Administrative Law
Christopher Scott
University
of
Victoria
Faculty
of
Law
2011
Administrative Law
Table of Contents
BACKGROUND
POLICY
PROCEDURAL REVIEW
Threshold Issues
4
4
4
Content Issues
Specific Content Issues: Pre-Hearing
Specific Content Issues: At the Hearing
Specific Content Issues: Post-Hearing
5
6
7
9
Bias
10
Lack of Independence
13
SUBSTANTIVE REVIEW
14
14
Pre-Dunsmuir Precedents
Privative Clauses
Statutory Appeals
The Pragmatic and Functional Approach
Critiques
16
16
16
16
17
18
INDEX OF CASES
19
Administrative Law
Background
Evocation
in Quebec
Policy
Administrative Law
Procedural Review
Policy and Background
(Knight)
(Knight)
(Knight)
(Knight)
(Knight)
Threshold Issues
Administrative Law
Preliminary decisions generally do not attract a duty of procedural fairness, but (Knight)
v Court will consider factors to determine whether PF is still appropriate:
(Re Abel)
o Proximity between preliminary and final decision; does prelim. determine final?
If recommendations are made, proximity is high
(Irvine)
o Possible exposure of the person investigated at prelim. stage to harm.
If its public and reputations are at stake, exposure is high. Otherwise, no (Irvine)
v Example: Preliminary psych review is vital in making final decision re:
institutionalization. PF applies; has a right to see [some of] his psych file.
(Re Abel)
o The relationship existing between that body and the individual
(Knight)
This includes policy reasons for applying a duty of procedural fairness (or not)
(Knight)
This includes reference to the grounds for the tribunals action and the general context (Knight)
These are treated the
e.g. The context of collective agreements/etc is seen to make the idea of "office-holders
same as employees
at pleasure" being dismissible without reasons or cause anachronistic. Suggests duty. (Knight)
now (Dunsmuir)
o The effect of that decision on the individuals rights, privileges or interests
(Knight)
This must be significant and important (e.g. termination of employment)
(Knight)
Decisions affecting property rights have a long history of scrutiny by the courts
(Cooper)
Dickson CJ: Whenever personal or property rights are targeted directly, adversely
and specifically, procedural fairness is required to some degree.
(Homex)
Licensing Decisions: These break down into three categoies:
(McInnis)
Forfeiture: Existing right is lost for a reason relating to the individual; PF applies (McInnis)
v Example: Mom on welfare loses subsidized housing due to noisy kids.
(Webb)
v The longer the right has been held, the stronger the entitlement to PF
(Winneke)
Pure application: Only an application has been made, no expectation/slur; no PF (McInnis)
v Example: Denial of a license application to be a boxing manager. This is
discretionary; lots of factors, nothing in scheme suggests denial = bad character (McInnis)
Expectation: Theres a reasonable expectation for a favourable decision. PF applies
v There are two meanings attached to Legitimate Expectations; PF applies to both:(Baker)
o Substantive: Reasonable expectation of a certain outcome.
E.g. Applying for renewal of a licence for which you still qualify high PF
o Procedural: Expectation of certain procedures due to promises or past practices
Individual needs to know about the old practice to claim an expecation
(Baker)
There is no need for detrimental reliance on the expectation
(Baker)
The past practice must be clear, unambiguous and unqualified
(CUPE)
v Cant use doctrine in a way that affects Parliaments ability legislate effectively (CAP Ref)
v Cant use doctrine to demand substantive outcomes, only procedural safeguards (CAP Ref)
o Trick: A promise of an outcome can be seen as an exercise of that discretion; the
court can then grant mandamus and require the tribunal to follow through (Mt Sinai)
Slur: Negative decision will reflect negatively on the rep. of the applicant. PF applies
Remember, this is just the v Example: Denying Dr. hospital rights would cast a slur on reputation
(Hutfield)
threshold issue applicants
(Lazarov)
are either getting to be v Example: Denial of citizenship app. for undisclosed security reasons
heard or are getting reasons v Example: Refusal to renew an annual fishing licence for past misconduct
(Everett)
for their denial.
v Example: Revocation of a pardon
(Desjardins)
Administrative Law
Administrative Law
o Security of the Person: covers bodily integrity and state actions that impose "serious
psychological stress".
(NB Minister of Health)
Objective Test: Would a reasonable person experience much more than ordinary stress and
anxiety (not necessarily to the level of nervous shock or illness).
(NB Minister of Health)
Must be serious in kind and degree. Merely being subject to proceedings is not sufficient(Blencoe)
o Principles of Fundamental Justice:
Being in accordance with the PFJs has two meanings:
(Singh)
Procedurally: Are the procedures provided in accordance with the PFJs?
(Singh)
v PFJs are roughly the same as the common law duty of procedural fairness
(Singh)
v The PFJs guarantee a fair process w.r.t. the context and possible consequences(Charkaoui)
Substantively: Is the deprivation itself (i.e. the outcome) consistent with the PFJs?
