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Table of Contents
The Interests Engaged ............................................................................................................. 2
Comparing and Contrasting Standard of Review and Procedural Fairness: ................... 2
Rules of Statutory Interpretation ............................................................................................ 2
Procedural Fairness: ............................................................................................................... 2
Duty of Procedural Fairness: .............................................................................................. 2
Content of procedural fairness: .......................................................................................... 3
Reasonable apprehension of Bias ...................................................................................... 3
Remedies .................................................................................................................................. 4
Impartiality, Independence and Institutional Decision-Making ............................................. 4
Structural independence ..................................................................................................... 4
Standard of Review: ................................................................................................................. 4
Distinguishing between appeals and judicial review ......................................................... 5
The Evolution of Standard of Review: ................................................................................ 5
CUPE v New Brunswick Liquor (1979) ............................................................................... 5
Southam (1996) ................................................................................................................. 5
Pushpanathan (1998) ......................................................................................................... 5
Toronto v CUPE (2003) ...................................................................................................... 6
Dunsmuir (2008) ................................................................................................................ 6
Alberta Privacy Commissioner (2011) ................................................................................ 7
Standard of Review Analysis What is the appropriate standard of review? .................. 7
Two standards of review (Dunsmuir) .................................................................................. 7
Determining the standard of review aka Pragmatic and Functional approach ..................... 8
Applying the Standard of Review ........................................................................................ 9
Methods for analyzing reasonableness (Mowat) ................................................................. 9
Baker (1999) ...................................................................................................................... 9
Dunsmuir (2008) ...............................................................................................................10
Northrop Gumman v Canada (2009) .................................................................................10
Mowat (2011) ....................................................................................................................10
Newfoundland & Labrador Nurses Union (2001) ...............................................................10
Catalyst Paper (2012) .......................................................................................................11
Discretion ................................................................................................................................11
Step 1: Determine if there is a statutory grant of discretion ............................................11
Step 2: Determine the purpose of the grant of discretion ................................................11
Step 3: Evaluate use of discretion .....................................................................................12
Discretion Cases .................................................................................................................12
Baker v Minister of Citizenship and Immigration (1999) .....................................................12
Suresh v Minister of Citizenship and Immigration (2002) ...................................................12
Khosa v Minister of Citizenship and Immigration (2004) ....................................................12
CUPE v Ministry of Labour-Retired Judges (2003) ............................................................13
Nemeth v Canada (2010) ..................................................................................................13
Rule Making-Power .................................................................................................................13
Enbridge Gas Distribution v. Ontario (2005 Ont. CA) .......................................................14
Hierarchy of sources of rules or standards governing fair procedure: ................................14


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Thamotharem v. Canada ...................................................................................................14

The Interests Engaged

Standard of review represents the tension between RULE OF LAW (judiciary) and
PARLIAMENTARY SUPREMACY (administrative decision-makers, products of
statute/legislation)

Rule of law- parties should be able to challenge the exercise of state power before
independent judges otherwise fundamental rights may not be safeguarded
Judiciary may not be in a position to make decisions for the legislature: admin-decision
makers are created specifically for the purpose of providing alternative to courts and
judiciary is required to respect and preserve the integrity of the statutory scheme

Comparing and Contrasting Standard of Review and Procedural Fairness:
The content of the duty of procedural fairness seeks to ensure the appropriate
relationship between the citizen and the administrative decision-maker (decision-maker
is accountable to the individual). Procedural fairness does not require deference by the
reviewing court, subject to a standard of correctness.

The standard of review is about the relationship between the decision-maker and the
judiciary (decision-maker is accountable to the law). Degree of deference need only be
established under the standard of review.
Rules of Statutory Interpretation
o noscitur a sociis to know a thing by its associates
o ejusdem generiss of the same genus
o expression unius est exclusio alterius the expression of one thing to the exclusion of
the other
o avoid absurdity
o look to both French and English version
o presumption of constitutional validity
o principle of strict construction - in cases of ambiguity capable of two interpretations,
adapt interpretation most favorable to accused
Procedural Fairness:

Duty of Procedural Fairness:
3-prong test for determining if duty of procedural fairness is owed (Knight v Indian Head School
Division):
1. the decision is both administrative and final in nature
administrative decisions attract a duty of fairness while legislative decisions do
not
preliminary decisions do not trigger a duty of fairness


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2. the nature of the relationship between the tribunal and the complainant is one where the
complainant occupies a public position under statute and the tribunal can make
decisions affecting that position
public position fortified by statute
3. the decision is significant enough to have an important impact on complainants interests
need to identify interests involved

Content of procedural fairness:

If duty of fairness arises, what does it require in particular contexts?

