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Canadian Administrative Law Outline

A. SOURCES OF ADMINISTRATIVE LAW..........................................................................7


Roncarelli v. Duplessis [1959] SCR 121.....................................................................................................7
No such thing as unfettered Ministerial discretion..................................................................................7
Crevier v. Quebec [1981] 2 S.C.R. 220.......................................................................................................7
Judicial Review a constitutionally protect right.......................................................................................7
B. PROCEDURAL REVIEW.....................................................................................................8
OUTLINE:...................................................................................................................................................8
1. Introduction..................................................................................................................................................10
i. Fairness: The Threshold..............................................................................................................................10
Base precedent for the right to duty of fariness.....................................................................................10
2. Common Law Duty of Fairness..................................................................................................................11
Nicholson v. Haldimand-Norfolk (Regional) Police Commissioners [1979] 1 SCR 311.........................11
Recognized the existence of a common law duty of fairness................................................................11
Knight v. Indian Head School Division No. 19 (1990) SCC.....................................................................11
Setup 3 factors for determining is a duty of fairness exists...................................................................11
Baker v. Canada (Minister of Citizenship and Immigration) (1999) SCC ...............................................12
Adds to factors to Knight Factors for determining the content of duty of fairness...............................12
3. Common Law Duty of Fairness: Was a Duty Owed?...............................................................................15
Canada (Attorney General) v. Inuit Tapirisat of Canada (1980) SCC.......................................................15
Presumption against notice or hearing if statute is silent.......................................................................15
Homex Realty and Development Co. Ltd. v. Wyoming (Village) (1980) SCC........................................15
Presumption of right to be heard is statute silent when sealing with property rights............................15
Bezaire v. Windsor Roman Catholic Separate School Board (1992) ON Div Ct .....................................16
Agreement to follow guidelines created legitimate expectations..........................................................16
Canadian Association of Regulated Importers v. Canada (A-G) (1994) CA............................................16
Setting quotas policy decision: no duty of fairness...............................................................................16
Re Webb and Ontario Housing Corporation (1978) ON CA ....................................................................17
Duty of fairness: notice but no necessarily hearing ..............................................................................17
Hutfield v. Board of Fort Saskatchewan General Hosp (1986) (Alta. QB) ..............................................17
4. Common Law Duty of Fairness: Hearing..................................................................................................19
Re Abel and Advisory Review Board (1979), 97 DLR (3d) 304..............................................................19
Take into account Bureaucratic Structure .............................................................................................19
Dairy Producers Co-operative Ltd. V. Saskatchewan (Human Rights Commission)[1994] 4 WWR 90. 19
Procedural protection does not apply to investigations.........................................................................19
Irvine v. Canada (Restrictive Trade Practices Commission) [1987] 1 SCR 181.......................................20
Administrative investigation efficient – procedural fairness limited.....................................................20
Reference re Canada Assistance Plan [1991] 2 SCR 525..........................................................................20
Legitimate expectations cannot be used when dealing with policy decisions.......................................20
Furey v. Roman Catholic School Board for Conception Bay Centre (1991), 2 Admin. LR (2d) 263......21
Must show reason for reliance to argue legitimate expectations...........................................................21
Mount Sinai Hospital v. Quebec (Minister of Health and Social services) [2001] 2 SCR 281.................21
Assurance that permit will be issued used as evidence of decision.......................................................21
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*Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour) [2003] 1 S.C.R. 539
....................................................................................................................................................................21
Must be strong evidence of past practice for legitimate expactations to justified.................................21
*Congregation des temoins de Jehovah de St-Jerome-Lafontaine v. Lafontaine (Village) [2004] S.C.J.
No. 45.........................................................................................................................................................22
Legitimate expectations create procedural guarantees but no substantive............................................22
5. Principles of Fundamental Justice: Bill of Rights.....................................................................................22
National Anti-Poverty Organization v. Canada (Attorney General) (1990), 60 DLR (4th) 712...............23
Only those whose rights are directly affected may invoke s.2(e)..........................................................23
Singh v. Canada (Minister of Employment and Immigration) [1985] 1 SCR 177....................................23
Outline of s.2(e) argument ....................................................................................................................23
*Authorson v. Canada (Attorney General) [2003] 2 S.C.R. 40.................................................................24
Bill of Rights can be overridden with explicit wording in legislation...................................................24
6. Choice of Procedures...................................................................................................................................25
Statutory Powers Procedure Act - General Statutes about Protection......................................................25
Goldberg v. Kelly 397 US 254 (1970).......................................................................................................26
Choice of procedure will take into account balance between loss and Gov’t interest...........................26
Mathews v. Eldridge 424 US 319 (1976)..................................................................................................26
Disability benefits not considered necessity of welfare and guaranteed choice of procedure- need
serious loss.............................................................................................................................................26
Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3 ........................................27
Clearly says that if you want to do a section 7 analysis, it is necessary to do the Baker analysis ........27
i. Notice..........................................................................................................................................................28
Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System in Canada – Krever
Commission) [1997] 3 SCR 440................................................................................................................29
Nature of Notice depends on specific context – stage of hearing..........................................................29
ii. Discovery - Disclosure..............................................................................................................................30
CIBA-Geigy v. Canada (Patented Medicines Prices Review Board) [1994] 3 FC 425 (CA)...................30
Economic Decision subject grant low procedural fairness....................................................................30
Ontario (Human Rights Commission) v. Ontario (Board of Inquiry into Northwestern General Hospital)
(1993), 115 DLR (4th) 279........................................................................................................................31
More Adjudicative the process, more disclosure necessary..................................................................31
iii. Delay.........................................................................................................................................................31
Kodellas v. Saskatchewan (Human Rights Commission) (1989), 60 DLR (4th)......................................31
Potential of prejudice against individual as result of delay...................................................................31
iv. Oral Hearing.............................................................................................................................................32
Masters v. Ontario (1994), 18 OR (3d) 551...............................................................................................32
Although oral hearing may be expected, appointment at pleasure affords little procedural protection 32
Khan v. University of Ottawa (1997), 34 OR (3d) 535.............................................................................33
Issues of credibility will warrant guarantee of oral hearing..................................................................33
v. Confidentiality...........................................................................................................................................33
Re Napoli and Workers’ Compensation Board (1981), 126 DLR (3d) 179..............................................33
Loss of Employment and allows breach of confidentiality...................................................................33
Gallant v. Canada (Deputy Commissioner, Correctional Service Canada) (1989), 36 Admin. LR 261.. .34
Circumstances of the case may lower the duty to disclose (fairness)....................................................34
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Gough v. Canada (National Parole Board) (1990), 45 Admin. LR 304.