(Singh)
Generally: Consider the following factors when determining whether PF was met: (Charkaoui)
Nature of the proceedings
(Charkaoui)
The seriousness of the interest at stake (this is the overriding interest)
(Charkaoui)
The PFJs may require the right to counsel, depending on the following factors: (NB Minister)
Seriousness of the interest at stake (e.g. child custody is very serious)
Complexity of the proceedings (e.g. 15 days of hearings is very complex)
Capacity of the party to self-represent (e.g. parents in child custody cases; low capacity)
The PFJs include the procedural right to hear the case against you.
(Charkaoui)
The PFJs seek to reduce the risk of judicial error.
(Charkaoui, NB Minister)
Analysis: Challenges under s. 7 have a three-step analysis:
(Singh)
o Has the state deprived or threatened to deprive the claimant of an enumerated right? If so (Singh)
o Was that deprivation in accordance with the principles of fundamental justice? If not
(Singh)
Balancing societal interests happens under s. 1, not here
(Charkaoui)
o Is the breach saved by Charter s. 1? Apply the Oakes test here.
(Singh, Oakes)
Where gross harms are found under the PFJ analysis, s. 1 gets pretty short shrift (NB Minister)
This also fails to be saved where a scheme is not minimally impairing
(Oakes, Charkaoui)
Example: Tribunal denies refugee rights. No oral hearing, no provision of reasons. Section 7
infringed. PFJs not met procedurally or substantively, s. 1 fails. Sent back for oral hearing.
(Singh)
Example: Ministers can sign a security certificate against a non-citizen resulting in indefinite
detention or deportation. Before signing, court conduct reasonableness review, but cant be
there when national security information is discussed. Right to liberty engaged. PFJs not met
because (1) doesnt know the case against him and (2) the judge doesnt get to hear both sides.
Section 1 fails; not minimally-impairing, could just have lawyers with clearance.
(Charkaoui)
Example: accused of sexual harassment. Takes 32 months to start hearing, hearing itself is 2
years. No Charter interest engaged (not stressful enough for security of the person).
(Blencoe)
Example: Mom on welfare has kids taken by Minister, fighting for custody but cant get legal aid.
Security of the person engaged (serious psych. stress), PFJs not met (serious interest, complec
hearings, low capacity), s. 1 fails (gross harms). State ordered to fund her counsel(NB Minister of Health)
Content Issues
Historically, the court was concerned with natural justice. This has two limbs:
o Hearing Rights: The rights to be heard and to hear the case against you (audi alteram partem)
o Rule against Bias: Right to an impartial trial (nemo judex in sua causa)
General Framework for assessing the content of the duty of fairness:
(Baker)
o Nature of the decision and the process followed (discretionary/policy vs. judicial/legal)
(Baker)
Discretionary decisions requiring multiple factors have low PF
(Baker)
o Nature of the statutory scheme and the terms of the statute empowering the tribunal
(Baker)
If there is no appeal, then that's a factor towards needing procedural fairness.
(Baker)
5
Administrative Law
Provisions that operate as exceptions to the normal scheme require less procedural fairness(Baker)
o Importance of the decision to the individual affected (impact). Most important factor!
(Baker)
Example: is Jamaican, has 4 kids in Canada, applying for exemption from deportation.
All other factors were against her, but serious impact granted [written] hearing rights.
(Baker)
o Legitimate expectations of the person affected
(Baker)
Recall: Cant be used to get a substantive result, but can get promised procedures.
(CAP Ref)
o Process actually adopted and institutional constraints.
(Baker)
Must give important weight to the choice of procedures made by the agency itself.
(Baker)
What will the administrative impact of imposing stronger procedures be?
(Baker)
This factor is not determinative.
(Baker)
Specific Content Issues: Pre-Hearing
Notice:
o Form: The best form of notice is probably written, although this factor isnt very important.
Prof: As long as the form provides notice and isnt prejudicial the court wont care.
o Manner of Service: Best manner of service is personal service with affidavits.
Mass Notice (e.g. advertising) may be acceptable if large groups need to be notified, so
long as the intended people are likely to be notified.
(Ontario Hydro)
Example: Unreasonable to require every individual notice to every resident in a
schools area of an intention to close the school. Must make it generally known in the
area such that it will come to the attention of interested individuals.
(Re Hardy)
o Timing: Needs to be received by the party long enough in advance to give the party a chance to
determine whether to participate (if not mandatory), and to actually prepare to participate.
More complex or serious issues will require more time to prepare.
Example: Notice to arrived late; limitation period passed while response was still in the
mail. Treated as if no notice given adjournment granted, still able to pursue action. (Torchinsky)
Example: Notice to arrived late; files appeal anyways, court uses general remedial
discretion to permit the appeal to proceed (i.e. it recognized the notice as adequate but
permitted the action to proceed anyways)
(Re Rymal)
o Content: Needs to say when and where the person may be heard, and include some information
on the case to be met. Court will consider all the circumstances, including the position of the
party to be notified (Chester) and the nature of the process in question (Krever)
Example: Prisoner being reviewed for violent behaviour, may be moved to another prison.