The content enquiry has two elements
1. right to hearing (allege procedures that were denied) (audi alteram partem = hear
both sides)
Procedures that were denied:
notice
opportunity to respond
oral or in-person hearing may be more important when credibility is at
stake (Khan)
disclosure and discovery
evidence and cross-examination
right to counsel
decision on record and reasons
speedy hearing

2. right to neutral decision maker (any possible allegations of bias) (nemo judex in
causa sua = no one should be a judge in his own cause)

five factors to determine whether the standard for procedural fairness is met (Baker):
1. the nature of the decision being made and the process followed in making the decision,
2. the nature of the statutory scheme and the terms of the statute (greater procedural
protections will be required when no appeal procedure is provided within the statute, or
when the decision is determinative of the issue and further requests cannot be
submitted)
3. the importance and impact of the decision on the plaintiffs life,
4. the legitimate expectations of the plaintiff,
5. respect/deference to the procedural choices made by the administrative body.
Reasonable apprehension of Bias
Test: whether reasonable and properly informed person would form reasonable apprehension of
bias

Demonstrate bias through:
o Pecuniary bias
financial interest in case
o Prior association with party
o Prior association with case itself
o Attitudinal bias


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prior expressions of opinion indicating a mind so closed that any submissions
would be futile
o Institutional bias
not individual decision-maker but the institution as a whole
where the administrative structure performs several functions and statute
authorizes administrators to act in multiple capacities (functional overlap) may
lead to competing interests
o Personal/Political bias
bias surrounding elected officials

Propositions on Bias
(Newfoundland telephone)
elected members, such as municipal councillors, making decisions on policy matters, are
held to a more lenient standard than appointed officials who make adjudicative decisions
reasonable apprehension of bias if the plaintiff establishes that there has been a pre-
judgment of the matter to such an extent that any representations to the contrary would
be futile
decisions that are found to be made under a reasonable apprehension of bias will be
held void
Remedies
If procedural fairness was denied, court has remedy options:
quashing order send the case back (remitting) to original decision maker directing it to
remake decision in light of courts findings
prohibiting order for example preventing a deportation of someone whose immigration
status was wrongly decided
mandanamus compel authority to fulfill its duty, addresses wrongful failure to act
certoriori operates like an appeal, allows court to set aside decision
damages (rare cases =negligence or breach of statutory duty)
Impartiality, Independence and Institutional Decision-Making
Structural independence
The idea of judicial independence is well established
1. Have to have security of tenure so that will not be inclined to please your boss.
2. Need security of remuneration so have no pecuniary interest.
3. Need admin independence, so politicians and others cannot interfere with judges
decisions
But these considerations are not always applicable to Administrative decision-makers. Admin
decision makers sometimes do not have any of these guarantees as they may be elected for
terms, may be part-time employees and may be removed at pleasure, and are specifically
influenced by the legislature (Linda Keene, Ocean Port) enabling statute will determine the
level of independence
Standard of Review:



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Distinguishing between appeals and judicial review
Appeals are governed by statute (statutory right of appeal)
Common-law right to judicial review
In both cases, the question is how much deference must the court give to the primary
decision-maker.
Generally, if there is a right of appeal, this in itself seems to grant more power to the
court
if the statute is silent or contains a privative clause, this points to more deference.

Two stages:
(1) What is the applicable standard of review?
(2) What is the result of applying that standard to the decision at issue?

The Evolution of Standard of Review:

CUPE v New Brunswick Liquor (1979)
FACTS: A public sector union, Canadian Union of Public Employees (CUPE), went on strike.
Under the terms of the New Brunswick Public Service Labour Relations Act, striking employees
were prohibited from picketing and employers were prohibited from using replacement workers.
New Brunswick alleged that s.102(3)(a) of the Public Service Labour Relations Act shouldn't
prevent putting in managerial staff as replacement workers while union alleged Board didn't
have jurisdiction to interpret the 'with any other employee' wording" case.

