where the decision "pits the government against the citizen" (b/c it concerns eligibility for a benefit or imposition of a liability), the credibility, legitimacy, and "acceptability" of the decisions made or policies developed may be enhanced if the matter is distanced from the bureaucracy

2. Better decisions: decisions reached may be better in quality b/c the administrative agency may be better able to Draw upon the expertise needed to make decisions Develop more open and participatory processes to hear those who are interested

3. Expediency: it is sometimes more convenient for gov’t to shed direct political responsibility for decision-making in sensitive policy areas

to avoid unfavourable publicity associated with the decision-making in question

Why might the legislature assign decision-making to an independent administrative agency rather than a court?

1. Policy laden subject-matter: the nature of decisions to be made may be deemed inappropriate for adjudication by a judge; multi-faceted policy laden matters are not well-suited to resolution through an adversarial judicial system

environmental impact assessments, setting utility rates; setting marketing quotas; licensing vendors Tribunals can be mandated to develop policy and to initiate public processes to do so

2. Expertise and specialization: the matter to be decided may be a matter that requires specialized expertise rather than the general legal expertise of a judge

3. Broader public participation is desired: the legislature may want the decision-maker to have input from a wide cross-section of the public before making a decision and courts are not well set up to deal with that kind of participation

4. Volume of decisions: the large number of decisions to be made would clog the courts e.g. appeals from social welfare denials or workers compensation claims

Cost is a relevant factor in this reason as well 5. Procedural and efficiency concerns: courts are formal, slow, expensive and require lawyers; a more informal,

more accessible, quicker and less expensive decision-making process may be desired note: the processes aren’t always as expedient as people expect them to be

6. Ideology: sometimes the perceived ideology of the judiciary may be thought to be an impediment to the legitimacy and effectiveness of the statutory scheme

Theoretical Underpinnings

The Rule of Law

- is a complex notion and there is contested meaning - is a general principle of constitutional law inherited from British constitutional law and referred to in the

Charter’s preamble - cannot, by itself, be used to challenge the validity of primary legislation (statutes) - was identified in Reference re Secession of Quebec (1998 SCC) as one of the four underlying principles of the

Canadian constitution These 4 principles are: federalism, democracy, constitutionalism and the rule of law, and the protection

of minorities- considered foundational to our legal system BUT is also broader than our Constitution (i.e. has a broader

application)- underlies much of administrative law and provides an important rationale for what courts do (i.e. courts act to

“vindicate the rule of law”)- is primarily used in administrative law in substantive judicial review- a malleable concept

The Rule of Law: Thick vs Thin

Thin A “thicker” thin Thick- The ROL is a formal and

primarily procedural concept- Basic principle is legality:

gov’t must conduct itself in accordance with the law

- Gov’t should take place through law and not discretion (ROL is antithetical to ad hoc or arbitrary behaviour by gov’t

- Law maker itself is subject to law, at least until the law is changed

- Relatively little or nothing to say about the substantive content

- This is what the courts generally ascribe to, again b/c the constitution and Charter provides protections substantively to citizens.

- Includes all the thin stuff plus:- Laws should be sufficiently

clear and public to enable individuals to “know where they stand” and choose their actions: laws should not be vague

- Temporal issues: laws should not be retroactive

- Laws should be general (not single out groups but apply to everyone)

- Laws should be relatively stable and consistent over time: capable of being obeyed.

- Includes all the thin stuff plus:- Positive law must be obeyed and

embody a particular vision of social justice

- expansive and substantive- encapsulates a liberal theory of

substantive justice- ROL as a particular vision of what

“justice” requires in a society in substance

- i.e. law should be “good”, moral content- ROL can be used to measure the

content of legislation from a policy perspective, i.e. some argue that laws that discriminate invidiously on racial grounds are contrary to the ROL per se

- Therefore, you should be able to use the ROL to measure any law and see if it meets the moral requirements

- But b/c we have a Charter, we don’t really need to go down this road and rely on the ROL in this way.

The Rule of Law: The TheoristsFuller

- The following criteria are pre-conditions for “good” law-making: publicity, non-retroactivity, clarity, generality, consistency, stability, capable of being obeyed, constrain admin law and discretion of public officials.

- Perspective is essentially procedural in nature—not substantive

- The preconditions should be respected in the creation of law so that citizens “know where they stand” in regard to what the law requires, meaning that they can plan their activities accordingly

- Result will be law that is more effective in government human conduct and more likely to be obeyedJoseph Raz

- Similar perspective to Fuller, many of the same principles- A key idea for him is that law must be capable of guiding the behaviour of those subject to it- Adds several preconditions for a system to be governed by ROL: judicial independence, access to justice and

effective legal remediesMary Liston

- Sees ROL as characterized by 3 interrelated features: (1) a jurisprudential principle of legality (2) institutional practices of imposing effective legal restraints on the exercise of public power within the three branches of government (3) a distinctive political morality shared by the Canadian political community

- It isn’t just about what the Court does to keep the gov’t in line, it’s also about what the gov’t itself does to ensure they abide by the ROL

- Citizens expect the state to act in a certain way, and if it doesn’t citizens should be prepared to take action to hold it to account

Therefore, it is important to clarify what is meant by the term ROL when it is used in any given context, and generally the “thin” version is used by the Courts.

Traditional Application of the Rule of Law

Basic (Traditional) Understandings of the Rule of Law (“Dicyean”)- There are 3 fundamental concepts, rooted in Dicey’s understanding of the rule of law, are relevant in thinking

about and understanding administrative law:o “Government acts only with lawful authority”

Principle of legality: there must be lawful authority for all state actions that interfere with the rights and liberty of citizens

“No one should be made to suffer except for a distinct breach of the law” There should be clear and knowable legal rules – broad discretionary power is therefore suspect

and dangerous for Dicey (might be used in an arbitrary or discriminatory manner and makes accountability difficult)

All power is legally limited; courts can determine the limits of government power and hence the lawfulness of government action

Example: Dunsmuir SCC 2008: “all exercises of public authority must find their source in law” and “judicial review is the means by which courts supervise those who exercise statutory powers to ensure that they do not overstep their legal authority” and “the function of judicial review is therefore to ensure the legality, reasonableness and fairness of the admin process”

o “No one is above the law” Governments and citizens alike are subject to the ordinary law of the land Example: Roncarelli v Duplessis SCC 1959: Attorney General of Quebec held to account for over-

stepping his legal authority when demanding a liquor licence of a JW be cancelled. o It is the role of the “ordinary courts of the land” to impose the law on government

Governments and citizens alike are subject to the ordinary law of the land as administered by the ordinary courts

There should be no separate court system with separate rules for administrative (public) law as there is, for example, in France

Courts are the “final arbiters” of what the law is (i.e. courts must have ultimate authority to determine what a statute means and where its boundaries lie)

Courts act as the citizen’s bulwark against arbitrary government and will protect the rights of citizens against the state

Example: Bloedel v.Simpson SCC 1995: “governance by the rule of law requires a judicial system that can ensure its orders are enforced and its process respected” (Lamer, CJ)

Canadian Jurisprudence Regarding the Rule of Law

Roncarelli v. Duplessis (1959, SCC)- The rule of law is a “fundamental postulate for our constitutional structure”

Manitoba Reference (1985, SCC)- This case concerned statutes in Manitoba which had been passed and enacted for decades without being

published in both French and English- The statutes were found to invalid as they violated the Constitution - BUT this left a huge legal vacuum in the province the SCC had to rely on a “rule of law” argument to declare

that the statutes were legally binding and in effect for as long as it took Manitoba to translate them

SCC finds that “Rule of Law means at least 2 things:(1) The law is supreme over officials of gov’t as well as private individuals and is therefore preclusive of the

influence of arbitrary power (supremacy of law over gov’t)(2) the rule of law requires the creation and maintenance of an actual order of positive laws (i.e. the existence of a

system of public order)

Imperial Tobacco (2005, SCC)- This case originally involved challenge by BC to tobacco companies for health costs based on a rule of law

argument- SCC makes it clear cannot use rule of law to overrule the legislature- The Court stated that the rule of law [apart of course from the role of Constitutional law] constrains primarily

executive and judicial branches...

The Court also held that the rule of law embraces 3 principles:(1) Rule of law means law is supreme over officials of govt... (Man Lang Ref)(2) Rule of law requires an actual order of positive laws... (Man Lang Ref)(3) Rule of law requires that the relationship between the individual and the state be regulated by law (Succession

Reference)(4) Requires judicial independence(5) Left open the possibility that the ROL may include additional principles

BC (Attorney General) v. Christie (2007, SCC)- General access to legal services is NOT an enforceable aspect of the ROL

Functionalist Critique of the Rule of Law

- A central concern of administrative law should be to promote the effective functioning of the modern state- Purposes of modern state should be fostered by law, not hindered. These purposes include:

o Regulation of private power in the public interesto Promotion of greater social and economic equality through the redistribution of income and benefits

- Courts have sometimes used administrative law principles (based on ideas about the rule of law) in a way that operates to uphold the status quo and curbs the interventionist state

o This thwarts the regulatory state in a way that is too restrictive - Courts should take a more restrained, limited, and “less interventionist” role in their oversight of administrative

action – concerns about the interventionist role of the courts recur in almost all subject areas – huge issue for our system of gov’t today

- Specific “Functionalist” Concerns

1. Guided by laissez faire ideology, courts have sometimes too zealously guarded “common law values” against state encroachment

E.g. courts may act in administrative law in order to protect private property rights and freedom of contract in the face of state regulation in a way that unduly inhibits the regulatory state and its redistributive aims and purposes)

2. Courts have imposed an adversarial adjudicative model on administrative decision-makers when it has not been appropriate to do so and this…

Interferes with the efficiency of the administrative system and Favours those who can afford to engage in litigation

3. Courts have sometimes failed to appreciate the need to infuse policy into statutory interpretation and to recognize that they do not hold a monopoly on how to interpret statutes in a way that is consistent with legislative intent and that will best achieve legislative purposes

- Example: Dunsmuir SCC 2008: Functionalist concerns are alive and well in the jurisprudence, as the Court is always trying to balance the ROL and Parliamentary Supremacy.