*Charkaoui (Re) (F.C.) [2004] 3 F.C.R. 32...............................................................................................34
If duty to disclose (fairness) violates, must show evidence to justify the use of section 1....................34
7. Institutional Decisions: Consultations.......................................................................................................35
International Woodworkers of America, Local 2-69 v. Consolidated-Bathurst Packaging Ltd. [1990] 1
S.C.R. 282..................................................................................................................................................35
Conditions for Consultation to meet duty of fairness............................................................................35
Tremblay v. Quebec (Commission des affaires sociales) [1992] 1 S.C.R. 952.........................................36
Compulsory consultation breach of duty of fairness.............................................................................36
Ellis-Don Ltd. V. Ontario (Labour Relations Board) [2001] 1 S.C.R. 221...............................................36
Discussion of facts of case violation of duty of Fairness.......................................................................36
Payne v. Ontario (Human Rights Commission) 192 D.L.R. (4th) 315......................................................37
Exceptional circumstances for examining how Commission came to decision when protected by
deliberate secrecy...................................................................................................................................37
*Pritchard v. Ontario (Human Rights Commission) [2004] S.C.J. No. 16................................................37
Participation in Consulation process negates Solicitor-client privilege................................................37
8. Bias................................................................................................................................................................37
i. Actual Bias..................................................................................................................................................38
Re Energy Probe and Atomic Energy Control Board et al. 15 D.L.R. (4th) 48........................................38
Proof of Actual Bias requires direct and conclusive evidence .............................................................38
ii. Apprehension of Bias................................................................................................................................38
Committee for Justice and Liberty v. Canada (National Energy Board) [1978] 1 S.C.R. 369..................38
Reasonable Apprehension of Bias of an individual exists if reasonable probability of impartiality.....38
Canadian Pacific Ltd. V. Matsqui Indian Band [1995] 1 S.C.R. 3............................................................39
Test for Institutional Reasonable Apprehension of Bias.......................................................................39
Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817......................................40
Reasonable Apprehension of Bias resulting from evidence used that is comes from biased source.....40
Re Paine and University of Toronto 115 D.L.R. (3d) 461.........................................................................40
Further example of Reasonable Apprehension of Bias..........................................................................40
Great Atlantic & Pacific Co. of Canada v. Ontario (Human Rights Commission) 13 O.R. (3d) 824.......40
Known views on a subject can be used as evidence of Reasonable Apprehension of bias...................40
Large v. Stratford (City) 9 O.R. (3d) 104..................................................................................................41
Need for qualified board members vs. evidence of reasonable apprehension of bias...........................41
Old St. Boniface Residents Assn. Inc. v. Winnipeg (City) [1990] 3 S.C.R. 1170.....................................41
Actual Bias must have evidence of actual business relationship...........................................................41
Save Richmond Farmland Society v. Richmond (Township) [1990] 3 S.C.R. 1213................................41
Closed mind during hearing will lead to Reasonable Apprehension of Bias........................................41
Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities) [1992] 1
S.C.R. 623..................................................................................................................................................42
Statements made during hearing evidence of Closed Mind...................................................................42
iii. Statutory Authorization............................................................................................................................42
Brosseau v. Alberta [1989] 1 S.C.R. 301...................................................................................................42
Reasonable Apprehension of Bias in relation to statutory authority.....................................................42
2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool) [1996] 3 S.C.R. 919..............................43
Reasonable Apprehension of Bias created where indv. Both prosecutor and adjuticator.....................43
E.A. Manning Ltd. v. Ontario Securities Commission 125 D.L.R. (4th) 305...........................................43
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Reasonable Apprehension of Bias created when going beyond statutory authority..............................43