CONTRIBUTION
patent unreasonableness standard introduced (Dickson)
categorical approach (patent unreasonableness v correctness)
courts should recognize and respect the fact that these specialized decision-makers
bear primary responsibility for implementing their statutory mandate and may be better
suited to the interpretive task than the generalist judge.
That which is in the range of possible outcomes is not patently unreasonable
focused on the meaning of the provision in the context of the statute, its purpose, and
the consequences of various interpretive options for the fulfillment of the legislative
scheme's objective
The shorthand description of CUPEs outcome is that a jurisdictional question is
assessed according to a standard of correctness, while questions within jurisdiction are
evaluated against a standard of "patent unreasonableness.
Patent unreasonableness standard applied because (1) expert tribunal, (2) clear
privative clause, (3) ambiguous and poorly drafted statutory wording on jurisdiction, so
the tribunal is "entitled to err"
Southam (1996)
Iacobucci introduces an additional standard reasonableness simpliciter
Factors should not be re-weighed
Pushpanathan (1998)
FACTS: Concerned the interpretation of a provision in the Immigration Act. Pushpanathan had
made a refugee claim in Canada. Before his claim was heard, he was convicted in Canada of
the offence of conspiracy to traffic in a narcotic. He was subsequently excluded from refugee
protection under article 1F(c) on the basis of his conviction. The issue in the case concerned


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whether "acts contrary to the purposes and principles of the United Nations" included a criminal
conviction for drug trafficking in the country of asylum.

CONTRIBUTION
No privative clause or right of appeal; could only go to judicial review with leave from
Federal Court judge
if leave was granted and the case heard, the losing party could only appeal to the
Federal Court of Appeal if the trial judge certified "a serious question of general
importance.
pragmatic and functional approach spectrum and 4 factors introduced
central inquiry is what was the legislative intent: provisions must be examined in the
context of the act as a whole
this case required review on a standard of correctness because it was a question of
general importance with a ability to impact a large number of claimants, grants a
statutory right of appeal
Toronto v CUPE (2003)
FACTS: Union employee was convicted in criminal justice system of sexual assault and this
would preclude him from working as rec instructor with children. Court had to determine if a
labour arbitrator could reinstate the employee after essentially re-litigating the case.

CONTRIBUTION
although an arbitrators decision to reinstate for failure to find just cause in a dismissal is
generally subject to a standard of patent unreasonableness, an error of law that may be
a factor in the decision can lead to a patently unreasonable outcome (as it did here)
must make a distinction between interpretation of the collective agreement (where the
arbitrators expertise lie) and interpretation of outside statute or the common law (where
the court is expert)
Le Bel: critique of the patent unreasonableness v reasonableness simpliciter distinction,
later resulted in change seen in Dunsmuir
Detailed pragmatic and functional analysis unnecessary where question at issue a
question of law of central importance and outside decision-makers specialized expertise
(para 62)
Dunsmuir (2008)
FACTS: Dunsmuir was dismissed from his civil service position in the Department of Justice.
Received severance but wanted duty of fairness prior to termination (only union employees
were entitled to this under statute but he was non-union). The adjudicator interpreted the
relevant statutory provisions thinking he could consider the reasons for discharge, even though
the employer did not say that Dunsmuir was dismissed for cause. The question was whether the
adjudicator was entitled to inquire into whether the employer actually dismissed Dunsmuir for
cause. The adjudicator determined that the statute authorized him to inquire into the reasons for
discharge as part of the grievance arbitration, but then went on to find that the dismissal was not
for cause anyway. One issue before the Supreme Court was the appropriate standard of review
for the question of law concerning the adjudicators authority to inquire into the reasons for
dismissal.
CONTRIBUTION
settling the correct approach for standard of review (previous distinctions were
untenable): correctness and reasonableness are the standards


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pragmatic and functional approach retained as standard of review analysis
Deschamps suggests that the approach for deference should be one where questions of
fact are allowed the greatest deference, questions of mixed law and fact are awarded
less deference and questions of law are awarded no deference (meaning that questions
of law are to be decided on a correctness standard)

Alberta Privacy Commissioner (2011)
FACTS: A commissioners enabling statute provided that an inquiry must be completed within
90 days of the complaint being received unless the Commissioner notifies the parties concerned
that he is extending the period an provides an anticipatory date. The question was whether the
Commissioner could specify the date after the 90 day period.