“Middle Road” between functionalism and the ROL- Ensure procedural openness and enhance accountability in public administration (e.g. by encouraging broader

public participation in D/M)- Protect the interests of the intended beneficiaries of an admin program (e.g. by closely scrutinizing Ds that

seems contrary to the interests of the intended beneficiaries)- Prevent admin agencies from subverting the clear meaning of an enabling statute (after making allowance for

agency expertise, linguistic ambiguity and legislative purpose

Exerting Control Over Government Power

Non-Judicial Mechanisms for Control of Government Powers

1. General Legislative Oversight and Politics: Scrutiny of legislation before enactment Review of regulations by standing committees Scrutiny of appointments to agencies Annual or special reports to Parl by agencies Questions to Minister in the legislature Elections and electoral politics

2. Ombudsman, Access to Information Legislation: OM has power to receive complaints from citizens – can investigate and make reports BUT do NOT have

binding authority Access to information legislation can expose secrets

3. Informal Internal Control Mechanisms: Day to day management and accounting policies and procedures (a government’s general “culture” and

the role of government lawyers is an important factor in control) E.g. AG has separate role to play as a Minister Internal reviews of operations and policies Internal reviews and reconsideration of individual decisions

4. Formal Non-Judicial Appeal Mechanisms: Formal internal appeal mechanisms i.e. statutory appeals to other administrative bodies or to the

Minister, or to Cabinet

Judicial Mechanisms for Control of Administrative Actions

There are 3 ways courts get involved in administrative matters:

1. Appeals Appeals to a court from an administrative decision may be provided for by statute [for there to be any

appeal rights, there MUST be a statutory provision creating the appeal/setting out parameters] No inherent right to appeal – for there to be a right to appeal, there MUST be a statute Statutes state grounds the court has authorization to review on appeal

2. The “Judicial Review” Jurisdiction of the Courts The superior courts in the provinces exercise a power to engage in judicial review of administrative

action that is, in its origins, a common law power exercised as a matter of the superior courts’ inherent supervisory jurisdiction over “inferior tribunals”

Since this is an inherent power, it does not come from a statute This power exists regardless of what the statute says, but may be limited by statute to only procedural

fairness issues due to a privative clause protecting the substantive decisions from review This jurisdiction (for procedural fairness) is constitutionally protected as part of the inherent powers of

superior courts under s.96 of the C.A. 1867 (Crevier, SCC, 1981) In the federal realm, this kind of jurisdiction is exercised by the Federal Court operating under the

powers granted to it in the Federal Courts Act This is similar to the inherent power that superior courts exert

3. The “Original Jurisdiction" of the Courts: Sometimes an administrative action may amount to a tort or a breach of contract or a trespass to

property (etc.) or a Charter breach; if so, the matter can be brought before the courts in an “ordinary” court action

I.e. Cooper case

Primary Grounds for Judicial Review

1. Procedural Impropriety - Judicial review of the manner in which statutory powers of decision are exercised and by whom they have been exercised:

Breach of procedural fairness obligations Breach of the “rule against bias” Lack of the requisite degree of independence Improperly constituted or authorized d/maker

2. "Substantive" Illegality and Irrationality - Review of the substantive adequacy of the factual and legal basis of decisions made under statutory authority (review of “the merits” of the decision). Grounds for review, depending on the circumstances, include:

Errors made in interpreting the scope and meaning of the statutory powers (errors in interpreting the enabling legislation which may be characterized as errors of law or jurisdiction)

Note: All errors of jurisdiction are also errors of law. BUT NOT all errors of law are jurisdictional. Reviewable errors of fact (i.e. deciding without a sufficient evidentiary basis) Abuse of discretionary powers (unreasonable or unauthorized exercises of discretion)

3. Other Principle Grounds of Judicial Review in Contemporary Law Unreasonableness – Administrators have a legal duty not ot exercise their powers unreasonably Unconstitutionality - Unconstitutional exercises of power (breach of division of powers or Charter

violations) [these are governed by Constitutional Law]

The Constitutional Basis for Judicial ReviewCrevier v Quebec (SCC 1981)

RULE: The judicature provisions of C.A. 1867 (ss.96-101) implicitly guarantee the power of superior courts to conduct judicial review of provincial administrative action on judicial grounds

RULE: A provincially constituted tribunal cannot constitutionally be immunized from JR on questions of jurisdiction. (Can exclude the Courts for substantive review)

o “errors of jurisdiction” remain unclear, but are said to be different from “mere” errors of lawo Apparently they include: breaches of PF and making certain kinds of substantive errors

RULE: A privative clause that attempts to do this will be invalid and ineffective – in practice it will be “read down” so as to preserve the power of the superior courts to review tribunal decisions for “errors of jurisdiction”

Facts:o Quebec legislation (the Professional Code) created the Professions Tribunal (the PT) and gave it exclusive

appellate jurisdiction over decisions made by the discipline committees of most self-governing professions in Que. (this was the sole function of the PT)

o The PT members were 6 PCJs appted by Queo The statute contained a privative clause – s. 194 purported to bar all evocation [judicial review] proceedings

(privative clauses are inserted in legislation to restrict or prohibit JR – full PC are completely restrictive)Issues:

1. Does the PT contravene s. 96 b/c the PT exercises powers that ought properly to belong exclusively to a s. 96 court? (Note: this is the Residential Tenancies Act type of question)

HELD: YES the PT has no function other than being a general and exclusive tribunal of appeal and this means it operates like a s.96 court and contravenes s. 96

2. Is the s. 194 privative clause constitutionally valid? – Can provincial legislation create an admin tribunal and then immunize it from all JR by superior courts, thus making the decisions of the Tribunal final and beyond judicial review?

i. HELD: NO s. 194 is not valid – a province cannot constitutionally do this ii. Chief Justice Laskin appeared to say the key problem is that such a tribunal would be capable of

determining its own jurisdiction and that is something only superior courts can doOutcome/Effect:

- Judicial supremacy over provincial admin tribunals is constitutionally enshrined by the judicature provisions

- It is part of the “core jurisdiction” of s. 96 courts to review the decisions of administrative tribunals for “jurisdictional errors” and this jurisdiction cannot be taken away

i. The meaning of “jurisdictional” error is malleable and is capable of expansion by the courts ii. For this purpose, “jurisdictional errors” include:

1. breaches of procedural fairness2. making certain kinds of errors of law (errors of law that are held to “go to jurisdiction”)3. deciding a matter on a finding of fact for which there is no evidence

- Crevier also holds that a privative clause can exclude JR for “mere” errors of law – i.e. errors of law that are made “within the jurisdiction of the tribunal” and that do not “go to” jurisdiction or that do not “assume jurisdictional proportions”

- There remains some uncertainty, BUT it appears that the federal Parliament is likely similarly bound: - Case law post-Crevier seems to support this view- Note: Macmillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725 powers that form part of the core

jurisdiction of superior courts of the provinces cannot be removed by either the federal Parliament or the provinces

Re Residential Tenancies Act (1981, SCC)A 3 step approach is used to determine if a province can give a particular kind of power to an administrative tribunal:

1. Historical inquiry whether the impugned power is one that was exclusively exercised by a s. 96 court at Confederation in 1867.

If yes, continue to step 2 If no, power can be given to an administrative tribunal. This is the end of the story.

2. Court must consider if the power is a “judicial” power as opposed to a legislative or administrative power- A judicial power for this purpose is one that involves:- a private dispute between parties- that must be adjudicated through the application of a recognized body of rules- and that must be adjudicated in a manner consistent with fairness and impartiality

If judicial power, continue to step 3 If not, power can be given to an administrative tribunal

3. Look at the power in the context of its overall institutional setting to determine whether that setting changes the character of the power sufficiently so that it should be allowed to be exercised by the tribunal and not be considered a power that belongs exclusively to a s. 96 court

- Note: the “institutional setting” argument will apparently not save a judicial power that is the sole or central function of an administrative tribunal ...

- BUT it will save a judicial power that can be characterized as a “necessarily incidental aspect” of, or ancillary to, a broader, more comprehensive and complex regulatory scheme

- In many contexts, this is where the power is upheld If power is NOT ancillary, power can NOT be given to administrative tribunal If ancillary power, power can be given to an administrative tribunal

Administrative Law Remedies and ProcedureAt Common Law…HISTORICALLY…

- Exercise of the supervisory jurisdiction of the superior courts in England was largely based on a number of special remedies that were reserved for public law cases involving the exercise of public duties and powers

- These remedies were known as the prerogative writs and 3 of them were particularly important:a. certiorari: an order that quashes or sets aside a decisionb. prohibition: an order that prohibits a tribunal from proceedingc. mandamus: an order requires the performance of a public duty

- Each of these writs were discretionary and could be issued only by a superior court; their essential purpose was to ensure that bodies that had been given statutory powers did not exceed or abuse those powers

NOTE: Another prerogative writ that has been important in both administrative law and other kinds of public law (e.g. criminal law) is the write of habeus corpus which enabled courts to review the lawfulness of a detention of “the (live) body” of a person

NOTE: The private law equitable remedies of: Declarations (to declare rights) Injunctions (to restrain conduct)

Remedies Under “MODERN” Judicial Review Procedures Statutes…- Remedies that are similar to certiorari, mandamus, prohibition, declaration, and injunction remain the key tools

used by superior courts in exercising judicial review powers today - HOWEVER, in many provinces, INCLUDING B.C., procedural reforms mean that the prerogative writs of

certiorari, mandamus, and prohibition can NO longer be applied for or issued per se- Habeus corpus remains available to review the lawfulness of a detention and it has not been subsumed in the

remedy of an application for judicial review (that is, one may still apply for this writ as a writ)

Provincial (BC): The Judicial Review Procedure Act Federal: The Federal Courts Act- Can no longer apply for “writs”: s.13- Section 2(1): make an application for judicial

review by means of an originating application (a petition).

- on an application for judicial review the court s.2(2): "may grant any relief that the applicant would be entitled to" in proceedings for relief in (a) the nature of certiorari, prohibition or mandamus or (b) for a declaration or injunction”

- CAN’T GET DAMAGES- More flexible than the old writs, b/c even if you

don’t ask for the correct remedy, the Court can still give it to you

- Relief remains discretionary

- The procedures for making judicial review applications at the federal court are set out in the Federal Courts Act

- JR for all federally established boards, commissions or tribunals (broadly defined under s.2) must go through the Federal Courts

- Habeus corpus can be issued by superior courts in the provinces against federal administrative bodies and the Federal Court itself only has a limited jursidction to issue it (basically only for military detentions)

- Apply to Federal Court or Federal Court of Appeal, criteria explicitly set out in s.18 and s.28

- Section 18.1(4) provides when a Federal Court may (preserves discretion) grant relief on JR.