MacBain v. Canadian Human Rights Commission et al. 22 D.L.R. (4th) 119..........................................44
Statutory Authorization fails as defence when violation of section 7 and section 2(e) of BofR...........44
9. Independence................................................................................................................................................44
Alex Couture Inc. v. Canada (Attorney-General) 83 D.L.R. (4th) 577.....................................................44
Actual Decisions made will determine presence of Independence........................................................44
Canadian Pacific Ltd. V. Matsqui Indian Band [1995] 1 S.C.R. 3...........................................................45
Factors for determining Independence...................................................................................................45
2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool) [1996] 3 S.C.R. 919..............................45
Substance influence will determine Independence................................................................................45
*Ocean Port Hotel Ltd. V. British Columbia (General Manager, Liquor Control and Licensing Branch)
[2001] 2 S.C.R. 781 (Referred to at 671 in text but not excerpted)...........................................................45
Explicit legislation may strip right of independence – unless a constitutional right.............................45
*Bell Canada v. Canadian Telephone Employees Assn. [2003] 1 S.C.R. 884..........................................46
Tribunal implementing gov’t policy factor in determining Independence............................................46
C. SUBSTANTIVE REVIEW...................................................................................................46
1. Defining the Standard.................................................................................................................................46
Pragmatic and Functional Approach (Pushpanathan v. Canada)...................................................................46
.......................................................................................................................................................................50
Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation [1979] 2 SCR
227..............................................................................................................................................................50
Foundation Case moving away from Jurisdictional Analysis................................................................50
Union des employes de service, local 298 v. Bibeault [1988] 2 SCR 1048..............................................51
Establishment of Pragmatic and Functional Approach..........................................................................51
United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd.
[1993] 2 S.C.R. 316...................................................................................................................................51
Privative Clause cannot absolutely prevent Judicial Review................................................................51
Canada (Director of Investigation and Research, Competition Act) v. Southam Inc. [1997] 1 S.C.R. 748
....................................................................................................................................................................52
Establishes Reasonableness Standard....................................................................................................52
Pushpanathan v. Canada (Minister of Cirizenship and Immigration) [1998] SCR 982............................52
Defines 4 factors for Pragmatic and Functional Approach....................................................................52
Canada (Deputy Minister of National Revenue – M.N.R.) v. Mattel Canada Inc. [2001] 2 SCR 100......53
Expertise concern the issue rather than the tribunal..............................................................................53
Dr. Q v. College of Physicians and Surgeons of British Columbia [2003] 1 SCR 226.............................53
Questions of Fact low Defernce.............................................................................................................53
Law Society of New Brunswick v. Ryan [2003] 1 SCR 247.....................................................................53
Application of P & F and Reasonableness Standard of Review............................................................53
*Barrie Public Utilities v. Canadian Cable Television Assn. 225 DLR (4th) 206....................................55
Characterization of the Question will determine direction of the P & F Approach..............................55
*Toronto (City) v. C.U.P.E., Local 79 232 DLR (4th) 385.......................................................................56
Error in law: Standard of Correctness....................................................................................................56
*Voice Construction Ltd. v. Construction & General Workers Union, Local 92 238 DLR (4th) 217......56
Standard of Review based on P & F approach: correctness..................................................................56
*A.U.P.E. v. Lethbridge Community College 238 DLR (4th) 385...........................................................57
Generic standard will not determine standard of review.......................................................................57
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*Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services) 242 DLR (4th) 193..............57
Standard of Review question of law cannot be pre-determined by parties............................................57
2. Applying the Standard................................................................................................................................58
Canada (Attorney General) v. Mossop [1993] 1 SCR 554........................................................................58
Applying Standard of Correctness.........................................................................................................58
Nanaimo (City) v. Rascal Trucking [2000] 1 SCR 342.............................................................................58
Standard of Correctness to Stat. Interp. Standard of PU applied to discretion......................................58
Canada (Director of Investigation and Research, Competition Act) v. Southam Inc. [1997] 1 S.C.R. 748
....................................................................................................................................................................59
Application of Reasonbleness Standard.................................................................................................59
National Corn Growers Assn. v. Canada (Import Tribunal) [1990] 2 SCR 1324.....................................59
Application of Patently Unreasonable Standard....................................................................................59
Domtar Inc. v. Quebec (Commission d’appel en matiere de lesions professionnelles) [1993] 2 SCR 756
....................................................................................................................................................................60
Under Standard of Patently Unreasonable decision can be inconsistent based on the facts..................60
Toronto Board of Education v. Ontario Secondary School Teachers’ Federation, District 15 [1997] 1
SCR 487.....................................................................................................................................................60
Under Standard of Patently Unreasonable court takes a fact based approach.......................................60
Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817.....................................61
Application of Reasonableness standard...............................................................................................61
3. Constitutional Jurisdiction of Tribunals...................................................................................................61
*Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board)
v. Laseur [2003] 2 SCR 504......................................................................................................................61
Implied or Explicit jurisdiction to answer Qs of law will allows Constitutional jurisdiction...............61
*Paul v. British Columbia (Forest Appeals Commission) [2003] 2 SCR 585...........................................62
May answer Constitutional questions but standard is correctness.........................................................62
*Haida Nation v. British Columbia (Minister of Forests [2004] SCJ No. 70............................................62
4. Obligation to Exhaust Statutory Remedies...............................................................................................62
* Bourdon v. Stelco [2005] SCJ No. 35.....................................................................................................62
Must exhaust Administrative Remedies before pursuing legal actions.................................................62
* Vaughan v. Canada [2005] 1 S.C.R. 146................................................................................................63
Must exhaust Administrative Remedies before pursuing other legal actions........................................63
Harelkin v. University of Regina [1979] 2 SCR 561.................................................................................63
Administrative Remedy must be exhausted before judicial remedy.....................................................63
Canadian Pacific Ltd. v. Matsqui Indian Band [1995] 1 S.C.R. 3............................................................63
Procedural Review: all decision; Substantive Review: current decision...............................................63
Shore Disposal Ltd v. Ed de Wolfe Trucking Ltd. (1976), 72 DLR (3d) 219...........................................64
5. Discretion......................................................................................................................................................64
Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3.........................................64
Conditions imposed on decision maker when exercising discretion.....................................................64
Re Sheehan and Criminal Injuries Compensation Board (1973), 37 DLR (3d) 336.................................64
Discretion unchallengeable as long as within purpose of discretion granted .......................................64
Shell Canada Products Ltd. v. Vancouver (City) [1994] 1 SCR 231........................................................65
Discretion outside the boundaries of the authority delgated..................................................................65
Slaight Communications Inc v. Davidson [1989] 1 SCR 1038.................................................................66
First case to establish that the Charter applies to anyone who exercises statutory auhtority................66
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Lalonde v. Ontario (Commission de restructuration des services de sante) (2001), 56 OR (3d) 505.......66
Political failure by Commission allows review of discretionary decision.............................................66
6. Delegated Legislation...................................................................................................................................67
Thorne’s Hardware Ltd. v. Canada [1983] 1 SCR 106..............................................................................67
Must be significant evidence to prove discretion exercised in bad faith if within jurisdiction.............67
Cox v. College of Optometrists of Ontario (1988), 52 DLR (4th) 298.....................................................67
Delegated authority must occur within the confines of the delegated jurisdiction................................67
7. Discretion of the Court: Remedies.............................................................................................................68
Immeubles Port Louis Ltee v. Lafontaine (Village) [1991] 1 SCR 326....................................................68
Remedy no granted since applicant acted failed to mitigate loss..........................................................68
Howe v. Institute of Chartered Accountants of Ontario (1994), 19 OR (3d) 483.....................................68
Must have a decision for remedy to be granted.....................................................................................68
Air Canada v. Lorenz [2000] 1 FC 494....................................................................................................69
Must wait for decision before challenging before a court.....................................................................69
Homex Realty and Development Co. Ltd. v. Wyoming (Village) [1980] 2 SCR 1011............................69
Remedy will not be granted in applicant acted in bad faith...................................................................69
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A. SOURCES OF ADMINISTRATIVE LAW