CONTRIBUTION
Questions of jurisdiction
Rothstein: Reasonableness standard used for the decision of whether the Minister can
extend the period after 90 days, deference was given because they were interpreting
own statute and timelines are not a constitutional question nor a question of central
importance
Rejects true vires test, it has not been used in any recent cases post-Dunsmuir
Binnie J. (Deschamps J. concurring) concept of jurisdiction is fundamental, but not
useful:
reasonableness will entail a spectrum of intensity of scrutiny, with the implication
that the application of a reasonableness review may, in appropriate cases, look
very similar to correctness review
a revision of the question of central importance to the legal system as a whole
exception to deference. Here, Binnie J. offers a broader and more generic
exception for questions of law that raise matters of legal importance beyond
administrative aspects of the statutory scheme under review and do not lie
within the core function and expertise of the decision maker
Cromwell even when interpreting its own home statute, a decision maker may be
subject to correctness standard

Standard of Review Analysis What is the appropriate standard of review?

Two standards of review (Dunsmuir)
*Emerged from Le Bels concurring judgment in Toronto v CUPE
1. Correctness
When to apply
Constitutional, human rights or civil liberties questions (Le Bel CUPE Toronto)
questions regarding common law
procedural fairness
Questions of law that are of central importance to the legal system as a whole
and outside the adjudicators expertise
Questions regarding the jurisdictional lines between two or more competing
specialized tribunals
Questions of jurisdiction/ true vires (does the statutory grant of power give the
tribunal the authority to decide the particular matter)
When not to apply (Dunsmuir)


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Grant of discretion
Question of fact
Policy question
where a tribunal is interpreting its own statute or statutes closely connected to its
function, with which it will have particular familiarity
2. Reasonableness
Existence of justification (did the decision-maker give reasons consistent with the
purposes of the statute)
Transparency and intelligibility within the decision-making process

Determining the standard of review aka Pragmatic and Functional approach
(Pushpanathan)
4 factors to be taken into account in determining appropriate standard of review:
1) presence of a privative clause (more deference)
states something to the effect: decisions of the tribunal are final and conclusive
grants no right of appeal and excludes judicial review

2) relative expertise of the decision-maker (if present and specialized, more deference
but must look at nature of the question)
characterize the expertise of the tribunal in question
characterize expertise of court relative to that of the tribunal
identify the nature of the specific issue before the administrative decision-maker
relative to this expertise to see who is better suited to settling the issue
when DM are Ministers, warrants deference because they have special expertise
that courts do not have: may know when it is better to give H&C exceptions and
may have a better idea about balancing public resources (Baker); may be privy to
confidential matters of national security (Suresh)
look at Board composition; do they have special skills that judiciary does not
have, i.e. economists (Southam); or experience in labour arbitration (Retired
Judges)

3) purpose of the provision and the Act as a whole
If statute or provision is polycentric - meaning that it engages a balancing of
multiple interests, constituencies, and factors, contains a significant policy
element, and articulates the legal standards in vague or open-textured language
-more judicial restraint is warranted.
Disputes that more closely resemble the bipolar model of opposition, i.e.
adjudicative model, between parties and interests justify less curial deference.
discretion-granting provisions are seen as polycentric insofar as the exercise of
discretion engages consideration of multiple factors

4) nature of the question (question of fact v. question of law v. mixed)
fact = deference; mixed = neutral; law = no deference (generally)
one clue that something is a question of law (rather than fact) is precedential
value serious question of central importance to legal system as a whole
(Toronto v CUPE questions around re-litigation affect legal system as a whole;
Mossop family status is a general question of law)



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What makes a decision patently unreasonable? When the patent unreasonableness standard
is being invoked, it is the highest standard of deference, meaning that the judiciary will only
interfere with the administrative decision-makers decision if that decision is patently
unreasonable, otherwise, the judiciary will defer to the primary decision-maker
Prima facie unreasonable
Unsupported by evidence
The result of improper procedure
Failure to consider proper factors (a reweighing or reconsideration of factors that were
originally considered will not suffice to vitiate the decision)