The Supervisory Role of Judicial Review: ExampleBaker v. Canada (Minister of Citizenship and Immigration) (1999, SCC)Facts:

o B. entered Canada from Jamaica as visitor in 1981 and stayed illegally; worked as a domestic worker for 11 years; had 4 children in Canada [1985, 1989 (twins) 1992]

o Became ill: post partem depression/paranoid schizophrenia diagnosed after last child born (1992) and B. went on welfare; father took custody of 2 children; other 2 were placed in foster care for a time, then returned to B when her condition improved

o 1992: B was ordered deported when it was found that she had worked illegally in Canada and overstayed her visitor’s visa [would have been shortly after the birth of the last child?]

o 1993: B applied for exemption on humanitarian and compassionate grds to allow her to remain in Cda to apply for PR status from w/i Cda [generally under the Act, applicants for permanent residence must apply from OUTSIDE Canada]

Under Immigration Act s. 114(2) and Regs, the Minister has authority to facilitate admission to Canada of a person where the Minister is satisfied, owing to the existence of humanitarian and compassionate grounds, that admission should be facilitated or that an exemption from the regulations made under the Act should be granted [the exercise of this ministerial discretion = the “H and C” decision]

o The immigration decision-making process in this case was as follows: 1993, Baker made a written application accompanied by documentation (lawyer’s submission; letter

from psychiatrist; letter from Children’s Aid social worker) for H and C consideration The documentation indicated (1) B was still ill but getting better; (2) B might get worse if forced to

return to Jamaica where she may not be able to get treatment; (3) B is the sole support of the 2 children in her care and is closely involved with her other 2 children in Canada; all 4 of her Canadian children would suffer if she were deported and so would she

The application was initially reviewed by junior IO Lorenz who makes notes and recommended against granting the exemption; the whole package (including Lorenz’s notes and recommendation) went to senior IO Caden, who decided not to grant the exemption [Caden had been delegated the Minister’s authority to make the H and C decision]

April 1994 letter to B from IO Caden says insufficient grounds to warrant processing her application in Canada - no reasons given

B's counsel asks for reasons; Immigration sends B a copy of the notes made by IO Lorenz that state, among other things:

B is unemployed, on welfare, has no income or assets It is an indictment of our system that she is still here B has 4 children in Jamaica and 4 born here [TOTAL OF EIGHT] (note Lorenz’s use of capital

letters) B will be a tremendous strain on welfare system probably for the rest of her life There are no H and C factors other than the 4 children – Do we let her stay because of that? In my opinion Cda can no longer afford this kind of generosity But there is a potential for adverse publicity so should be reviewed

B was served with a deportation notice in 1994 –directed to report for removal – but the notice was stayed pending her application for judicial review and then her further appeals in the courts

SCC did not hear the case and decide until 1999o Chain of statutory authority/delegations of power in this case were as follows:

Constitution Act 1867 – s. 91 Parliament has legis. juris. over immigration Parliament: enacts Immigration Act s.114(2); delegates statutory authority to Governor in Council (fed.

Cabinet) to make regulations Governor in Council: makes regulations under s. 114(2) delegating authority to the Minister to make H

& C (humanitarian and compassionate) decisions Minister of Immigration: delegates authority to make H & C decisions to Immigration Officers

(departmental officials) and guidelines are issued that instruct the officers as to how to exercise this decision-making authority

Note: Immigration Manual’s Guidelines for H & C Decisions: IO must carefully consider all aspects of situation; ask self what a reasonable person wd do; must consider 2 types of criteria that could lead to a favourable decision: (1) public policy considerations: e.g. marriage to a Cdn resident; the fact the applicant has become established in Canada (“an illegal de factor resident”); and (2) humanitarian and compassionate grounds: will unusual or undeserved or disproportionate hardship be caused to the applicant and/or her family if the applicant has to leave Canada?

Junior Immigration Officer Lorenz: makes the initial review of Baker’s application in this case, makes note and recommendations and passes file on to the Senior Immigration Officer Caden

Senior Immigration Officer Caden: considers the whole file, including the notes and decisions of IO Lorenz, and makes the final H and C decision

Note how the Baker case got to the SCC:o Federal Court Act (FCA) generally provides for judicial review of decisions of federal boards, commissions or

tribunals and sets out the grounds for such review o BUT Immigration Act s. 82.1(1) requires that leave is required before decisions under the Immigration Act can be

subject to judicial review FCTD judge gave such leave in Baker and judicial review under the provisions of the Federal Court Act

occurred. FCTD judge (Simpson) found against Baker

o Federal Court Act generally provides that decisions made by the FCTD on applications for judicial review can be appealed to the Federal Court of Appeal BUT the Immigration Act imposes a different and more restrictive rule in s.83(1)

Simpson J. in the FCTD, after finding against Baker, stated a serious question of general importance: Given that the Immigration Act does not expressly incorporate the language of Canada’s international obligations with respect to the International Convention 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?

o The stated question was considered by the Federal Court of Appeal per Strayer J. He held he was confined to the stated question only, and could not hear a general appeal of all the

issues that were before the FCTD on the original judicial review application. Strayer J. decided the stated question against Baker, and dismissed the appeal.

o Baker then sought leave to appeal the decision of the Federal Court of Appeal to the Supreme Court of Canada. Appeals from the Federal Court of Appeal to the SCC with leave are provided for under the Supreme Court Act. Leave was granted and the SCC entertained the appeal.

- Note: Although Baker had raised them, no Charter issues were considered – the Court held that it could decide the matter solely on the basis of administrative law principles

SCC Reasons: o Note: Both parties agreed that a duty of procedural fairness applies to H & C decisions. The fact that a decision is

administrative and affects “the rights, privileges or interests of an individual” is sufficient to trigger the application of the duty of fairness (Cardinal v. Director of Kent Institution)

o Issue 1: What is the legal effect of a stated question under s. 83(1) of the Immigration Act on the scope of appellate review? Is the scope of the appeal in the Federal Court of Appeal and the SCC limited because of s. 83(1)?

Held: the appeal is not limited to the serious question of general importance stated by the FCTD Once such a question has been stated, the appeal that follows is a full appeal from the judicial review

decision of the FCTD to the FCA, and from the FCA to the SCCo Issue 2: Were the principles of procedural fairness violated? Yes

Three parts to this issue:(i) Were there sufficient participatory rights given? Yes

o Set out in outline in section on Content Issues: The Level of Procedural Fairness - the Baker Factors

(ii) “Did the failure of Officer Caden to provide his own reasons violate the principles of procedural fairness?” [was there a duty to provide reasons that was breached?] No (but there was a duty!)o Set out in outline in section on Content Issues: Specific Content Issues (Reasons)

(iii) was there reasonable apprehension of bias (RAOB) in the making of the decision? Yeso Set out in outline in section on Bias: Impartialityo *Note: this was sufficient to dispose of the appeal; however, L’H-D went on to issue 3

anywayso Issue 3: Was there an improper exercise of discretion [substantive]? Yes

Set out in section on Substantive Review & Discretionary Decisions

Remedy:o The appeal from the FCA was allowed (i.e. this means that Baker’s application for judicial review was granted)o The decision of Immigration Officer Caden was set aside [“quashed”]o The matter was returned to the Minister for re-determination by a different IO;

Note: on the re-determination, the IO would have to decide impartially, and would have to apply the principles the SCC identified in the Baker decision as required in a lawful exercise of the discretionary power – i.e. the IO would have to give proper consideration/weight to the interests of the children in reaching a decision

o [Note the limited nature of the remedies ... the court did not simply substitute its own decision about what was “humanitarian and compassionate” for that of the IO. It would be open to the new decision-maker, following an impartial and proper decision-making process and exercise of discretion to reach the same decision as the original]

Part II: Procedural Fairness

Sources of Procedural Fairness ObligationsThere are four main sources of procedural fairness obligations:

1. Statutes and Regulationso Procedural rights might be in an “enabling act”o Enabling statutes set out a detailed list of procedural requirements that decision-makers must follow in

making specific decisionso Procedural rights might also be delegated from the Legislature to the executive powers, who can enact

regulations or rules regarding procedural requirements- This are known as “subordinate legislation” and it is binding on all those parties subject to it- This method promotes expertise and efficiency

o Procedural rights might also be set out in general statutes (i.e. the Administrative Tribunals Act)- Once triggered, these codes prescribe common procedural standards for decision-makers falling

within their ambit- The scope of the application of these procedural codes may be modified or limited by a public

authority’s enabling statute 2. Rights Documents

o Procedural rights might be set out by constitutional and quasi-constitutional documentso Examples: Canadian Bill of Rights, the Charter, the Quebec Charter…

3. Common Law of Procedural Fairnesso Procedural rights may be “judge-made” o Under the CL, a party affected by a public authority’s decision is entitled to be heard by the authority in

an impartial and independent manner o These rights began to develop with cases like Cooper and Nicholson (see below)

4. Policies/Practices of Agencies regarding Procedureso Policies are NOT law – they are sometimes called “soft law”o However, they are nonetheless “entitlements” like the other three categories o They do NOT need to get set out in an enabling statute

Interaction Between SourcesThere is significant interaction between these sources:

- If the statute is silent or contains gaps… the CL will impose procedures for decision-making

- If the statute overrules the CL procedures… the statute applies (based on legislative supremacy) do NOT even need to go to the CL

- If someone has a constitutional right to a particular type of procedure that the Legislature has taken away… the rights documents trumps the Legislature

The Historical Development of CL Procedural Fairness Obligations(1) The Concept of Natural JusticeThe concept of “natural justice” has two primary principles or aspects:

1. Audi Alteram Partem the right to know and respond to the case against you2. Nemo Judex In Sua Causa the rule against bias (nobody should be a judge in their own case)

Natural justice is the old terminology for “procedural fairness”

(2) Early English Common Law- Hearing rights were generally inferred as a matter of justice, when the important rights of an individual were being

affected by the decision or action at issue, especially if allegations of “wrongdoing” of any kind were at issue.