Roncarelli v. Duplessis [1959] SCR 121

No such thing as unfettered Ministerial discretion


o No such thing as absolute and untremaled discretion
o One must refer to the statute for guidance as to what grounds may be considered when exercising
discretion
o Discretion necessarily implies that the statutory scheme will be administered in good faith and any
departure from the good faith purposes of the satatute is objectionable as fraud or corruption

Crevier v. Quebec [1981] 2 S.C.R. 220

Judicial Review a constitutionally protect right


Effect of a privative clause of a statute which purports to insulate a provincial adjudicative tribunal from any
review of its decision.
If Provincial legislature tries to insulate one of its statutory tribunals from review of its adjudicative functions,
this must be struck down as unconstitutional by reason of making tribunal an s. 96 court.
Context:
Since Crevier the case law has generally supported the view that the courts’ power to subject tribunals to
jurisdictional review has a constitutional foundation.
If SCC endorsed the view that, implicit in S.96-100, there is a constitutional guarantee to seek judicial review of
administrative action on the grounds of illegality, then two practical consequences appear to follow
• Crevier extends to all manner of administrative agencies exercising legally limited powers (tribunals
and public bodies)
• Crevier applies to judicial review of federal administrative agencies
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B. PROCEDURAL REVIEW

OUTLINE:
• Is there a duty?
o Knight (three factors)
 1) Nature of the Decision: Spectrum from judicial to administrative
• When talking about the nature of the decision must look to see how the decision fits
into the spectrum between a purely judicial decision to a purely administrative
decision, which will determine the standard of review
o Thus, every decision must be looked at on its own merits rather than fitting
into the categories described above
• Exercise of discretion and consideration of policy: less duty of fairness
o Economic decisions: CIBA-Geigy v. Canada – choice of procedure/disclosure
• Judicial decision and court-type procedure: more duty fairness
o Ontario (Human Rights Commission) v. Ontario (Board of Inquiry into
Northwestern General Hospital) – choice of procedure/disclosure
• Must take into account the bureaucratic structure
o Re Abel and Advisory Review Board (hearing)
• Cases:
o Canadian Association of Regulated Importers (duty owed?)
 2) Nature of the Statutory Scheme: What does the statute grant?
• Relationship between the power being exercised and the framework of the statute
o Is the purpose of the legislation being served by the decision?
• Common law duty of fairness cannot override procedure prescribed by statute
o In case of conflict, statute governs
• Consider the role of decision within the statutory scheme
o Take into account the objectives of the statute as a well as the nature and
function of the powers assigned to the decision maker
• Greater duty of fairness if no appeal structure built into statute
 3) Impact on the Individual(s) affected: Impact on specific individual
• What are adverse consequences for that specific individual (not generic)?
o Comparative: specific individual to general population
o More important or greater the impact the greater the duty of fairness
o Question Statute – Policy (inquiries), Legislative, Delegated, Admin (ministerial), Adjudicative,
quasi judicial, etc…
 Looking at procedure before a court and how much of those procedures you’re going to get
• What is the duty?
o Additional Baker factors (two additional factors)
 4) Legitimate Expectations: Common practice and relied on
• Tribunal may be reasonably expected to follow the same procedures it has followed
in the past
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• Clear and equivocal promises should be kept


o If tribunal has promised to extend certain amount of fairness when making a
decision, legitimate expectation may be formed
• However, past procedural practice or policy does not give rise to legitimate
expectations unless it reflects the tribunal’s common practice
o Person seeking to enforce it must have known the common practice and relied
on it (Furey – hearing)
 Exception: Mount Sinai Hospital - hearing
o Also expected procedure must not conflict with the tribunal’s statutory duty
o Must have strong evidence (Canadian Union of Public Employees – hearing)
• LE cannot be used with regard to broad policy issues (Reference re Canada
Assistance Plan – notice)
• No substantive rights created by LE (Congregation des temoins – hearing)
• Cases:
o Bezaire - duty owed?
o Hutfield - duty owed?
 5) Choice of Procedure: Tribunals given ability to choose procedure
• Look to SPPA first, then if not applicable turn to common law
o Important in the ADR process
 Applicable where common law is not
• ADR has no access to precedents
 Sets out requirements for proceedings
o If hearing required by statute SPPA will set out right guaranteed in hearing
o Although legislation may excluded SPPA, not necessary the common law
excluded (Re Downing)
• To what extent is there a common law domain where there is a silence in the statute
where the common can be used to fill the gap (natural justice – Cooper)
o Look to the statute and what choice were given, then fill in the rest with
common law (Suresh)
• How much flexibility is left for the person making the decision in terms of choosing
procedure
o This will determine the degree of discretion available to the decision maker
and the availability of the common law argument
• Balance between individual loss and government interest must be taken into account
(Goldberg)
o Must be serious loss (Mathews)
o Must take every case in its context (Krever Commission)
o Two branches
 Audi Arteram - Notice – Hearing – Reasons
• Answer to Baker questions will determine how much of this you will get (level of
participation that ranges from none to a lot)
• In order for procedural rights to kick a decision must be made (if hearing: after
hearing)
o Court will not intervene until a decision has been made
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 Dairy Producers Co-operative Ltd. - hearing