Receives notice mentioning one incident; prisoner prepares submissions on that issue, but at
the hearing is presented with several incidents. Court overturns due to ambiguous notice (Chester)
Example: Vet gives s horse prohibited drug. races horse, stewards ban that horse
pending a review by Ont. Racing Commission. ORC gives notice, gets license suspended
(more serious penalty). Notice didnt mention this penalty, but court says that should have
known it was possible was an experienced racer.
(Ex Parte Taylor)
Example: OH moving high-power lines, considering alternate routes, puts up mass notice
ads in alternate route areas to notify residents. Ads only say Southwestern Ontario, dont
notify residents that they specifically are in alternate route areas. Ambiguous.
(Ontario Hydro)
Example: Commission hearing evidence re: HIV in blood supply. At the end, invites parties
to confidentially advise re: misconduct by other parties. Confidentially provides those
parties with notice, gives them a chance to response, then issues public findings of
misconduct. This process was mentioned early on, and all parties had counsel. Public
findings do not claim to establish criminal guilt or civil liability. Notice before hearings
began wasnt possible, as it depended on conduct during hearings. As a result, court finds
that the notice given was sufficient, with regard to the nature of the process in question (Krever)
6
Administrative Law
Administrative Law
Public Hearings: Open hearings are preferred, even for disciplinary hearings.
o In camera hearings might be appropriate for where safety, national security, dignity (esp. with
sexual assault complainants), police informants or commercially sensitive matters are involved.
Right to Counsel: May be a right to state-funded counsel (NB) or just to be represented (Howard).
o Factors to consider:
(NB Minister)
Seriousness of the interest at stake
(NB Minister)
Complexity of the proceedings
(NB Minister)
Capacity of the party to self-represent
(NB Minister)
Are there contrary factors, such as a need for speed or informality?
(NB Minister)
o Example: Welfare mom in child-custody case; 15 days of hearings. Counsel granted (NB Minister)
o Example: Prisoner presented with vague charges (incl. 3 charges for one act), may extend jail
time. Liberty interest at stake, fairly complex, limited capacity. Counsel granted.
(Howard)
Disclosure of the Case Against and Access to Agency Information:
o Parties have a right to hear and respond to the evidence against them at the hearing.
(Kane)
o This right is not absolute; disclosure may be denied where there are confidentiality concerns,
or where it might harm the party requesting it (e.g. certain doctor's reports)
(Napoli)
Confidentiality Concerns: Will disclosure cause a chilling effect?
Harm to Requesting Party: This is a paternalistic concern that is of reduced weight today
o PFJs may require disclosure that is adequate to allow the party to respond, dep. on context. (Napoli)
Example: Disability claim for workers comp. requests medical records, gets only a
summary without names or quotes. PFJs override conf/harm concerns, disclosure ordered (Napoli)
o Example: Prof is suspended, has a hearding before Board. After Prof leaves, President adds
facts and answers questions. Inadequate disclosure; Prof had right to hear and respond.
(Kane)
o Example: National security certificates hearing. CSIS adds evidence (interview summaries)
while in camera ( not present). Baker factors suggest high PF very severe impact, judicial
context, etc. Files must be disclosed (and CSIS has to stop destroying them!), but need to be
censored by judge to remove sensitive national security info.
(Charkaoui 2)
Admissibility of Evidence: Tribunals are not bound by the law of evidence (unless statute says so)
o BC ATA: Permits any evidence that the tribunals considers relevant, necessary and
appropriate, whether or not a court would admit it. Recall: ATA not always applicable. (ATA s. 40)
Exception: Legal privileges are preserved if s. 40(3) is applicable.
o However, PF may require that certain evidence be inadmissible (as a procedural safeguard)
Cross-Examination: A right to cross-examine in oral hearings is axiomatic, but it may be denied.
o Adversarial (or otherwise court-like) tribunals are likely to require cross-examination.
(Innisfil)
Innisfil was heavily statutory, so mention that as a caveat along with this principle!
(Innisfil)
If a statute makes reference to a right to cross-exam or a right to oppose (even if limited),
courts are happy to apply the right to cross-examine more broadly on the basis of PF.
(Innisfil)
o BC ATA: Grants cross-exam. rights where reasonably required for full/fair disclosure (ATA s. 38)
o Example: Estimated population projection adduced by witness. No cross-exam given. Statute
grants cross-exam. rights and the right to object. Court: Breached PF not to grant cross-exam
here; objecting parties should be given a chance to examine that witness.
(Innisfil)
o Example: Regulatory commission hears expert report from side A, but expert isnt available for
cross-exam. Commission lets in an expert report from side B in response. No cross-exam
necessary; low PF required, both sides having independent experts is a good substitute.
(MacLab)
The Limits of Trial-Type Hearings: Adversarial processes are good for historial fact-finding,
but not so great for policy-balancing. Sometimes, administrative processes really are better.