- The courts could consider the following to determine if natural justice applied to the d-m: (Cooper)o The nature of what was at stakeo The effect on the individualo The seriousness of the issue

Cooper v. Board of Works for Wandsworth District (1863, Eng. CP)- Facts:

o The Metropolis Local Management Act s. 76 requires that anyone intending to build a house had to give notice to Board of Works in Wandsworth seven days before beginning construction so the board could give advice about drains; when no notice is given, the board had the right to demolish the house; the legislation was silent on a matter of procedures regarding notice for demolishing a house

o Cooper started to build a house in Wandsworth; he said he gave 5 days notice (not adequate – he needed to give 7) but the Board said they didn’t get notice; the Board went and demolished the house

- Outcome: in favour of Cooper- Reason:

o The court interprets the right to tear down houses subject to a procedural fairness obligation; in order for the exercise of authority to be lawful, procedures needed to be followed first

o Why was procedural fairness required at the common law in this case? The nature of the interest (no man should be deprived of his right to property) and the seriousness

of the state action, targeted at an individual Cooper might have had a good excuse if the board would have heard from him

o Byles and Keating JJ: “there are no positive words in a statute requiring that a party shall be heard, yet the justice of the common law will supply the omission of the legislature”

(3) Later English Common Law: Restrictive ApproachRestrictions on access to hearing rights arose 20th century (1920 – 1960)- The common law became much more restrictive about when procedures should be imposed- This prevented procedures from being applied Common law focused on the classification of the function or decision being carried out- “Judicial” or “quasi-judicial” decisions

o Natural justice applied (this means fairly high-end procedures)o Hearing rights were accorded o In terms of remedies, the certiorari and prohibition were available

- “Administrative”, “executive” or “ministerial” decisionso Natural justice did NOT applyo No hearing rights accorded o Certiorari and prohibition were NOT available

Electricity Commissioners (1924 Eng. C.A.)“Whenever any body of persons, having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King’s Bench division…” [the “control” being exercised through the writs of certiorari and prohibition] – Lord Arkin

Church Assembly (1928, K.B. Eng)- Lord Hewat interpreted Lord Atkin’s pronouncement in Electricity Commissioners to mean that, for natural justice to

apply, the decision in question had to (i) determine rights and (ii) involve a “superadded duty” to act judicially in making the decision...so...

o If the decision was not a final decision (not “determinative”) - NJ did not applyo If the decision involved only “privileges” (as opposed to “rights”) - NJ did not applyo If no “superadded duty” to act judicially was found in the statute - NJ did not apply

(4) Development of “Duty of Fairness” Approach – Less Restrictive

The English common law “undid” the restrictions (above) and moved towards a recognition of a “duty of fairness.”

Ridge v. Baldwin- A Chief Constable was a public office-holder who could not be dismissed except for cause. The HL held that the

Watch Committee [police board] could not exercise its power to dismiss lawfully unless it had given the Chief Constable notice of the grounds for dismissal and an opportunity to be heard.

- HL did away with the need to find a “superadded duty to act judicially” before NJ could apply. Rather, the Watch Committee had a duty to act judicially because of the nature of the power being exercised.

- This was the first sign of doing away with some of the classificationso Specifically, in this case, they got rid of the need to have a “superadded duty”; there were “rights” being

taken away in this case and it had to do with some sort of a wrongdoingo There was a duty to act judicial just because of the nature of what was going on like Cooper

- Note: in this case they still applied classifications for types of public employment:o Employees – no procedures before dismissedo Public office holder “at pleasure” – no procedures before dismissedo Public office holder dismissible only “for cause” – procedures

Re H.K. (1967 Q.B.) - Immigration authorities have a “duty to act fairly” in making decisions about individuals- This isn’t about “rights”, but duty of fairness arose anyways

(5) Expansion of Procedural Obligations in Canada

Nicolson v. Haldimand-Norfolk Police Commissioners - Facts: Summary dismissal of a police officer, he was not given reasons for the dismissal, not given notice, not

allowed to make representations. The Regulations made under provincial legislation governing the police said that police officers could not be penalized without a hearing and an appeal but the Board of Commissioners of Police could dispense with services of any constable w/in eighteen months of being hired. In this case, the police officer was only 15 months into his term of service.

- Issue: did the decision attract any procedural fairness obligations, even though the legislation did not provide for any procedures?

- Outcome: Nicholson was entitled to be treated fairly, not arbitrarily, entitled to an opportunity to make submissions before he was dismissed.

o Under the traditional approach this would have been it this was not a judicial decision, and so the common law natural justice procedures did not apply. It was an admin decision and so Nicholson was not entitled to any protection.

o Majority of the SCC (5-4) held that a general duty of procedural fairness applies to admin decisions Got rid of the judicial vs. administrative dichotomy Administrative decisions also attract procedural fairness

o NOTE: The SCC did not do away with the distinction btw admin and judicial decisions – instead, accepted as a general principle of CL that in the sphere of the judicial, the rules of natural justice run and in the administrative sphere there is a general duty of fairness

o Justifications underlying Laskin’s decision/reasons for according people procedures: Correctness (“the police board should want to make certain it has not made a mistake…”) Moral claim (“status in office deserves this minimal protection”; the fact that it’s a public decision-

maker under statutory power brings in the public law issues and raises the status of N’s claim) The power, once exercised against N, would be final and unreviewable and that makes it all the

more important that it was right in the original decision, which suggests you should hear from the person in the first place

- Dissent:o They took the CA lineo The statutory language is clear; N doesn’t get NJ or a “duty of fairness”

- Post-Nicholson:o The SCC had quashed the police board’s decision, which meant that N was reinstatedo The matter went back to the board to re-decide and the board had to re-decide after a fair processo The Board notified N of 11 different allegations of misconducto N sought judicial review AGAIN and sought prohibition; he wanted them to stop the proceeding of the police

board because: The effect of the SCC was to reinstate him; it was like he was never fired; he was over 18 months

and therefore he got a full right of hearing AND a right to appeal There was a 6 month limitation period so the whole thing was over and he was reinstated N lost on this review; they treated it as though the new hearing was a continuation of the old one

thus the arguments he made did not succeed However, he did receive money for the time he was not being paid

o Note: just because this went back to the same body/same decision-maker doesn’t make this an issue of bias; the decision-maker is entitled to make the exact same decision they did originally

- Note: after this case it remained unclear if there were two distinct levels of procedural protection

(6) Development of Modern Approach to Procedural FairnessFurther development in 1980s towards the modern approach to PF gradually did away with the need to distinguish between NJ and “duty of fairness,” UNLESS statute law requires that the distinction be made by use of the older classification terminology. This move away from the bifurcation between “natural justice” and “duty of fairness” rights for different people is illustrated in two cases (below).

Martineau v. Matsqui Inmate Disciplinary Board (No.2), (SCC 1980)- Facts: two inmates were disciplined and alleged that they were not given a hearing; they made an application for

certiorari in the Trial Division; the application was based on the fairness requirement- Outcome: procedural rights were awarded to Martineau - Reason: “In general courts ought not to distinguish between Natural Justice and the duty of fairness, for the drawing

of a distinction between a duty to act fairly, and a duty to act in accordance with the rules of natural justice, yields an unwieldy conceptual framework.”

o Therefore, there was a movement away from the distinctiono Dickson also noted that there were some situations where distinctions would need to continue to be made

I.e. when drafting statutes, sometimes the drafters used the words “judicial” or “quasi-judicial”; if that was the case, they would have to go back to the old law

- Note: the SCC appeared to expand the limits of certiorari to include the enforcement of procedural requirements generally

Cardinal v. Director of Kent Institution (SCC 1985) - Facts: some inmates, after a riot, were put in desegregation (punished); they were kept there; a review panel

recommended the prisoners were released; the director of the prison has the final decision and decides not to release them without hearing from the prisoner

- Issue: did the director of the prison have a duty to hear from the prisoners before overruling the recommendation?- Outcome: yes; he should have heard from the individuals before making the decision- Reason:

o The original decision of the director did not need a hearing, because it was an urgent situation (an emergency), BUT when the director decided not to release the prisoners, he should have heard from them; it could have been informal, but they should have let them know they were staying here and allowed them to comment

o “This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying in every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges and interests of an individual.

o ...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.

Just because a hearing wouldn’t have made a different doesn’t mean that it should have happened; that is NOT an excuse

The only time that reason MAY apply is when the outcome was determined without a hearing as a “matter of law” that was clearly stated

This goes back to the idea of a “moral claim” discussed above in the Nicholson case

Modern General Framework for Procedural Fairness QuestionKnight (SCC 1990)

1) Threshold test—Does a duty of fairness at common law apply in these circumstances?2) If so, does the defence of Statutory Authorization apply? Is there anything in the statute which modifies or

overrides the common-law duty?3) The Baker 5 Factors—What is the content of the duty of fairness?4) Has the duty been complied with—look at the facts and see if what happened was valid.5) What should the remedy be—is there any reason to withhold the discretionary remedy?

The Threshold TestIssue Case Ratio NotesWhen does PF apply?

Cardinal v Kent (SCC)

The requirements for procedural fairness to apply are:(1) a public authority(2) who has made a ‘decision’(3) not of a legislative nature and(4) it affects the rights, privileges or interests of an individual.(5) it is not an emergency or urgent situation(6) there are special considerations for employment contexts

(1) Public Authority

Nicolson Police BoardCardinal Director of a PrisonKnight School BoardRe Abel Advisory Review Board at a prisonRe Webb Property manager of state housing hired by government—D went through series of

boards and committees as well.Irvine Hearing Officer for Combines Investigation Act.

(2) Finality? Re Abel There are two factors to consider when determining whether a decision is ‘final’ in the sense that it attracts procedural fairness.

(1) The proximity of the decision: In a multi-stage decision making process, consider the relationship of the stage in question to the other stages. What is the impact of this stage on the final decision?

(2) The exposure to harm: What is the impact or effect of this stage of the decision making process on the rights, privileges or interests of the person who is seeking PF?

Ex: even though the report from the advisory board was non-binding on the LG in C, it attracted PF b/c

(1) there is no way that the LG in C would allow release of a NCRMD prisoner w/o a positive recommendation in the report.

(2) Huge impact on individual’s rights b/c it was about liberty

Irvine While considering the two factors, it is also important to consider the specific statutory context.