• Notice:
o General rule: in the absence of a specific statutory prescription, administrator
must give adequate notice to know who they might be affected and to prepare
themselves adequately to make representations
• Investigation
o General rule: court will not intervene at the investigations stage unless it has
the power to give final decision or has detrimental impact on the individual
(Irvine – hearing)
 Nemo Judex
• Three branches
o Independence
 Look carefully of the statutory structure
 Will not shutdown the impartiality analysis
 Institutional arrangements may not be followed, which will provide
evidence of bias
o Apprehension of bias
o Institutional
o Individual
• Consultations
• Institutional decision making
 Who?
 When?
o Bias – actual/pecuniary
 Always must be direct clear evidence (ex: money received)
• Was it breached?
o A fact question
 If the person is owed the following from above, did they receive that?
o Remedy
 Discretion (last class)
• Breach of duty of fairness will not necessarily get a remedy due to judicial discretion

1. Introduction

i. Fairness: The Threshold

Cooper v. Board of Works for Wandsworth District (1863) ENG CP

Base precedent for the right to duty of fariness


R - PRINCIPLE that no man be deprived of property w/o opportunity of being heard has broader application
than merely judicial proceedings
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2. Common Law Duty of Fairness


Nicholson v. Haldimand-Norfolk (Regional) Police Commissioners [1979] 1 SCR 311

Recognized the existence of a common law duty of fairness


F - N served as constable for 15 months and discharged by board three months shy of completing probationary
period w/o opportunity to make submission; sought judicial review; succeeded in Divisional court; appeal by
board allowed; relevant Statute = s. 27 of Police Act
o Not told why he was dismissed, nor given any notice or any opportunity to a hearing of any sort
I – whether N procedural fairness rights infringed by not allowed to make submission to Board
o Was there sufficient cause to attract the principles of natural justice?
o Is there a general duty of fairness even if natural justice does not apply
H – Court ruled in favour of N
o Found that the fact that the 18 month period was probationary meant that it was not an appointment “at
pleasure”
o Must be reason for dismissing N
R - Even where Act silent, courts willing to read in obligation to provide procedural rights that gives employees
protections from employer
o In the administrative and executive field there is a general duty of fairness

Knight v. Indian Head School Division No. 19 (1990) SCC

Setup 3 factors for determining is a duty of fairness exists


F - Board of Ed dismissed K as Director when refused to accept renewal of contract for shorter term than
original; K brought action against School Board alleging wrongful dismissal and arguing entitled to procedural
fairness before being dismissed and not treated fairly
I - whether procedural fairness due to officeholder at pleasure
H - L’H-D: HELD procedural fairness due but requirements of procedural fairness satisfied in case
• May be general right to procedural fairness, autonomous of operation of any statute, depending on
consideration of three factors; if THREE FACTORS lead to conclusion K entitled to procedural fairness
then Act and terms of contract must be considered to determine if entitlement limited (extended to five in Baker)
1) Nature of Decision – finality of decision - preliminary decision not trigger duty to act fairly  decision =
final and specific SO could entail duty to act fairly
2) Relationship b/w Employer and Employee – falls into second Ridge category BUT not lead to conclusion B
dot under duty to act fairly b/c admin law evolved in Canada to make procedural fairness essential
requirement of admin decision to terminate either of last two classes
 Public policy argument in favour of imposing duty to act fairly on admin bodies making decision
similar to one HERE (office held at pleasure) = pwrs exercised by Board are delegated statutory powers
that should only be put to legitimate use; public has interest in proper use of delegated powers by admin
bodies
3) Impact of Decision on employee - loss of employment ALWAYS attract right to procedural protection and
impose duty to act fairly on admin decision-making body
• Content of Duty to Act Fairly - basic requirements of duty = giving reasons for dismissal and granting
hearing; BUT content will vary according to circumstances of each case; since K could be dismissed at
pleasure, content of duty of fairness would be minimal
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SOPINKA: agree with disposition but NOT that Board owed duty of fairness to K; if duty of fairness arises
here, would be of limited nature  CORRECT approach = examine statue, regulations and contract to
determine whether K brought self within exception to general rule office terminable at pleasure NOT attract
duty of fairness
R - no longer necessary to characterize employment so that fits into one of three categories; BUT distinction
NOT obsolete b/c office held at pleasure, even after giving reasons and hearing, employer’s mere displeasure
still valid justification for termination  APPROACH = examine statue, regulations and contract after common
law duty “presumed to exist” and only to determine if duty ruled out b/c it converts exception into rule