Administrative Law
Futility: The court will not speculate regarding the outcome. Saying that the breach of PF
doesnt matter because the outcome wouldnt have changed will not be accepted.
(Innisfil, Cardinal)
o Procedural fairness is required by natural justice; its a freestanding right.
(Lakeside Hutterites)
o Exception: If there is only one possible outcome as a matter of law, then a remedy may be
denied due to legal futility. This is a high bar to meet.
(Mobil Oil)
Discretionary Aspects of Remedies: There are six grounds on which a court can refuse to grant a
remedy on a discretionary basis (notwithstanding a remedy otherwise being deserved):
o Mootness: If the issue has otherwise been resolved, there is no remedy to grant.
Example: Claiming right to counsel for an action that has ended.
(NB Minister of Health)
o Delay: At common law, applications for judicial review that are delayed unreasonably and
prejudicially to other parties may be denied. Some jurisdictions also have statutory time limits:
Federally: Time limit of 30 days, extendable at courts discretion (Federal Courts Act s. 18.1(2))
BC ATA: Time limit of 60 days, extendable at courts discretion
(ATA s. 57)
BC generally: There is no time limit on an application for judicial review, unless another
statute has a time limit that applies (still subject to the common law prejudice rule) (JRPA s. 11)
o Misconduct: This is sort of a version of the "clean hands" equitable doctrine. Its pretty rare.
Example: Homex wins in law, but their disingenuous practices (splitting land up to avoid
bylaws) resulted in a remedy being denied due to misconduct.
(Homex)
o Waiver: A party may waive the right to procedural fairness. This is also rare (esp. non-express)
A waiver must be clear. The party must be aware of the consequences and indicate consent.
If a party is represented by counsel and a right to object was clear, then a failure to object
might be found to be an implied waiver, due to conduct. Otherwise, silence is not waiver.
o Prematurity [of application]: Courts engage in judicial review as a last resort. They prefer to
let tribunals fix their own errors, and wont grant review until the tribunal has actually decided.
9
Administrative Law
Bias
The Rule Against Bias: This is one of the two branches of natural justice (p. 5).
o Nemo judex in causa propria sua debet esse: No one ought to be a judge in his own cause.
o This rule applies to all administrative decision-makers, not just quasi-judicial ones. (Energy Probe)
o This rule varies depending on the context; higher for courts than discretionary bodies (Imperial Oil)
o The Standard: Must avoid the reasonable apprehension of bias (RAoB).
This has a two-part objective test
(Baker, RDS):
The notional person considering the alleged bias must be reasonable; and
v View the matter realistically and practically
(Baker)
Baker is citing
v
Be
informed
of
all
relevant
circumstances
(Baker,
RDS)
Committee for
Justice and
v Have thought the matter through
(Baker)
Liberty v.
v
Not
have
a
very
sensitive
or
scrupulous
conscience
(RDS)
National
Energy Board
The apprehension of bias must also be reasonable in the circumstances of the case
Ask: Would the above person think that it is more likely than not that the [decisionmaker], whether consciously or unconsciously, would not decide fairly?
(Baker)
o Defining Bias: Not all preconceptions are impermissible; the test is directed at determining
what constitutes a disqualifying bias in the particular circumstances of the case
(Imperial Oil)
Disqualifying bias is a state of mind that is predisposed to a particular result or is closed
with regard to particular issues. Impartiality = disinterest in outcome, open to persuasion. (RDS)
This is about independence of thought, not institutional structure (that falls under the
independence analysis; see Lack of Independence, p. 13)
(Bell Canada)
o The onus of proof is on the party alleging bias
(RDS)
o Example: Judge comments that white police officers sometime mislead the court in cases with
black s. SCC: No RAoB; just observing the racial dynamic (4JJ), close to the line (2JJ) (RDS)
10
Administrative Law
Administrative Law
hearing, and policy-writing. Overlapping functions of these lawyers causes RAoB (Quebec Inc.)
Example: Chair instructs staff to investigate companies, then reviews report and decides
whether to hold a hearing, then sits on the hearing panel. Court wants to make statute work
(economic reg.), finds that the statute allows this by necessary implication.
(Brosseau)
Statutory Authorization Defence and the Use of Rights Documents to Override It:
o Note: Everything said under Statutory Authorization and Rights Documents (p. 4) applies here.
o A statute may expressly or by necessary implication require or allow the circumstances giving
rise to bias
(Brosseau)
o Example: Statutory authorization allows overlapping functions (see above). Statute is left
standing, no constitutional override (note: AB, not federal, so no CBR)
(Brosseau)
o Example: Statutory authorization allows overlapping functions. Court applies Quebec Charter
and applies the institutional impartiality test: Would an informed person, viewing the matter
realistically and practically, and having thought the matter through, apprehend a real likelihood
of bias in a substantial number of cases? Court concludes no; sharing lawyers is fine. (Quebec Inc.)