Policy: Some statutory schemes may require more deference than others.

Ex: don’t want to unduly burden or complicate law enforcement investigative processes –here investigating economic crimes, which would be hard to do if you had to accord PF first.

(3) Legislative in nature

Knight Duties that legislatures have traditionally performed but transferred to an administrative body, and are ‘general’ in nature (i.e. not focussed on the individual) are likely ‘legislative’ decisions and therefore do not attract PF.

Inuit Tapirisat

To determine if a decision is legislative in nature, it is necessary to interpret the statute and see if:

(a) Is the function comparable to that which was exercised by parliament?

(b) Is the subject matter unique to an individual or generally

Here G in C making a ‘legislative’ decision because they are setting the rates, statute allows them to act ‘of their own motion’, applies to many people generally, political policy choice.

NOTE: later criticized as making it over-difficult to apply PF to cabinet decisions

applicable?(c) Is it a political policy change,

or a resolution of a dispute between parties?

(d) Does it create general norms, or is it applying the norm to a particular person/group?

Homex (B) (C)

Municipalities exercise both legislative and administrative decisions.

Decisions are administrative when the municipality is dealing with a conflict between private parties, or issuing or withholding licenses to individuals.

Here the decision was judicial because it only applied to Homex and was meant to resolve a dispute between the municipality and Homex.

CARI (B) Policy decisions are legislative decisions and not subject to PF, despite the fact that some benefit and some may be harmed from a policy decision.

Allocating a quota to an individual would not be a legislative decision, but a general quota policy applicable to all people engaged in the activity would be.

This is because the answerability of legislative decisions are in the political realm.

Only Parliament can impose a public consultation process on legislative decisions.

Note: Perogative Black Generally, crown prerogative power is not subject to JR UNLESS(1) The D alters an individual’s legal

rights OR(2) The D affects the individual’s

legitimate expectations

The decision in other words needs to be ‘justiciable’ in that it has a sufficient legal component for the court to decide on and is not merely political.

(4) Rights, Privileges or Interests

Re Webb Something non-trivial must be at stake for an individual. Admin law takes a “broad” view of rights, privileges and interests.

CARI Holding a licence or quota = a privilegeRe Webb Deprivation of state benefits = an

interestHowever, if the decision to allocate a state benefit may not be an interest… it’s only being deprived of a state benefit you already have that counts as an interest.

*this is ‘pure application’ and is NOT firmly entrenched in case law. b/c you have no right or expectation to receive state benefits. Also ‘being heard’ may happen in the app. If reputation is involved by being denied a state benefit (i.e. you must be bad b/c you didn’t get it) then this is likely an interest.

Irvine Reputation = an interestLafontaine Ability of a religious group to engage in religious observance = interest

(5) Emergency or Urgency

Cardinal v Kent

An emergency or urgent situation may justify foregoing procedural fairness, if the situation demands an immediate decision be made.

- However, you may have to hold a hearing after the decision is made, and

- as soon as the urgency subsides PF must be brought back.

(6) Employment Dunsmuir If the terms of employment are governed by a K, then the remedy for dismissal must be sought through K law not PF regardless of the public nature of the office.

The only people who are still protected by admin law in the employment context are those who are not protected by Ks or employed ‘at pleasure’. Nevertheless, the duty of fairness may still arise through

necessary implication from the statute.

Alternate Threshold Test: Legitimate ExpectationsHow does it work? Re:

CAPLegitimate expectations may afford a party procedural fairness in a situation where they would otherwise not be entitled to.Cannot create substantive rights, can only create rights for PROCEDURE, doesn’t affect what decision is ultimately made.

Policy: b/c legit expectations easier to prove (no reliance or knowledge necessary) it doesn’t make sense to increase its power to give a substantive remedy (Mt Sinai)

Requirements Mavi Requirements:1. Public official makes promises or

representations2. MUST be clear, unambiguous and

unqualified3. MUST NOT conflict with statutory

duty4. MUST be w/n the authority of the

official to make

Note:- Proof of reliance is NOT required- Proof of prior knowledge of the promise/

representation also not required.

Re: CAP

Cannot apply to legislative decisions - Unclear as to what this means in this context, arguably must be different than normal threshold b/c this is a way to get over threshold when that test doesn’t work

- But can’t be so narrow as to be ONLY pure legislative decisions (i.e. statute passed in Parliament)

“clear, unambiguous, unqualified”

Mavi Sufficiently precise if they could serve as the basis for an enforceable K… i.e. not too uncertain.

Policy Mt Sinai

Policy Behind not requiring reliance or prior knowledge:- Promote regularity, predictability and certainty in Gov’t action- Don’t want to be unfair to those who were simply uninformed- Don’t want to encourage ADMs to act unfairly by letting them off the hook b/c party

simply uninformed.Why NOT to use as threshold test

Mt Sinai

Broad public policy is for the Minister to decide not the courts, and you don’t really need Legit expectations to get over threshold b/c...

Mavi It has become “the default” to require some sort of PF, so not hard to pass the threshold.

Statutory AuthorizationIssue Case Ratio NotesIs there anything in the statutory scheme that either limits or negates the right to PF?

Kane v UBC as cited by Knight v Indian Head

“Express language or necessary implication must be found in the statutory instrument” in order to override the procedural fairness accorded by the common law

The only way to override the statute would be through the constitutional or quasi-constitutional provision, should the statute block PF.

Nicolson v Haldimand SCC 1979

Silence in the statute as to procedural fairness rights does not indicate that no procedural fairness is required.

Statute accorded Police Officers full PF after 18 months, but said nothing about probationary officers. PF still required for probationary officers.

Over-ride the Statute with the CBRIssue Where Ratio NotesWhat are the CBR provisions?

s. 1(a) It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

s. 2(e) Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations

Does it still apply?

Singh The CBR is of full force and effect due to s.26 of the Charter.

Threshold Authorson SCC 2003

Feds enacted statutory bar to claims for lost interest in disabled veterans pensions scheme: argued that no procedural rights were accorded prior to statutory bar, thus it took away property rights w/o due processs.1(a) only guarantees some PF in an individualized, adjudicative setting and NOT for legislative decisions

Thus you still need to pass the threshold test before you can use the CBR to over-ride the statute and give you PF rights. Can’t get PF for legislative decisions!s.2(e) guarantees a fair hearing when

before an ADM that determines individual rights or obligations, but it does NOT guarantee this in the context of legislation.

What is protected?

Authorson SCC 2003

The CBR only protects the types of rights that existed in 1960.

Thus it does not protect against the expropriation of property w/o compensation by the passage of legislation b/c this was allowed in 1960.

When does s.2(e) apply? What does it require?

Singh s.2(e) protects an individual’s right to a fair hearing in accordance with the principles of fundamental justice where there is a determination of their rights and obligations. It does not provide protection where the decision is about mere privilege.

The PFJ may require an oral hearing depending upon:

(1) Circumstances of the case(2) Nature of the inquiry(3) Rules of the tribunal(4) Subject matter dealt with(5) Nature of the legal rights(6) Severity of the consequences

Override the Statute with s.7 of the CharterIssue Where Ratio NotesWhen is s.7 Triggered?

Singh s.7 applies to everyone physically present in Canada, to be triggered must:(1) deprive(2) life, liberty, or security of the person(3) NOT in accordance with the principles of fundamental justice

NB Minister of Health

“security of the person” includes psychological integrity, to trigger need serious state imposed psychological distress—greater than ordinary shock or anxiety.

Here s.7 triggered b/c of gross intrusion into private/intimate sphere, parent stigmatized as unfit, status as parent fundamental to identity.

Suresh Deportation to face torture is a deprivation of life, liberty or security of the personWhat are the PFJ in a procedural sense?

Singh “Procedural Fairness” is a principle of fundamental justice which means that the decision maker must (1) act fairly (2) in good faith (3) w/o bias (4) in a judicial temper and the individual must be (5) given the opportunity to adequately state their case.

The content of procedural fairness required is contextual as always.

NB Minister of Health

PFJ require effective participation b/c a D must be based on all the information and the claimant is often an important source of that info.

Thus need PF that accords w PFJ, and that means state for effective participation in this case the state had to provide legal aid counsel,Based on:(1) seriousness of interests(2) complexity of proceedings(3) capacities of claimant

Suresh While the content of PF required by PFJ is not identical to the common law, the Baker Factors are still useful to determine the content of P.F. required to accord with the PFJ.

Charkaoui The Court does not explicitly use the Baker factors to determine the content of PF required, but they look at:

(1) Nature of proceedings(2) Nature of the impact(3) National security context (while may

significantly change what PF is required, still can’t completely override it)

Thus the content of procedural fairness is contextual.

Disclosure is necessary so that the person can answer any claims against them. This also ensures that all the facts come out in the proceedings so that the D/M can make the best decision.

National security interests, protecting informants can place limits on disclosure. However, there needs to be an adequate substitute where these interests preclude the usual form of disclosure.

Can a breach of s.7 be “saved” by s.1?

Singh It will be very difficult to ‘save’ a breach of s.7 under s.1, especially b/c arguments of convenience or cost on the administrative side are less likely to be successful where such high stakes are involved (life, lib, sec of per) and state is not observing PFJ.

NB Minister of Health

Only “exceptional circumstances” such as war, natural disasters or things such as epidemics will be able to justify a breach of life, liberty or security of the person not in accordance with PFJ.

Content TestIssue Case Ratio NotesStatutory Content Administrative

Tribunals ActOnly applies if the enabling legislation of the tribunal so provides, and only to the extent to which it provides. Check first and see if it applies, b/c may dictate what kinds of PF are required.

General Baker A non-exhaustive list of five factors are balanced to determine the content of Procedural Fairness required.

1. The nature of the decision and the process followed2. The nature of the statutory scheme and the terms of the statute pursuant

to which the body operates3. The importance of the decision to the individual affected4. The legitimate expectations of the person affected5. Take into account and give important weight to the choice of procedures

made by the agency itself and to its institutional constraints (although this cannot be determinative)

Mavi The over-arching goal of procedural fairness is the “central notion of the just exercise of power”. Thus in applying the Baker factors, one should not be mechanical or rigid and keep the mind this goal.

Factor 1:Nature of the decision

Baker What does this type of decision mandate the process should have? The more closely the decision resembles a judicial decision making process, the more PF should be accorded.