Baker v. Canada (Minister of Citizenship and Immigration) (1999) SCC

Adds to factors to Knight Factors for determining the content of duty of fairness
F - B = citizen of Jamaica in Canada 12 years illegally with four DIFFERENCE b/w procedural and
children born in Canada; 1992 – applied for welfare after diagnosed substantive review
with paranoid schizophrenia and two children placed in foster care; Judicial review on substantive grounds
condition improved, children returned to care; 1992 - ordered ensures decisions of administrative
deported under Immigration Act b/c worked illegally and over stayed adjudicators are capable of rational
justification; review on procedural
visitor visa grounds ensures are fair (Toronto v.
- Applied (with assistance of counsel) for exemption from CUPE)
requirement to apply for permanent residence outside Canada
based on humanitarian and compassionate grounds under s. 114(2) - provided residual authority to Minister to
exempt anyone from any requirements of act or admit anyone to Canada b/c of H&C considerations; BUT
neither statute nor regulations defined H&C grounds but policy manual offered guidelines - advised officers
to balance extent of applicant’s establishment in Canada together with evidence of disproportionate hardship
if deported
- IN PRACTICE needed strong establishment in Canada (ie: working) to be accepted under H&C grounds
- Immigration Officer (Caden) stated insufficient H&C grounds; gave no reasons; after request of lawyer, B
given notes by Jr. Officer Lorenz used by Caden when making decision (p 58-59)
I - what is legal effect of stated question under s. 83(1) of Immigration Act on scope of appellant review; AND
whether principles of procedural fairness was violated; AND whether discretion was improperly exercised
H – APPEAL ALLOWED due to violation of principles of procedural fairness owing to reasonable
apprehension of bias, and because exercise of H&C discretion unreasonable
Procedural Fairness ISSUE
ARGUES following procedures req’d by duty of fairness in making H&C decision when parents have Cdn
children: (1) oral interview before decision-maker; (2) notice to children and other parent of interview; (3) right
for children and other parent to make submissions at interview; (4) Notice to other parent of interview and that
person’s right to have counsel present; (4) provision of reasons by decision-maker
• ARGUES notes of Lorenz give rise to reasonable apprehension of bias
• FINDS fact that decision administrative and affects “rights, privileges or interests of an individual” =
sufficient to trigger application of duty of fairness to H&C decisions
FACTORS Affecting Content of Duty of Fairness
Knight – content of duty of fairness decided in specific context of each case
• VALUES underlying duty of fairness related to PRINCIPLE that individual(s) affected should have
opportunity to present case fully and fairly and have decisions affecting rights, interests or privileges made
using fair, impartial and open process, appropriate to statutory, institutional, and social context of decision
13

• FIVE FACTORS: (NOT exhaustive list)


1) Nature of decision being made and process followed in making it  MORE process provided for,
function of tribunal, nature of decision-making body, determinations must be made to reach decision
resemble judicial decision-making, more likely procedural protections closer to trial mode required
(Knight)
2) Nature of statutory scheme  greater procedural protections when no appeal procedure provided in
statue or decision determinative of issue and further requests cannot be submitted (Old St. Boniface)
o Putting the decision in a statutory context
o Look at the authority to deport and the purpose of statute
• In this case the crown would look at the purpose of the H & C grounds and argue that the
purpose of the statute was met and the proper authority was used in that context
3) Impact on individual(s) affected  more important and greater impact on person(s) involved, more
stringent procedural protections mandated (Kane)
• It’s not the importance of the decision in the generic sense, it’s the importance of the decision to
the individual
4) Legitimate expectations of person challenging decision  if claimant has legitimate expectation
certain procedure will be followed, will be required by the doctrine of fairness or natural justice (Qi v.
Canada); doctrine of legitimate expectations cannot lead to substantive rights (Reference CAP)
• If there legitimate expectations that a certain result will be reached, fairness may require more
extended procedural rights than would be otherwise be accorded
5) Choice of Procedure - respect choices of procedure made by agency itself, especially when statute
leaves decision-maker ability to choose its own procedures or when agency has expertise in determining
what procedures appropriate
o To what extent is there a common law domain where there is a silence in the statute where the
common can be used to fill (natural justice – Cooper)
o How much flexibility is left for the person making the decision in terms of choosing procedure
• This will determine the degree of discretion available to the decision maker and the availability
of the common law argument
Legitimate Expectations – NO b/c Convention on Rights of Child NOT equivalent of gov’t representation
about how H&C applications decided
Participatory Rights - whether considering all circumstances, those whose interests affected had meaningful
opportunity to present case fully and fairly; apply FIVE FACTORS to determine type of rights req’d under
duty
(1) Nature of Decision: H&C decision different from judicial decision (lots of discretion) AND
within statutory scheme acts as exception to general principles  militate in favour of LESS
requirements
(2) Nature of Statutory Scheme: NO appeal procedure (judicial review available)  militate in
favour of MORE procedural protections
(3) Impact on Individual: Decision very important to lives of those with interest in result  content
of duty of fairness MORE extensive
(5) Choice of Procedure: Statute accords considerable flexibility to Minister to decide
on proper procedure, immigration officers not conduct interviews in all cases  militate in favour of
LESS requirements
⇒ some factors suggest stricter requirements, others more relaxed; RESULT = duty of fairness owed =
minimal
14

• HOLD lack of oral hearing or notice of such hearing NOT constitute violation of requirements of
procedural fairness B entitled to, particularly given that several factors point toward more relaxed
standard
Provision of Reasons - In certain circumstances, duty of procedural fairness require provision of written
explanation for decision  where decision has important significance for individual, when is statutory right
of appeal or in other circumstances, some form of reasons should be required; HERE – reasons necessary;
BUT requirement fulfilled b/c B provided with notes of Lorenz
Reasonable Apprehension of Bias - TEST set out in National Energy Board – what would informed person
viewing matter realistically and practically and having thought matter through conclude; immigration
decisions individualized but critical to interests of country as whole SO require recognition of diversity,
understanding of others and openness to difference  HOLD notes of Lorenz demonstrate reasonable
apprehension of bias
15