This is different from Brosseau; its under the Quebec Charter, and it might apply to CBR
This test considers the worst-case possibility, not the specifics of what happened in the case
o Example: HR Committee decides which complaints to send to HR Tribunal, Committee Chair
also gets to pick whos on the Tribunals panels and appears before them. RAoB found, but
statute authorizes scheme. CBR s. 2(e) applies fair hearing for determination of rights (MacBain)
o Example: Minister of Labour gets to appoint arbitration panellist in health labour disputes.
Financial bias alleged (could want to pay health workers less). Statutory authorization.
(CUPE)
Attitudinal Bias (Pre-Judgment): Unless a precondition of the position, its probably bad.
o Example: applies for tenure, other profs asked for their opinions. Someone with a negative
opinion gets put on tenure committee. No RAoB theyre supposed to have opinions.
(Paine)
o Example: Feminist HR advocate wrote extensively on social issues, was a party to a
discrimination complaint that was stalled. She gets put on a panel reviewing a similar systemic
discrimination complaint at another company. She withdraws as a party from the complaint, but
its too late she has an interest in the 1st complaint, and cant be put on a panel where she has
a chance to create a precedent that can be used in that case. Writings not a factor.
(Great Atlantic)
o Example: Police officers suing city to remove mandatory retirement at age 60 because it isnt a
bona fide requirement. City argues it is. Panellist has expressed views that mandatory
retirement for professors is not bona fide. No RAoB Experts shouldnt be excluded merely
because they have expressed views in the field, plus this doesnt indicate pre-judgment.
(Large)
Variations in Standards Used To Test For Bias:
o Relaxed Test for bias: In cases of alleged pre-judgment where elected decision-makers
(e.g. municipal councilors) are concerned, the standard is whether they have amenable to
persuasion" and do not have a closed mind.
(OSBRA, Save Richmond)
Mere statements of support one way or the other do not indicate a closed mind need to be
able to show that the person is incapable of change
(OSBRA)
Example: Alderman says that it would take something significant to change his mind.
This doesnt meet the closed mind test still possible to change mind.
(Save Richmond)
o Bifurcated approach: In cases of policy-oriented boards regarding comments that board
members make prior to a hearing, use the relaxed approach. They must abide by the normal
RAoB standard once a hearing has actually started.
(Newfoundland Tel)
Example: Adjudicator at rate-setting hearing says corp. directors are paid too much, decides
against rate increase. Not an elected position; applies bifurcated approach, finds RAoB (Nfld Tel)
o Example: Gomery (retired J.) makes neg comments in the media regarding the s (investigating
them after political scandal). Mid-to-High PF reps of high-profile people. RAoB found. (Pelletier)
12
Administrative Law
Lack of Independence
This refers to a lack of institutional independence, which concerns the relationships between
tribunals members and others. Individual independence is just impartiality, covered above (Bell Canada)
Test: Is there a reasonable apprehension of a lack of sufficient independence? Factors:
(Valente)
o Security of tenure for members
(Valente)
Fixed terms of any length are fine. "At pleasure" terms generally arent
(Quebec Inc.)
Unless its a statutory requirement and no rights document overrides, of course (Ocean Port)
Contracts or Orders in Council at just as good as statutes for establishing tenure
(Quebec Inc.)
Example: Old board soon to be abolished, new board being put in place. Old members are
eligible to be hired by govt. Not a factor against independence for old board.
(Sethi)
Prof: But might the old members start deciding in favour of the govt to curry favour?
Example: Chair of Tribunal has the power to extend board members positions until the end
of the case(s) theyre currently hearing. No lack of independence someone needs to do
this, and the moment the decision is rendered is when the term ends, so no bias.
(Bell Canada)
o Financial security of members
(Valente)
Example: Prosecutor also decides who sits on the panel; panellists are hired on a per-case
basis. Financially dependent on prosecutor may try to curry favour to get put on panels
more often (and thus get paid more). Technically fixed terms, but also a tenure issue (MacBain)
o Independence administrative arrangements that are closely related to judicial functions (Valente)
This would include the assignment/scheduling of cases, etc.
(Valente)
Example: Many points of contact between Minister and tribunal (they report to Min, Min
approves policies, etc). This is just Ministerial oversight; no concern for bias.
(Quebec Inc.)
Standard to apply:
o Test must be applied flexibly, with regard to the operational reality (i.e. actual circs.) (Quebec Inc.)
o This is assessed from the perspective of the same notional person who assesses impartiality;
reasonable, informed, realistic, practical, non very sensitive, etc
(Quebec Inc.)
Restrictions on the Valente test:
o It only applies to tribunals that are "court-like" and have adjudicative functions
(Valente)
o Like other tests, it needs to be applied flexibly with regard to the context
(Valente)
Statutory Authorization: Statutes may set out tenure, remuneration and independence
o There is no generalized constitutional guarantee protecting administrative independence (Ocean Port)
Rights docs may still apply, they just need a different [protected] right to be in issue
Note: Ocean Port was in BC, so only the Charter was at issue. No CBR.
(Ocean Port)
o BC ATA ss. 2-10 include provisions setting out remuneration and tenure.