Not judicial if:- No set legal standard to apply- No dispute between parties

to be resolved- No real dispute on the facts- Policy type of discretion- About the public interest

Lafontaine Re-zoning Application Less PF: Municipal gov’t elected & accountable to constituents for Ds. Left in their discretion to decide what is in the public interest.

More PF: With discretion comes the potential for abuse of power, no discretion is w/o limits so might need more judicial oversight.

Mavi Ordinary Debt Collection Less PF: purely administrative process, no objective standard to apply, decision not judicial.

Factor 2:The Nature of the Statute

Baker Consider the role of the particular decision w/n the scheme and anything in the statute which indicates what the content should be. More PF is needed where there is no appeal and the decision is determinative w no further requests allowed.

Where the role of the decision is an exception to the normal scheme LESS PF:- Maybe b/c you are already

getting special treatment and thus more fairness by being considered for the exception

- Thus gov doesn’t need to give you more fairness

Lafontaine No Appeal provision Thus more PF required—b/c no further chance to correct defect in D process.

Mavi Simple process with limited discretion, but no Less PF:

appeal process. -Clear gov’t wanted to avoid complicated process

-B/c discretion is narrow, don’t need that much info to make decision

More PF:-No others remedies available, no appeal

Factor 3:Impact of the decision on the individual

Baker The more important the decision is to the individual and the greater the impact, the more PF should be accorded.

THIS IS A VERY DETERMINATIVE FACTOR it seems… in Baker was very important to individual.

Lafontaine The right to freely practice a faith and to congregate with others

This is a very important right (protected by Charter) so big impact = more PF

Mavi Possibly large sums of money to be collected by gov from sponsors.

More PF: huge financial impact on individual.

Kane Right to continue in one’s profession or employment is at stake = More PFFactor 4:Legitimate Expectations

Baker If the claimant has a legitimate expectation that a procedure will be followed, then this process will likely be required OR if the claimant has a LE of a certain result, then more PF needed to give a different result.

**See requirements in Mavi threshold test section***

Lafontaine First decision, D/M gave reasons and did careful consideration, second and third time gave nothing.

More PF like what was given in first application needed, b/c of legit expectation

Mavi Requirements:1. Public official makes promises or

representations2. MUST be clear, unambiguous and

unqualified3. MUST NOT conflict with statutory duty4. MUST be w/n the authority of the official

to make

Note:- Proof of reliance is NOT

required- Proof of prior knowledge of

the promise/ representation also not required.

Factor 5:Agency’s Choices

Baker Deference to the agency’s choices is particularly important when the statute gives them a lot of discretion in choosing their own procedures. This is b/c DM seen as an expert in what types of procedures are necessary.

Consider other policy at play:- Volume of decisions and

potential cost of adding PF- Leeway given to state as

expert when they do provide a process

Other Policy considerations

Lafontaine -Want to promote values of fair and transparent D/Ming-Want to reduce the chance of arbitrary or capricious Ds-Want to encourage public confidence of citizens in public officials

Mavi -PF may be inefficient or expensive for tax payers-But also costs the public if gov’t is seen to act unfairlyAlso want to avoid poor decisions, more PF would mean you have more info to make better D.

Balancing the Factors

Baker Looking to see what is necessary for the individual to fully present their case given the circumstances.

Mavi Keep in mind looking to require a “just exercise of power” –central notion. (The factors are not exhaustive!)

Specific Content Issues Remember to look to the Statute, regs and rules FIRST to determine what specific content is required.

Time Issue Case Ratio NotesPre-Hearing

Notice None Issues that arise are:- Form: written, electronic or oral? Unlikely to

grant JR where the defect is just in form and no prejudice.

- Manner of service: Personal is best, required for high-end. Just needs to be reasonably likely to be effective i.e. newspaper ad for “mass notice” in CARI

- Timing of notice: Must be long enough in advance to allow person to decide whether to participate and to prepare. Varies depending on seriousness and complexity of issues. Remedy is to give more time to prepare, i.e. adjourn.

- Content (sufficiency): must give enough info (and clear enough) to enable person to decide whether to participate and prepare, given seriousness and complexity. Can’t be misleading.

Usually notice requirements are part of a tribunal’s procedure rules/ legislation.

Discovery Getting relevant information from third parties.- Saved for situations where there is a dispute,

adjudicative style

Many tribunals do not have authority to order discovery, unless ATA provision which gives power is made applicable.

Disclosure This is where the D/M provides the information they will rely on in making the decision. Just need a reasonable amount of information in order to effectively prepare and present their case… the criminal level of pre-hearing disclosure is NOT required in civil context. Consider all the circumstances and determine what is necessary. (May v Ferndale)

Also occurs at hearing stage, often having it only there are not before will be sufficient. Check tribunal rules, many have their own procedure for it as it speeds up process.

Hearing Oral vs Written

Khan There is no presumption that PF requires oral hearings. Will only be necessary if:

(1) Something serious at stake(2) The decision turns upon the credibility of

the individual concerned

This case is a great example of how characterizing the interest at stake can alter the decision.

Black The Court will only intervene to require an oral hearing if it is manifestly unfair to the individual affected for the decision to be made without one.

NOT a question of what would most benefit the claimant.

Baker An oral hearing is not always required nor necessary to ensure PF as meaningful participation (the ultimate goal of hearing rights) can occur without one.

Not required here b/c claimant had opportunity to put all relevant info in front of D/M

Public Process

ATA s.41-42

If applicable provides that oral hearings will be open to the public. Other provisions if applicable allow for information to be taken in camera.

None General rule: if there will be an oral hearing, it will be public unless there is a good reason to

Reasons to avoid public:- Personal security interests

stay private or the statute says it will be private. - Privacy interests (esp victims)

- National security interests- Protect police informants- Protect commercially

sensitive infoRight to Counsel

ATA s.32 If applicable provides that a party may be represented by counsel or agentn/a Very unusual to be barred totally, assumed that this exists usually. Often

required expressly by statute. Consider if it is.NB Min of Health

State-provided counsel may be required in certain Charter contexts depending on:

(1) What’s at stake(2) The complexity of the process and the law(3) The capacity of the person affected to understand and to participate

w/o counselDisclosure Ferndale PF generally requires that the D/M disclose the

information relied upon in making the decision. The disclosure must be sufficient for the individual to know what case they must meet.

Must happen and happen sufficiently to satisfy PF.

Kane It is not necessary for the claimant to show prejudice through lack or sufficiency of disclosure, likelihood of prejudice is good enough.

Ex of breach of PF b/c one party gave evidence after claimant left but before D made.

Re Abel Obiter: there may be good reasons to limit disclosure, such as where disclosure may cause harm to the claimant or the institution.

Suresh Disclosure is necessary so that the person can answer any claims against them. This also ensures that all the facts come out in the proceedings so that the D/M can make the best decision.

However, national security issues may limit disclosure, but there needs to be an adequate substitute where these interests preclude the usual form of disclosure.

Pritcherd Solicitor-client privilege may limit disclosure, such as when an in-house lawyer prepares a legal opinion for an Admin agency.

Evidence and Cross-Examination

Irvine PF does not automatically mandate cross-examination rights, rather depends upon over-all leval of PF and that claimant has reasonable opportunity to present and test evidence.

Not allowing cross examination may not be a breach of PF depending on the nature of the proceedings.

Delay Blencoe State-caused delay will warrant a stay of proceedings if it results in significant prejudice, which can happen two different ways:(1) Actual prejudice to a fair hearing in an evidentiary sense(2) Amounts to abuse of process

Actual Prejudice:- Claimant must have proof that is specific

and convincing- Show the person can no longer answer the

case against them due to the delay, b/c witnesses have died or evidence has been lost etc

Heavy onus is b/c courts want to avoid creating judicially imposed limitation periods.

Abuse of Process, need all three:(1) Inordinate delay(2) That causes serious stress

Factors to determine whether delay was “inordinate”

(psychological harm) or stigma to reputation

(3) So that the human rights system is brought into disrepute

- nature of the case/the various rights at stake

- level of complexity of facts/issues

- purpose and nature of the proceedings

- whether the applicant contributed to the delay or waived it

Minority: Other remedies are available to less serious unreasonable delays such as cost orders or an order of an expedited hearing.

Post-Hearing

Duty to give Reasons

Baker First time court recognizes PF might require reasons. Test:(1) Where the decision has very important significance for the individual [this was the basis for the existence of the duty in Baker](2) Where there is a statutory right of appeal [NOT availability of judicial review](3) or in other circumstances

Flexible duty, consider type of reasons required may not be judicial standard due to broad variety of decision making. Based on circumstances… ex here good enough for Junior Officer’s notes.

Nfld Nurses

It is only the failure to give reasons at all that will amount to a breach of PF, challenges to the adequacy of the reasons is a matter of substantive review.

Examples of duty to give reasons

Lafontaine Duty to give reasons arose due to L.E. (1st rezoning refusal was given with reasons) and partly the seriousness of the impact i.e. needed a place to practice their religion.

Catalyst Reasons not required of municipality when making policy decisions such as tax by-laws, even if that by-law only affects one person.

Mavi Reasons not required b/c minimal PF owed and interest at stake not very serious. Also perhaps no reasons required b/c reason is obvious due to the very narrow scope of the discretion, i.e. they didn’t think your circumstances warranted delay in debt proceedings.

Compliance with the DutyIssue Case Held Ratio NotesWere the procedural fairness requirements met?

Knight v Indian Head

MET An informal process was sufficient that Knight was (a) made aware of the concerns of the school board and (b) had had a sufficient opportunity to deal with them over a ‘course of dealings’ between himself and the board

Here it was a board of directors hired by the school board, whose K was terminable upon three months notice. Went into negotiations about K renewal but could not come to agreement, so board gave the three months notice and terminated him.

Cardinal v Kent

NOT MET

Informal notice and informal hearing would have been enough PF, but none was given.

Here it was prisoners who had been segregated after causing a riot… the first decision w/o PF was OK, but later decisions to continue segregation after a non-binding recommendation to release the prisons into the general population required some sort of PF.

Nicolson v Haldimand

NOT MET

Reasons needed to be given as well as a chance for the police officer to respond

Police officer on probation dismissed without reasons being given, although didn’t get the full spectrum of PF that statute authorized after 18 months, common law still gave him something.