3. Common Law Duty of Fairness: Was a Duty Owed?


Canada (Attorney General) v. Inuit Tapirisat of Canada (1980) SCC

Presumption against notice or hearing if statute is silent


F: CRTC is the federal regulatory agency, and Bell Canada cannot raise telephone rates without the
permission of the CRTC
o Bell wanted to increase rates in NWT, Northern Ontario and Northern Quebec
• An objection on the part of residents was that there was not going to be an improvement in services as a
result of the increase in rates
• CRTC notified the parties affected, and a hearing was held
o Decision made and authorizes increases in the rates
• Residents appealed to the Governor General in Canada
o Cabinet made a decision and upholds the CRTC decision on the basis that their procedures does
not allow for reviewing files (based on briefing notes)
• Inuit argued that they had no opportunity to appeal in the process
H: No duty of Fairness in this situation
• What is the decision?
o Cabinet (individual) making a decision about another individual (Bell Canada)
o Or one could argue that this is a Cabinet policy decision made on a population
 If the case, there is no need to give the Inuit participatory rights
NOTE: different analysis applied to each situation
R: No requirement for notice or a hearing so there will be presumption against it; court NOT willing to read in
obligation for procedural rights here; Court says there is presumption against imposing hearing requirement
UNLESS EXPLICITLY directed by statute itself when the statue confers political decision making powers on
the Cabinet

Homex Realty and Development Co. Ltd. v. Wyoming (Village) (1980) SCC

Presumption of right to be heard is statute silent when sealing with property rights
F - without giving notice to H, municipality made bylaw under Planning Act – s. 29(3) that designated plan as
plan “deemed not to be registered plan of subdivision”; EFFECT of bylaw = lots in subdivision could not be
conveyed unless new plan registered or consents obtained from committee of adjustments of municipality and
municipality would be able to impose conditions; H made application for review to quash bylaw
I - whether municipality owed H right to be heard and whether no notice was breach of this duty
H – BOTH majority and dissent agreed to recognize degree of procedural entitlement; BUT majority says that
H looses b/c of bad conduct and dissent not willing to consider conduct and FINDS hearing req’mnt not
satisfied
D – DICKSON
• PRINCIPLE that before public body can limit or abrogate property rights of citizens, must first give
individuals concerned opportunity to be heard (Cooper)
• Not necessary for legislature to provide explicitly for hearing to imply right to be heard; where statutory
bodies seek to limit property rights, courts will imply right to be heard UNLESS express declaration to
contrary
• Right to hearing HERE results from fact that by-law interferes with private property rights of one owner
• SETS spectrum for determining appropriate procedural standard for statutory body:
16

Purely Ministerial Decision on broad grounds of public policy Judicial Decision when personal or property
⇒ individual gets LITTLE of NO procedural protection rights affected ⇒ substantial procedural protection
• HERE by-law aimed deliberately at limiting rights of one individual SO H entitled to some procedural
safeguards, at minimum under duty to give H notice of proposed by-law and opportunity to be heard
R - recognizes by-law may attract duty of fairness when directed at an individual, even though the decision is
based primarily on public interest concerns; dissent asks to look at nature of interest at stake and majority asks
to look at nature of dispute; carving out principle that legislative decisions may attract procedural rights

Bezaire v. Windsor Roman Catholic Separate School Board (1992) ON Div Ct

Agreement to follow guidelines created legitimate expectations


F - Board decided to close nine schools; awareness in community that could happen; affected parents and
students of schools targeted for closing had no opportunity for input into decision before made, although there
was form of consultation after decision announced. It is clear that this was a policy decision, but there were
guidelines in the statute that were not followed
I - whether Board under obligation to “act fairly” in exercising admin power to close school
H – board under obligation to act fairly, defined here as requirement of public consultation as condition
precedent to valid closing; also found parents/children denied procedural fairness and this denial not cured by
form of consultation after decision taken
• Board relies on ON CA Vanderkloet v. Leeds & Grenville (County Board of Education) but distinguished
b/c was reorganization of schools NOT closing; since closing different subject matter policies established by
board must be followed
• In Vanderkloet court HELD that on procedural fairness Board acting in good faith within its statutory
authority has complete power over reallocation of students within district and in so doing not affecting legal
rights of any person; not satisfied principles of procedural fairness applicable to board  not apply to
school closure
• FINDS HERE that guidelines and policies premised on public consultation attract duty in circumstances of
case; guidelines although ambiguous and lack force of subordinate legislation mean doctrine of fairness
apply
o W bound itself by the guidelines when it agreed to follow by them
 Had W listened to B and closed the school there wouldn’t have been a problem

Canadian Association of Regulated Importers v. Canada (A-G) (1994) CA

Setting quotas policy decision: no duty of fairness


F - ministerial decision changing quota distribution system for importation of hatching eggs and chicks; =
significant change that affected historical importers; in challenging claim, importers claim not consulted
I - whether gov’t of Canada owed duty to importers to consult before changing system
TRIAL - Minister exercised statutory power that was general for small segment of population and particular in
its application; it caused significant harm to its applicants SO looking at type of interest affected and harm it
caused; quantity and quality of harm may override general quality of decision  made order to continue under
old scheme before could review their submissions
H – Minister NOT required to give respondent’s notice and opportunity to be heard  NO duty to consult
17

• Generally rules of natural justice not applicable to legislative or policy decision; particularly, not applicable
to setting of quota policy although may be to individual decisions respecting grants of quotas
• No reason to differentiate situation where HERE it is minister rather than board establishing quotas; setting
quotas = essentially legislative or policy matter with which courts not normally interfere
o They reason that Quota policy cannot be challenged (no duty of fairness)
 However, an individual quota can be challenged on grounds of the amount of quota, but not
the idea of having a quota (policy)