Reasonableness simpliciter vs patent unreasonableness:
Difference lies in the immediacy or obviousness of the defect (Southam)
If the defect in the decision is apparent on its face, it is patently unreasonable, otherwise,
if it takes some significant searching or testing to find the defect, then the decision is not
patently unreasonable (Khosa)

Applying the Standard of Review
Dunsmuir: Reasonableness is concerned mostly with:
a) the existence of justification, transparency and intelligibility within the decision making
process (for example: through reasons)
b) whether the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of facts and law

Methods for analyzing reasonableness (Mowat)
o Text-the statute and statutory interpretation
o Context
legislative history,
consistent understanding of statutory powers,
parallel legislation in other jurisdictions
o Purpose of the provisions

Baker (1999)
Test: Does the exercise of discretion fall within the boundaries set out by the words of
the statute and the values of administrative law? reasonableness will require an
assessment of the best interests of the child (para 67)
Analyzed the decision in light of 3 considrations:
(1) purpose/objectives of the act
objectives include to facilitate the reunion in Canada of Canadian citizens
and permanent residents with close relatives from abroad; would include not
breaking up families
(2) international law
take into account Conventions ratified by Canada i.e. Convention on the
Rights of the Child
(3) the ministerial guidelines
guidelines are a useful indicator of what constitutes a reasonable
interpretation
discretion is granted within certain boundaries


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Dunsmuir (2008)
Test: Does the decision fall within the range of possible outcomes? No, adjudicator failed
to take into consideration the fact that the employment relationship is governed by
private law (contract) and therefore cannot be subjected to a review for cause if an
employer did not allege cause
interpretation of the adjudicator was simply unreasonable in the context of the legislative
wording and the larger labour context in which it is embedded

Northrop Gumman v Canada (2009)
case involved issue of standing court quickly found that this is subject to standard of
correctness (jurisdictional issues)
correctness is then evaluated with regard to the statute
Mowat (2011)
FACTS: Supreme Court considered the interpretation of section 53(2)(c) of the Canadian
Human Rights Act. The provision authorizes a Human Rights Tribunal to order the offending
party to compensate the victim for any or all of the wages that the victim was deprived of and
for any expenses incurred by the victim as a result of the discriminatory practice. The question
was whether any expenses included the complainants legal fees.

CONTRIBUTION
o used standard of reasonableness:
interpretation and application of its own statute,
within its area of expertise,
did not raise issues of general legal importance
o interpretation of costs was not reasonable, took into consideration:
(1) text the legislation
words any expenses incurred by victim must be read in their statutory
context which revolves around reparations directly associated with the
discriminatory practice
costs is a legal term of art, it would have been used by the legislators if that
was the intent
monetary limits on awards wouldnt exist if legal costs were included
(because these can get much higher than limit)
(2) context:
legislative history (attempts to include costs in legislation were rejected)
Commission own consistent understanding of Tribunals power to award
costs (has understood that it does not have jurisdiction to award costs, has
been petitioning legislature for amendments to allow this)
Parallel provincial and territorial legislation (use of the word costs when they
mean costs)
(3) purpose
purposive interpretation cannot supplant a textual and contextual analysis

Newfoundland & Labrador Nurses Union (2001)
FACTS: Arbitrator had to decide whether time as causal employee could be credited toward
annual leave entitlement if nurse became permanent employee

CONTRIBUTION


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standard of review was reasonableness arbitrators interpretation of a collective
agreement
at issue was whether the reasons given were sufficient to satisfy the Dunsmuir criteria of
justification, transparency and intelligibility: court stated that if the reasons allow the
reviewing court to understand why the tribunal made its decision and permit it to
determine whether the conclusion is within the range of acceptable outcomes, the
criteria will be met
because the goal of grievance arbitration are speed, economy and informality, the
reasons given were sufficient, did not have to be extensive
Catalyst Paper (2012)
FACTS: A bylaw in Vancouver Island charged commercial owners significantly higher property
taxes than residential owners to alleviate strain on residents. But this put Catalysts business
interests in peril. Issue to be determined was whether the bylaw falls within the range of
reasonable outcomes.