(ATA ss. 2-10)
Example: Matsqui (Aboriginal tax body): No firm decision on independence.
(Matsqui)
o 2/9 JJ say it fails the test because it has high PF (court-like) but no tenure or remuneration terms
o 4/9 JJ say it passes the test because as an operational reality theres no RALSI on the facts.
13
Administrative Law
Substantive Review
The Dunsmuir Approach
Policy: Court is trying to unaddress the tension between the Rule of Law and functionalism (Dunsmuir)
o Courts must ensure that administrative bodies operated within the power that they have been
granted. Balance is achieved by giving deference on non-jurisdictional questions
(Dunsmuir)
Statutory Appeals: The Dunsmuir framework applies (unless theres a statutory SOR)(Nolan, Bell Aliant)
Standards of Review (SOR):
(Dunsmuir)
o Correctness: No deference at all. Figure out what should have happened, then order it. (Dunsmuir)
o Reasonableness: A deferential approach.
(Dunsmuir)
In applying this standard, courts must inquire into the following factors:
The tribunal's process of articulating the reasons: Consider the existence of
justification, transparency and intelligibility
(Dunsmuir)
The outcomes reached: Does the decision fall within a range of possible outcomes
that are defensible in light of the facts and the law?
(Dunsmuir)
Courts deny that the reasonableness SOR is actually a broad range of SORs that vary based
on the context, but that seems to be how they treat it.
Example: Due to the considerable deference owed to the board, its decision fell within
the range of reasonable reasonable decisions
(Khosa)
Example: Tribunal considering statutory interpretation. Has expertise, privative clause,
etc, so reasonableness applies, but the interpretation was deeply flawed, unreas. (Dunsmuir)
Test for determining which standard of review to apply: Use the first one that applies:
(Dunsmuir)
o Statutory SORs: It is open to the legislature to specify the SOR
Jurisdictional Questions: Specifying a non-correctness SOR will likely be unconst.(See Crevier)
BC ATA: Specifies SOR for tribunals with a privative clause and without.
(ATA ss. 58, 59)
These provisions preserve the patent unreasonableness standard
(Manz)
FCA s. 18.1(4): Sets out grounds of review, not SORs. Dunsmuir still applies.
(Khosa)
o Shortcut: Has the jurisprudence already determined the SOR for this category of question?
Trick: If the Court wants to, it will distinguish cases from established categories with pretty
flimsy excuses. e.g. Decision 1 involves a tribunal interpreting a pensions act; correctness.
Decision 2: same tribunal, but interpreting pension contract. Reasonableness.
(Nolan)
Reasonableness will usually apply automatically in the following categories:
(Dunsmuir)
Questions of fact
This is effectively every type of question except for questions of
Questions of discretion
law, and even those sometimes fall under reasonableness!
Questions of policy
Questions of mixed law and fact
v Try asking whether the answer will provide a legal precedent or not. The more
unique the answer is the specific facts, the more likely it is to be mixed.
(Southam)
v A question of mixed law and fact often consist of applying the law to the facts.
Deference is generally deserved here. e.g. determining costs is a mized question (Smith)
v Example: Asking whether what did was unprofessional conduct is a question of
mixed fact and law; applying legal definition to the facts.
(Ryan)
Reasonableness will apply to questions of law in the following categories:
Always: Where a tribunal is interpreting its own statute[s] which is closely connected to
its functions with which it will have a particular familiarity.
(Dunsmuir)
This is most relevant Sometimes: Where a tribunal has developed particular expertise in the application of a
with the tribunals
general common/civil law rule in relation to a particular statutory context
(Dunsmuir)
home statute
v Example: Adjudications in labour law may fall under this rubric.
(Dunsmuir)
14
Administrative Law
Costs: Absent strong factors for correctness, costs will use reasonableness SOR
(Smith)
v Costs are usually discretionary and mostly fact-based (but they may be law, too) (Smith)
Correctness will apply to questions of law automatically in the following categories:
Constitutional questions
(Dunsmuir)
"True" questions of jurisdiction or vires
(Dunsmuir)
v Narrowly defined: Does the tribunal have the authority to make this decision?
v Must not return to the pre-CUPE broad jurisdictional question analysis.
(Dunsmuir)
v Example: Determining whether theres jurisdiction to hear a particular dispute from
particular parties is a matter of true jurisdiction.
(Northrupp)
Questions of general law that are of central importance to the legal system and are
outside the tribunals area of specialized expertise.
(Dunsmuir)
Questions of the jurisdictional lines between two specialized tribunals
(Dunsmuir)
Factors pointing to a reasonableness SOR on a question of law are:
(Dunsmuir)
A privative clause (i.e. statutory direction indicating the need for deference)
v This is a strong, but not determinative factor in favour of deference.