Re Webb MET Written notices given (ok b/c her children could read) as well as social workers personally explaining was enough PF. Opportunity to be heard is important, but she took absolutely no steps to be heard so that isn’t the D/M’s fault.

Notice given to illiterate woman that she will be evicted from state housing if she doesn’t get her children to behave. She doesn’t, is evicted.

Re Abel NOT met

Required to consider and balance disclosure vs non-disclosure and give reasons for decision.

Chairman refused to release report to NCRMD patient and counsel, when recommendation about release of patient would be made relying largely on this report. Huge impact, so needed to give PF when deciding whether to disclose or not.

Irvine V Canada

MET Don’t have to allow cross-examination in prelim process.

Hearing officer in initial investigation restricted the role of counsel, only allowed to interview their own client but not cross-examine witnesses. Cross examination allowed later in process if it proceeds.

RemedyIssue Case Ratio NotesFutility Cardinal v

KentThe result of a breach in PF “must always render a decision invalid” regardless of whether the outcome of the decision would have been different with the PF or not.

This is because procedural fairness is required for the lawful exercise of power. Thus a decision made without PF is a jurisdictional error.

Mobil Oil In exceptional circumstances where it is absolutely certain that only one decision can legally be made, it is futile to grant a remedy for breach of PF.

Can deficiencies be ‘saved’ by according PF in a later stage?

Taiga v BC (BCCA)

Appellate administrative tribunals may be able to cure breaches of PF at an earlier stage in the decision making process. The procedure as whole must be considered, and this includes the appellate process.

- This depends largely on whether the breach in PF continues to have negative effects at the appellate level.

FACTORS:(1) The gravity of the error

committed in the first instance

(2) The likelihood that the prejudicial effects or error may also have permeated the rehearing

(3) The impact on the individual of the error

(4) The powers of the appellate body

(5) Is the decision based on a ‘de novo’ rehearing, or is it only based on the material before the original D/M?

Substantive Remedy? Lafontaine Cannot assume that the claimant is entitled to a favorable decision, it is not up to the Courts to exercise the D/M discretion.

Discretional Nature of the Remedy: When to Refuse Discretion(1) Mootness NB

Minister of Health

To have standing, a claimant must have more than “academic” interest in the decision. Thus need:

A. Sufficient adversarial context andB. A question of national importance

that is elusive of judicial review

The court is reluctant to over-step its proper institutional role in hearing cases that are “moot” (i.e. where the decision being contested has already expired and is no longer affecting you)

(2) Delay n/a If there has been an unreasonable delay in an application for JR, it is grounds for the court to refuse to exercise their discretion in granting a remedy.

b/c prejudice could arise by detrimental reliance of a party on the decision at issue or b/c difficult to mount a defence after long time.

FCA s.18.1(2)

Applications for JR must be brought w/n 30 days of the decision, the court does have discretion to extend this though.

ATA s.57 If applicable, application for JR must be brought w/n 60 days of the decision. Court can exercise discretion to extend if “there are serious grounds for relief, there is a reasonable explanation for the delay and no substantial prejudice or hardship will result to a person affected by the delay”

JRPA s.11 Where s.57 ATA does not apply and the enabling Act does not set a time limit, this provision applies:

Passage of time does not bar an action for JR unless substantial prejudice or hardship will result to a person affected by the delay.

(3) Misconduct Homex Judicial review remedies are discretionary in nature. The court will not exercise their discretion if the plaintiff is guilty of bad conduct.

Not granted here b/c all Homex was trying to do was avoid paying for the subdivision, drew out the process by refusing to be frank and engaged in checker boarding.

(4) Waiver n/a A party may expressly or impliedly waive their right to complain about a breach of procedural fairness, including complaints of bias or lack of independence. Thus occurs when a party has knowledge of all the facts and their legal rights in the matter, and can be inferred from their conduct if they continue w/o objection. However if you make and sustain and objection, continuing in the proceedings is not a waiver of your rights.

(5) Prematurity Black A court will refuse to exercise their discretion if a JR application is made “prematurely” in that the tribunal has not yet completed their proceedings. Need exceptional circumstances to make an “interlocutory” application.

Policy:- Don’t want to make trouble for

the admin process- Cheaper, more efficient- Correction may be possible- Claimant might end up w the

decision they want if they continue in the process

(6) Adequate Alternate Remedy

Harlekin An applicant must exhaust all other adequate remedies w/n the statutory scheme before seeking judicial review. Only in exceptional circumstances will JR be granted where there are still internal appeals or statutory rights of appeal available.

External appeals will almost always be adequate as long as Court empowered to give remedy sought.

Internal appeal will be adequate considering:- The nature of the internal

appeal body: can it resolve and correct the matter

- The convenience of the forum: costs, expeditious. Compare to JR

- The procedures and capacities of the appeal body: will it use PF w/o bias, is it sufficiently independent?

Zahab Always take into account the nature of the interests and to what extent they are immediately and irreparably prejudiced by the initial decision.

Decision to suspend hospital privileges for Dr. revoked on JR despite AAR b/c had immediate serious impact and irreparably harmed reputational interests.

FCA s.18.5 Where there is an appeal from a decision of a federal board, commission or tribunal to the Federal Court, the SCC, the Court Martial Appeal Court, the Tax Court, The G in C, Treasury Board, the appeal MUST be pursued rather than JR.

(7) Balance of Convenience

Mining Watch

To refuse or grant relief where entitled involves consideration of a ‘balance of convenience’ in that third party rights or interested parties should not be disproportionately impacted.

Part III– The Rule Against Bias

General PrinciplesIssue Case Ratio NotesHow is bias a part of PF?

Baker “procedural fairness requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker”

Nfld Telephone

“[the duty to provide PF] cannot exist if an adjudicator is biased”

Imperial Oil “The duty of impartiality…has now become part of the principles of administrative justice”

What are the underlying purposes of the RAB?

n/a (i) Fosters public confidence in admin justice: legitimizes Ds and makes them acceptable

(ii) Promotes substantive fairness (better Ds b/c not based on irrelevant or extraneous factors)

(iii) Supports participatory procedural rights(iv) Linked to the ROL and equality goals

When does the RAB apply?

Imperial Oil Basically applies to all decisions by administrative decision makers, it’s just the level of the duty that varies with the context…

Contextual Approach

Imperial Oil Duty of impartiality (positive form of RAB) varies in order to reflect the context of a D/Ms activities and the nature of its functions.

The higher on the spectrum, the more you must have judge-like impartiality.

Branches Matsqui There are two branches of bias, both of which can be institutional or individual1. Impartiality

o Impartiality is about a state of mind – does the decision maker have a predetermination? Are they pre-disposed to a party?

o Impartiality is ALWAYS required – even at the low end of the PF threshold2. Independence

o Independence is about a state of relationship – will the decision maker be influenced because of a relationship to someone else

o Three factors to determine independence (Valente)i. Security of tenure

ii. Security of renumerationiii. Interface between the decision maker and political influence

o Independence is ONLY required at the HIGH END of the procedural fairness spectrum

ImpartialityTHE TEST for RAOB in an individual D/M

Committee for Justice and Liberty

“Would an informed reasonable person, viewing the matter realistically and practically, reasonably conclude that it is more likely than not that the decision maker (whether consciously and unconsciously) would decide fairly?”

If they would not conclude that = RAOB

R v. S. (R.D.) (1) Reasonable person- Who is fully informed- Doesn’t have a “very sensitive”

conscience(2) With a reasonable apprehension of bias

based on all the circumstances- Grounds must be “substantial”- Mere suspicion of bias is not enough

*Onus rests on person who is claiming bias*

Not enough to show D/M has opinions or attitudes, need to show that their beliefs/opinions prevent them from coming to a decision based on the evidence.

Note it is only the appearance of bias that triggers the RAB, doesn’t actually have to exist.

Effect of Bias n/a Disqualifies d/maker from making a valid decision and therefore causes a loss of jurisdiction.

Decision can be quashed and sent back or can get a prohibition.

Process for Bias Claim

n/a Raise first with d/m and get a ruling; then continue while maintaining the objection or seek prohibition (despite risk the application may be considered premature)

If you waive your objection, then you can’t bring it up again later.

Categories Text p 258 There are four categories in which Bias may occur:

1. Pecuniary or material interest in the outcome (conflict of interest)

2. Personal relationships with those involved in the dispute (parties, counsel or witnesses)

3. Prior knowledge or information about the matter in dispute

4. Attitudinal bias—predisposition towards a certain outcome

Note these categories are not exhaustive.

Bias can occur on an institutional or individual level

Pecuniary or Other Material Interests in the OutcomeTest changes based on whether the interest is direct or indirect, but want to always argue both!This can apply even to more legislative D/Ms such as Ministers!Very little tolerance for PERSONAL PECUNIARY interests in ANY D/MIssue Case Facts Held RsnsDirect Pecuniary (economic) interest

Energy Probe

The Board is deciding whether to renew Ontario Hydro facility.

Energy Probe (an interest group) claimed that Olsen (on the Board) is biased – he owned a cable company who sold cables to Ontario Hydro.

NO bias, this is not a “direct” benefit

If there is a direct pecuniary interests, the test is NOT the RAOB test a direct pecuniary interest will lead to automatic disqualification of the DM

The amount of the pecuniary interest is NOT a factor, whether there are restrictions on the use of the money does not matter

the mere possibility that a profit could be realized in the future out of other contracts awarded in the course of construction of other units was no doubt too alien, contingent and remote to constitute pecuniary bias at the time of the decision

Direct pecuniary interests are when it is CERTAIN that a financial benefit will be realized: interests are not speculative or remote; they are not contingent on something happening

Indirect Pecuniary Interest

Pearlman Lawyer argues that the benchers have a pecuniary interest in finding him guilty

This is b/c if they find him guilty, he has to pay their costs—which are otherwise born by the law society and thus all practicing lawyers.

NO bias

If a financial interest is considered to be indirect, the RAOB test applies

Mere perception not enough “costs” are not profits or gains

rather reimbursement for expenses that uncovered a legit ground for sanction

The “costs” become property of the law society as a whole not benchers individually

Costs awarded make up only .04% of law society budget so it would make a nominal difference in fees only

Thus ability to award costs in and of itself does not create bias

Minister Decisions: direct or indirect?