CONTRIBUTION
standard of review was reasonableness both parties agreed
reasonableness must be assessed in the context of the particular type of decision-
making involved (policy) and all relevant factors
predictably, court gives a high degree of deference and refuses to change result
because this involves a policy decision of polycentric decision-making
all relevant factors were considered and weighed (social, economic, political issues),
court will not interfere
Discretion

The concept of discretion refers to decisions where the law does not dictate a specific outcome
or where the decision-maker is given a choice of options within a statutorily imposed set of
boundaries
Step 1: Determine if there is a statutory grant of discretion
Discretion explicitly stated in statute (rare)
The Minister may discretion vs. The Minister shall/must no discretion
Where the Minister is satisfied that (Baker)
Use of discretion is subject to reasonableness standard; high degree of deference
awarded
If there is an allegation that discretion was fettered or if Minister believes that there is
grant of discretion (but he does not have discretion), standard of review analysis does
not need to be engaged, because the decision is clearly incorrect

Step 2: Determine the purpose of the grant of discretion
must take into account the background and purpose of statute to determine scope of
discretion (Binnie J CUPE: Retired Judges)
where discretion is granted, there is the highest grant of deference, abuse of discretion
is linked the patent unreasonableness standard (Suresh)



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Step 3: Evaluate use of discretion
was it fettered? no analysis
was it reasonable? patently unreasonable standard
Discretion Cases
Baker v Minister of Citizenship and Immigration (1999)
where the minister is satisfied suggests wide grant of discretion to Minister for granting
H&C exemptions to deportation
applied the 4 factor pragmatic and functional analysis to determine that deference must
be on reasonableness simpliciter (no privative clause, individual rather than polycentric
decision)
Suresh v Minister of Citizenship and Immigration (2002)
FACTS: A provision of the Immigration Act (now IRPA) grants the Minister discretion to deport a
non-citizen who is deemed to be a threat to national security. The s. 7 constitutional issue was
whether the Minister could exercise his or her discretion to deport a non-citizen to a country
where that person faced a substantial risk of torture. A deportation decision in this context
consisted of various sub-questions:

Decision patently unreasonable if made arbitrarily, in bad faith, cannot be supported, or if
made without consideration of appropriate factors (para 29)
SCC holds it inappropriate to reweigh factors or interfere merely because it would have
come to different conclusion (para 29)
Baker distinguished as involving failure to comply with self-imposed ministerial guidelines,
as reflected in statute, treaty obligations, and published instructions to immigration officers
(para 36)
Raises the issue of segmentation: the decision is composed of understanding two different
statutes and therefore some questions are decided on a standard of reasonableness while
others are decided on standard of correctness:
A deportation decision in this context consisted of various sub-questions:
(1) What is the meaning of national security?
(2) Is the non-citizen a threat to national security?
(3) What does torture mean?
(4) Does the non-citizen face a substantial risk of torture?
(5) Does deportation of a non-citizen to torture violate s. 7 of the Charter?
The Court does not articulate a standard of review for steps 1 and 3, but emphasizes
that steps 2 and 4 attract deference, while step 5 is explicitly subject to correctness.

Khosa v Minister of Citizenship and Immigration (2004)
FACTS: A discretionary decision by the Immigration Appeal Division of the Immigration and
Refugee Board not to stay the deportation order of a non-citizen convicted of dangerous driving
causing death. The grounds for judicial review were enumerated in s. 18.1(4) of the Federal
Court Act. The statute was silent about the applicable standard of review, except that erroneous
findings of fact warranted relief if made in a perverse or capricious manner or without regard for
the material before it 28.
CONTRIBUTION
Majority (Binnie): Used reasonableness standard and engaged in pragmatic and


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functional analysis to determine the standard:
Privative clause: yes sole jurisdiction; no statutory right of appeal
Purpose: hear appeals, grant exemptions on H&C grounds
Did not want to reweigh factors, fit within range of possible outcomes
Dissent (Fish): decision was unreasonable he says he is not weighing factors, but crux
of judgment centers around weight of factors
CUPE v Ministry of Labour-Retired J udges (2003)
FACTS: The Minister had discretion to appoint labour arbitrators and choose to appoint retired
judges rather than arbitrators from an approved roster of arbitrators contrary to usual custom.
Minister argued that he had discretion to appoint arbitrators that he deemed must qualified. The
purpose of the Hospital Labour Disputes Arbitration Act was found to be to ensure a mutually
tolerable dispute resolution procedure and would require arbitrators who were impartial,
independent had labour relations expertise and general acceptability within the labour relations
community.