(Dunsmuir)
v An exclusive jursdiction clause is like a weak privative clause. Still deferential. (Khosa)
v If there is no privative clause, this has neutral effect (doesnt suggest correctness)(Khosa)
Discrete and special administrative regime that the tribunal has special expertise in
v Example: Labour relations arbitration
(Dunsmuir)
The nature of the question of law: if it is not of central importance to the legal
system ... and outside the ... specialized area of expertise of the tribunal, it may
attract the reasonableness SOR if the above two factors are also in favour.
o Full Analysis: If the above shortcuts dont solve the problem, consider these factors:
The presence or absence of a privative clause
An exclusive jurisdiction clause is like a weak privative clause. Still deferential.
(Khosa)
If there is no privative clause, this has neutral effect (no SOR suggested)
(Khosa, Dr Q)
An appeal provision is the opposite of a privative clause, suggests high PF (Pushpanathan)
The purpose of the tribunal as determined by interpretation of enabling legislation
Prof: Note that this has changed from the old P&F test (so prior caselaw isnt as useful)
Broadly discretionary language in a regulatory context can be construed as a purpose of
forming public policy, which has very low PF.
(Pezzim)
v Example: The tribunal may do X or Y. Discretionary.
(Ryan)
If the statute requires the tribunal to select from a range of remedial choices, low PF (Dr Q)
Where the purpose is to protect the public, low PF
(Dr Q)
Where the issues are policy-centric, low PF
(Dr Q)
Where the tribunal must consider "all factors it considers relevant", low PF
(Dr Q)
Where the tribunal must consider scientific or technical issues, low PF
(Dr Q)
Example: Immigration board hears a wide range of imm. appeals. Low PF
(Khosa)
Example: CRTC has broad powers to regulate telecoms (statute uses any a lot,
privative clause, expertise). Purpose is broad-scale economic regulation
(Bell Aliant)
Example: Self-regulating professional bodies (e.g. Law Societies) are entitled to
deference in their decisions
(Ryan)
The nature of the question at issue (this depends on courts characterization)
Does the statute use discretionary language?
(e.g. Bell Aliant)
Complexity of the regulatory scheme and the tribunals expertise are relevant here. (Nolan)
Specialized or economic sectors of activity have a low PF.
(Nolan)
Trick: If the tribunal deals with individual rights, but for whole groups of people (e.g.
pensions), then the importance gets reduced (and, with expertise, suggests low PF)
(Nolan)
15
Administrative Law
Compare
these two:
Court is
using smoke
and mirrors
Example: Question is whether H&C reasons warrant special relief (i.e. not getting
deported). This is dealing with a "discretionary privilege" (to waive reqs.). Low PF (Khosa)
Example: Question is whether an exemption from deportation should be granted on the
basis of H&C reasons. This is dealing with individual rights. High PF.
(Baker)
Example: Question regarding types of employee termination. Not of central
importance to the legal system. Low PF
(Dunsmuir)
Example: Where a legal definition is given in economic terms, its really more an
economics question than a legal question (and so expertise applies, low PF)
(Pezzim)
The expertise of the tribunal (expertise => low PF)
This is the most important factor
(Southam)
Expertise is reinforced if youre dealing with the tribunals home statute.
(Dunsmuir)
Policy: Jurisdiction shouldnt be as broad as in CUPE. Dont overdo correctness (Dunsmuir)
Example: Labour arbitration board considering types of termination. Expertise. (Dunsmuir)
Example: Immigration board considering if H&C factors apply. Expertise (Khosa, Dunsmuir)
Example: A Law Society panel made up of lawyers has specialized expertise, since
judges arent practising lawyers. Esp. if theres a lay member on the panel
(Ryan)
Pre-Dunsmuir Precedents
CUPE: Expanded the meaning of jurisdictional question and added the SOR of patent
unreasonableness (PU). This was a move towards judicial deference.
o Later cases retreated back towards the Rule of Law approach (e.g. Bibeault)
o Pezzim recognized a spectrum of SORs, from PU to correctness (later rejected in Ryan)
Southam: Added the standard of "reasonableness simpliciter" (RS).
Pushpanathan (SCC 1998): Court adopted the "pragmatic and functional approach".
o 3 SORs: Correctness, PU, and RS; the SOR must be determined first, before any anything else.
o Factors to consider in selecting a SOR:
The wording of the enactment that confers jurisdiction on the tribunal
The purpose of the statute that creates the tribunal & the reason for the tribunals existence
The area of expertise of the tribunal members
The nature of the problem before the tribunal
Dunsmuir (SCC 2008): Reformed the P&F approach to include a number of circumstances where
the SOR did not need to be determined first, and combined PU & RS into reasonableness.
Privative Clauses
Questions within the tribunals core jurisdiction are reviewable on the PU SOR.
(CUPE)
o Example: Interpreting ambiguity in the home statute is within that jurisdiction. PU
(CUPE)
o Interpretation of provisions that limit or confer jurisdiction are outside of the tribunal's core
jurisdiction, and must be reviewed on the correctness standard.