Imperial Oil

Ministers will NOT be seen to have a direct pecuniary interest, even where named as litigants, if they are exercising a political function – ie: they are acting in the public interest and exercising broad discretion in a non-adjudicative context. They can always have a personal direct interest though… i.e. if they own a company and then exercise discretion in a way that benefits it.

CUPE 2003

However, where a Minister is involved, as part of a cost-cutting Cabinet, in a labour dispute, then this interest could be a direct interest

Personal or Business Relationships With Those Involved in the DisputeCase Facts Held RsnsBennett and Doman Allegation of bias b/c

securities commissioner is a majority shareholder in an alleged competitor company.

If it can reasonably be perceived that because of the relationship the D/M may be consciously or unconsciously inclined to favour or disfavor a particular outcome = RAOB

Consider: Nature & degree of

business or personal relationship

Prior Knowledge or Involvement of Decision Maker at Earlier Stages Issue Case Ratio Notes FactsCan a D/M rehear when it is quashed and sent back?

BCNU Generally, no bias will result from a D/M rehearing a case sent back for a breach in PF.

However, this is an exception b/c made a finding of credibility—thus need new D/M to avoid bias.

D/M made credibility ruling

There was a breach of PF

D quashedPersonal involvement of the D/M in specific subject matter

Committee for Justice and Liberty

RAOB

Consider: Nature and degree of the prior involvement How relevant was it and what was the depth and

nature of the relationship How Recent

Director of NEB previously worked for a company that was applying for a pipeline

Conducted a study on whether or not there should be a pipeline in that area only 5 months previous

Wewaykum NO bias

Type of D/M key: Strong presumption of judicial impartiality and thus a high threshold to prove RAOB

Judges should generally not preside over a case in which they played a part.

Time was a factor, this was 15yrs in the past

Connection was not very specific

He was never counsel

Played no active role

Did not plan the strategy

Responsible for 1000s of files at the time

Can’t realistically think there is bias

Binnie was in charge of all litigation against Canada from 82-86

Involved with a claim that many years later went to the SCC

Over-lapping functions

Brosseau Where there are overlapping functions within an ADM, this likely gives rise to bias b/c can’t be impartial if you already know everything about the case.

Note that statutory authorization was a complete defence in this case.

Securities commission investigating B’s prospectus

Staff of commission reviewed situation, made report, gave it to chair

Commission decided to hold hearing

Chair then proposed

to sit on the hearing.

Attitudinal Predisposition (Pre-Judgment) & Different Standards for Different Contexts Issue Case Ratio Notes FactsUse of Statistics

Turoczi Bare statistics without more are not evidence of bias.

Statistics may not take into account how cases are assigned etc.

Also no one suggested any of the cases had been wrongly decided

Could just be luck of the draw that this member gets all the bad cases

RAOB test is an “informed” person so they would know statistics don’t necessarily show bias, only uninformed would think that.

Report shows immigration board member very rarely grants refugee status

Similar Personal Dispute

Gale Where a D/M has made a unique claim and then has the opportunity to decide a case, they are in a position to vindicate their own case. Thus = bias.

Woman law prof complainant at HRT for institutional sex discrimination in the past

Has written extensively on the subject

Now she is on the board for the HRT

Deciding on a similar sex discrimination case to her own.

Thus employed same counsel as complainant i.e. the HRT

Academic Writings

Gale No determination on writing given as case was decided on the similar personal dispute issue.

Francis Someone who has previously expressed views through academic work on the subject matter is not automatically disqualified on account of bias, as this actually may make them more qualified for the job.

Board members writing was criticizing the system generally and not specifically the applicants country of origina.

Immigration officer had previously written ‘critical’ writings of the refugee system

Used country of origin of applicant as an example

Expressed views that mass immigration threatens Canadian society.

Asked applicant during hearing why she had not applied earlier

Comments during investigation & hearing

Francis It is necessary to contextualize comments made during a hearing to determine if they give rise to bias

No bias here b/c the comments were part of a reasonable inquiry.

when she knew other people from her country who had received refugee status.

Chretien View the comments cumulatively to see if they give rise to a RAOB

Bias found here D/M found to be so

preoccupied with media and keeping the spotlight on the inquiry that the fairness of proceeding was affected.

During a public inquiry, justice made numerous unwise media statements

Very colourful language Making statements as

to what he had decided before the end of the hearing

Treating it as a ‘show’Municipal Counsellors and Policy Boards:Relaxed Standard

Old St Bonafice

Where bias due to “pre-judgment” is claimed against a municipal counsellor, it is only when it can be proven they have made a final determination before hearing that bias will disqualify them.

Statute provides for hearing, but obv legislature would know counsellors run on political platforms so would have made statements about issues beforehand.

Thus leg cannot have intended normal bias test to apply

Municipal counsellors are just required to maintain an open mind so that they are capable of being persuaded and nothing more.

Save Richmond Farmland

A municipal counsellor is not disqualified from deciding b/c of bias unless it can be shown that they pre-judged the matter to the extent that they were no longer capable of being persuaded.

Minority held a municipal counsellor is entitled to have a closed mind… would have taken it further.

Alderman made comments to the effect that nothing said @ hearing could change his mind

But also said that something significant could change his mind

Nfld Telephone

For POLICY BOARDS bifurcated approach the Old St. Boniface test applies during pre-hearing stage: cannot have a mind so closed that submissions would be futile.

at hearing stage use the normal RAOB standard in the usual contextual manner—so would be pretty low standard

The state has an interest in appointing members that represent various interest groups in society, court shouldn’t impede this.

Vocal and colourful language made by member of rate setting board

Comments during hearing showed that he had made his mind up and was no longer capable of being persuaded thus BIAS

for policy board.Chretien This was a public inquiry, but DIDN’T use the bifurcated approach for policy boards…

Institutional ImpartialityIssue Case Ratio NotesTest Matsqui Will there be a reasonable apprehension of

bias in the mind of a fully informed person in a substantial number of cases?

If answer is no, then bias cannot be established on an institutional level and must be challenged on a case by case basis.

Factors Quebec Inc

Guarantees provided for in the legislation

Nature of disputes decided Other duties of the agency Whole operational context Plurality of functions not necessarily

problematic

Decided here that yes there was institutional impartiality problem, but basically didn’t consider the “operational context” just looked at hypotheticals, so not a good example.

IndependenceIssue Case Ratio NotesRoots Ref re

Prov Crt Judges

The unwritten constitutional principle of judicial independence is rooted in the preamble to the CA 1867, protects judicial independence of prov crts deciding civil matters.

Purpose Quebec Inc

The purpose of independence is to ensure impartiality and the appearance of impartiality

So if an institution isn’t sufficiently independent, it gives rise to RAOB as the institution no longer appears impartial

Focus Matsqui Focus is on the tribunal’s relationship with the executive branch of government.Application Matsqui Cannot be applied to all ADMs since some are actually PART of the executive (i.e.

Ministers) can only apply “where the tribunal is functioning as an adjudicative body settling disputes and determining the rights of parties.” Para 80

Test to determine independence

Matsqui Would an informed observer have a “reasonable apprehension of lack of sufficient independence”, thus giving rise to a RAOB in light of the Valente factors.

Use the Valente factors Security of tenure Security of remuneration Admin control

and apply them in light of the Nature of tribunal Interests at stake Other indices of

independence such as oaths of office

Security of Tenure Matsqui Only removable for cause and cause subject to independent review and full hearing

This is highest standard, what must be done for Courts.

Quebec Inc.

A decision making office for a “set term” (rather than for life) is still ok when the D/M is not at the level of a court and can only be dismissed early for cause.

Security of Remuneration

Matsqui Must be established by law so can’t be interfered with

This is highest standard, what must be done for Courts

Admin Control Quebec Inc.

Supervision by Minister is OK, doesn’t mean that the Admin body doesn’t have control. This is normal practice and essential for ensuring accountability.

Prematurity: When can you bring independence JR question?

Matsqui 4 judges: Need to consider not only the structure and procedure on the face of the

law But also have to consider the “operational reality” So have to wait and see how the tribunal actually works (i.e. they have to

have made at least some decisions) before you can bring an action2 judges:

Only need to look at the legal structure of the tribunal Don’t need to see how it actually functions first Irrelevant if it would actually happen or not, just asking what is possible.

Consitutional or Quasi Constitutional guarantees

Quebec Inc

Apply the independence test above and test the results against what is guaranteed.

Here the Quebec Charter s.23 guaranteed an “independent and impartial tribunal”.

Ocean Port

The unwritten constitutional guarantee of independence flowing from the preamble does not extend to administrative tribunals.

Sk fed of Labour

Even where a tribunal functions quite near the judicial divide it still is not guaranteed independence by the unwritten consti.

Labour Relations Board at issue here.

Statutory guarantee ATA ss 1-10

May provide a statutory guarantee of independence if they apply.

Statutory Authorization Defence and Use of “Rights Documents” to Override that DefenceIssue Case Ratio NotesOver-lapping function

Brosseau Where a statute explicitly or by necessary implication provides for over-lapping functions, this is a complete defence to bias.

Can argue about what is authorized by the statute vs what actually occurred to get around this defence.

Policy: Court may be more willing to recognize stat authorization defence where nature of ADM and D is protecting a less serious interest… here was economic…

Pecuniary Interest

CUPE Statutory language that is clear and unequivocal prevails over the common-law.

Statute authorizes Minister themselves to appoint arbitrators… so even if this is bias, is authorized!

Independence Ocean Port

Where a statute expressly provides for arrangements of tenure, remuneration and admin independence, statutory authorization provides a complete defence to a lack of independence claim.

Trump statutory authorization

MacBain Statutory language that explicitly authorizes bias can be over-ruled by the constitution or quasi-constitutional document like the CBR (used here)

Use test from Singh for s.2(e) of the CBR(1) Are “rights and obligations” being

decided on? Here yes b/c deciding whether

Macbain complied with obligation not to discriminate

(2) Are they afforded a fair hearing in accordance with PFJ? Here no b/c there is bias due to

appointing the judge for their own cause

Other DefencesNecessity and Waiver: Can also make a defence to bias by saying necessity, i.e. there is no other possible D/M or waiver, where the claimant earlier waived their claim against bias (must be done clearly and with knowledge).