CONTRIBUTION
Binnie (majority the way in which discretion was exercised was patently unreasonable)
In looking at the scheme as a whole, it is clear that scope of the grant of discretion was
narrow (para 50)
Discretion was exercised in a way that frustrated the purpose of the legislative scheme
(para 206) to appoint persons who were impartial, independent and possessed labour
relations expertise
A court may intervene if it is clear that the Minister excluded relevant factors especially
where the factors ignored went to the very heart of the legislative scheme

Bastarache (dissent exercise of discretion was not patently unreasonable)
Patently unreasonable decisions must be obvious, should not require investigation
Grant of discretion is quite broad
On the patently unreasonable standard it is not up to the court to re-weigh factors
Argues that Binnie is really adopting a correctness standard
Nemeth v Canada (2010)
Assessed on reasonableness standard but found that minister applied wrong legal tests
Rule Making-Power

Regulations and guidelines are forms of delegated legislation developed by the executive
branch of government that typically do not set general government policy as statutes do, but
rather explain how statutes will work; they can be broken into 2 broad categories:

a) Hard-law-Regulations/rule
- Legally binding requirements that must arise from a statutory power
- ie: rules, regulations, bylaws, orders-in-council, etc
b) Soft Law- guidelines
- Developed by the executive but guidelines are not legally binding and power
doesn't come from a statute
- ie: tribunal guidelines, policy statements, interpretive bulletins, ect



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Baker: soft law can impact lives, as Minister-issued guidelines setting out the bases on which
immigration officers should decide whether an individual deserved H & C consideration, and
these were important for L'Heureux-Dube J. in deciding the limits on the discretion to be
exercised under the federal Immigration Act
Failure of the DM to take into account its own guidelines for H&C considerations was evidence
to LHeureux-Dube that the decision was unreasonable

Enbridge Gas Distribution v. Ontario (2005 Ont. CA)
FACTS: argued that Ontario Energy Board had no jurisdiction to make gas distribution rules
under its enabling statute, in particular the provisions concerning billing customers for gas
commodity sales and distribution services

CONTRIBUTION
o First, the Court decided on a correctness standard of review, both on a true vires approach
and through conducting a pragmatic and functional analysis

o Here, on substance (ie: no jurisdiction), the words of the enabling statute accorded ample
jurisdiction on the Board to make billing provisions and this interpretation is harmonious
with the scheme of the Act and the intent of the legislature [para 31] (purpose of the act
was: regulate all aspects of the gas distribution business, not simply those aspects that
involve a direct business relationship with gas vendors).

o Here, on procedure (ie: no 2
nd
notice and comment opportunity), the prior notice
requirement was sufficient as it allowed a reasonable opportunity to make written
submissions and there was evidence of considerable participation

Pushpanathan pragmatic and functional analysis should be used in adjudicative matters, not in
rulemaking, as rulemaking (prospective) is entirely different from adjudication (retrospective)
Hierarchy of sources of rules or standards governing fair procedure:
Constitution
Constitution Act, 1867 and 1982 (including Charter)
Statutes
Quasi-constitutional statutes (Human Rights Code)
General procedural statutes (statues of general application that explicitly
recognise procedural obligations, but they generally just codify the common law
and so are not very forceful)
Enabling statutes and regulations (the statute that sets up the professional
regulatory bodies may set out rules of procedure e.g. college of physicians act.
But are often silent on procedure, so it is all left to the common law).
Common law
Administrative body rules and practices

Thamotharem v. Canada
Issue was whether Guidelines on the order of question of refugee claimants compromised the
independence of the Board. The Court found that the Guidelines were authorized by law
(delegated legislation). The legislature that conferred the discretion could lawfully limit it via
authorized Guidelines.


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Subject to standard of correctness
Guidelines may not constitute fettering
Cannot be mandatory but can limit scope of discretion by stating relevant considerations
(like in Baker)