(Bibeault)
Statutory Appeals
Cases where there is a right of appeal and no more expertise than the court: correctness SOR (Pezzim)
Cases where there is a privative clause, the matter is within the tribunal's specialized expertise, and
no statutory right of appeal: PU SOR (lowest PF)
(Pezzim)
Despite appeal provisions, should apply the whole P&F approach to determine the SOR
(Southam)
The Pragmatic and Functional Approach
No longer looking for jurisdictional questions; any question that satisfies the P&F approach is a
jurisdictional question. Its an outcome, not a prerequisite.
(Pushpanathan)
There is no spectrum of available SORs; just the 3 points on the spectrum.
(Ryan)
Framework:
(Pushpanathan)
16
Administrative Law
o Purpose: To determine legislative intent was this question intended to be left entirely to the
discretion of the tribunal? If so, apply deference. Otherwise, apply correctness.
o Application: Apply test to question raised by the specific provision the tribunals interpreting.
o Factors: None of these are determinative
Privative clause [or an appeal provision]
Expertise [relative expertise on the specific question at issue]
This is the most important factor. Consider the following:
v The composition of the tribunal
v Are the members appointed because of their expertise?
v Does the composition make the decision-making process very different from judicial
decision-making?
o Having a lay-person on the Board shifts the analysis towards deference, since
they're explicitly there for non-judicial decision-making.
(Ryan)
o Prof: This could go under expertise or under purpose
v Are the procedures court-like or non-court-like?
v What is the Board's relative expertise in regards to the particular question at issue?
o Example: No one is more expert than the courts on human rights. (Pushpanathan)
o Purpose of the Act as a whole and of the provision in particular [the polycentricity principle]
Deference is suggested if the tribunal is involved in:
interest-balancing between competing groups
policy-creation
broad regulatory functions
Example: Evaluating refugee claims isnt policy-determiantion, and interests aren't being
balanced. The question is "does person X have right Y?". This is a judicial purpose(Pushpanathan)
o Nature of the problem: Question of law? Question of fact? Question of mixed law/fact?
Pure questions of law lean towards the correctness SOR. If the other factors don't establish a
different standard (or they're ambiguous), then correctness should be SOR.
(Pushpanathan)
Pure questions of fact are generally highly deferential.
Mixed questions of fact and law require a balancing act: Is it more factual or legal? The
more factual it is, the more that deference is supported.
Example: Appeal provision + discretionary terms
Critiques
Lebel Js cri de couer: The process for determining the standard of review is too unwieldy!
o Why always apply the whole P&F approach? If it's clearly an important question to the legal
system as a whole and it's outside of the Board's expertise, why not just hold it to correctness
and be done with it?
o This is affecting the reputation of judicial review law in Canada. There's lots of confusion
between PU and RS, it's ambiguous and it's exacerbating litigation.
17
Administrative Law
Development:
o Pre-Baker, discretionary decisions were reviewed on two bases:
(Roncarelli)
Genuine Exercise: This was an infrequent and fact-based inquiry. Issue include:
Rule against sub-delegation: The empowered party must be the one to use the power
Rule against abdication: No one can dictate the empowered partys exercises of power
Rule against fettering: The empowered party must fully exercise their discretion; they
must not fetter the discretion with blind adherence to an internal policy.
Legality: Proper authorization of the discretion. The courts would ensure that:
The power was exercised for proper purposes
The decision was not made on the basis of irrelevant or extraneous considerations
All relevant considerations were taking into account (i.e. all the considerations
required by the statute, implicitly or explicitly)
The discretion was not exercised in bad faith, arbitrarily or capriciously.
o Example: Premier of Quebec gets liquor board to revoke s licence because s a Jehovahs
Witness. Errors: improper purpose, irrelevant consideration, bad faith, dictation.
(Roncarelli)
o Pre-Dunsmuir, discretionary and non-discret. decisions were reviewed on the P&F approach (Baker)
Today, its really just a very, very deferential reasonableness standard.
A discretionary decision is only reviewable (and then only on a reasonableness SOR) if:
(Suresh)
o It was made arbitrarily or in bad faith
o It cannot be supported on the evidence
o The tribunal failed to consider the appropriate factors
The Court will not reweigh factors if the decision was discretionary.
(Suresh)
Baker breaks this, but Suresh explains this away as a special case, claiming that Baker
just found some implicit primary factors that werent considered
(Suresh)
Example: Immigration board considered each factor required by statute. Court refused to
re-weight; no factors were missed, so the decision is not reviewable.
(Khosa)
Example: Statute requires Minister to appoint a person to a labour arbitration panel who he
thinks is qualified to act. Court finds that the statute implicitly requires consideration of
the persons qualifications, as well as the acceptability of the person to the parties. Unreas.(CUPE)
Unreviewable discretionary powers:
o Exercise of the Crown prerogative for the purpose of national security was unreviewable
(CCSU)
o Later: Crown prerogative to advise the Queen on conferral of honours was reviewable
(Black)
The source of the power (legislative vs. prerog.) doesnt matter subject matter does.
Security/war-related subjects are not reviewable. Individual-related exercises are.
18
Administrative Law
Index of Cases
Short Name
Ct./Year
Keywords
19
Page