Re Webb and Ontario Housing Corporation (1978) ON CA

Duty of fairness: notice but no necessarily hearing


F - OHC owned high-rise apartments in downtown TO managed by Meridian and leased at less than market
rents to persons with low incomes; W and children became tenants August 1970; Meridian recommended
terminating lease b/c problems caused by W’s children; OHC officials and board of directors approved and
application for termination brought under Landlord and Tenant Act
I - whether OHC even if performing administrative function was required to treat W fairly; what duty of
fairness does OHC owe to W in context of eviction procedure
H – W established that there was obligation on OHC to treat her “fairly” BUT evidence discloses that she was
treated “fairly” as word now understood in application to case such as this
• Although there is public aspect to his matter, decision taken is only part of administrative duties imposed on
OHC; no judicial or quasi-judicial quality to its actions in this regard that at common law required strict
application of audi alteram partem (hear the other side) principle
• Mere fact that W qualified for subsidized housing was not right so does not mean she would qualify for duty
of fairness in decision to be accepted as tenant; BUT once W became tenant and received real benefit of
reduced and subsidized rent then situation changed and she was entitled to duty of fairness
• FOUR relevant FACTORS to determine appropriate procedure to require of authority:
1) Nature of authority (public)
2) Nature of its power (can withdraw benefit)
3) Consequence of exercise of power to individual effected (could end up homeless)
4) Nature of relationship b/w individual and administrative tribunal (landlord-tenant)
R - In considering relationship FIND OHC in exercising power of termination and thereby depriving W of
benefit of lease was required under circumstances to treat W fairly by telling her of complaints against her and
giving her opportunity to make answer to those complaints

Hutfield v. Board of Fort Saskatchewan General Hosp (1986) (Alta. QB)


Past Procedure can create legitimate expectation of current procedure
F - H applied to hospital board to be appointed to medical staff; rejected by board although approved by
College of Physicians; rejected again next year but this time board did not seek College’s opinion on
application; also did not give H opportunity requested to attend decision-making hearing; H not given reasons
for decision  Hospitals Act allows appeal for termination for hospital privileges or failure to reappoint but
NOT with refusal to grant initial appointment in first place (= HERE); once have privilege have right to appeal
I - whether H treated “fairly” in board’s decision deciding not to grant appointment
H –board should have given reasons for its decision and that decision of board invalid b/c second application
not sent to College and committee not given written report with reasons
• McInnes v. Onslow-Fane court said where decision merely refused to grant applicant right or position then
applicant, particularly if had previous applications unsuccessful had no legitimate expectations of success
18

• Misconception that standards of natural justice ought to apply only where conduct of authority exercising
public duty determines rights in sense of right to which there is corresponding obligation in law
• PRINCIPLE stated = body, if its decision will modify, extinguish or affect right or interest of person when
person’s rights or interest are being considered and decided upon in way that is in law or for practical
purposes final, or final subject to appeal, must adhere to procedural standards, precise nature of which will
depend upon nature and extent of right or interest
• Failure of body to attain procedural standards appropriate to particular situation will attract quashing of
decision by remedy of certiorari and if necessary or desirable, mandamus
• Refusal to grant licence will have slur on financial viability of H; refusal necessarily based on negative
evaluation on H’s credentials thereby casting slur on H’s application
• Court speaks of public interest in having H acquire hospital privileges; public being denied benefit of H’s
medical services
R - Thus, the reliance of the recommendation the first time creates an obligation on B for the second application
that it failed to meet
• Duty of fairness created and then breached
19

4. Common Law Duty of Fairness: Hearing


Re Abel and Advisory Review Board (1979), 97 DLR (3d) 304

Take into account Bureaucratic Structure


F- Deals with an administrative procedure that goes to prisoners
• A is being held by reason of insanity (lieutenant governor’s warrant that are renewable indefinitely)
o There is a annual review requirement to renew the warrant
• The review is made by the minister (must sign it – when document signed that is the decision)
o Hearing is conducted by a civil servant who has access to a large number of files which is the basis
for the decision
 These files are not able to be accessed by the A
• Gov’t argues that the civil servant doesn’t make the decision, but the minister does, thus the procedural
protection is very low
H - Court says it is completely misleading to say that the minister makes the decision (only signs it) when is
actually the Board making the decision
• Thus, we are looking at the bureaucratic structure to see how the decision is made to determine the level of
procedural fairness

Dairy Producers Co-operative Ltd. V. Saskatchewan (Human Rights Commission)[1994] 4 WWR 90

Procedural protection does not apply to investigations


F - Human rights process involves filing a complaint which then goes to the human rights commission which
then investigates the complaint (provincial legislation usually requires the investigation – “shall”), then there is
a procedural hearing (in some cases – uses the wording “may” in the legislation - ministerial), then there is a
tribunal which makes the decision
• In this case there are complaints of sexual harassment
• Investigator issues a report and there is a decision by the Commission on whether to proceed to a hearing
and a tribunal
o Does this decision trigger procedural protection that goes back to the investigation prior to the
decision to have a hearing?
• Most cases establish that reasons must be given to dismiss a complaint
H – NO breach of procedural fairness
• if it goes past the point of investigation to a hearing procedural rights kick in (decision is made), but prior to
that there are procedural rights involved
o Thus, the substantive right is not affected according to the court until you reach the final decision
after the hearing
• RESULT = Commission not obliged to comply with formal rules of natural justice
o The problem with this process is that there is much damage done since it can take years before a
decision is actually reached, and should this be reason to have some kind of procedural
protection
R - Where statute establishes legislative capacity, much more possibility courts see this capacity as being
equivalent of police investigative powers not creating any “hearing” entitlements on part of those “under
suspicion”
20

Irvine v. Canada (Restrictive Trade Practices Commission) [1987] 1 SCR 181

Administrative investigation efficient – procedural fairness limited


F - Inquiry vs. Investigation:
o inquiry has policy implications directed towards the future rather than the past
o investigation directed towards the past, focused on individual conduct, and the purpose is to impose
blame and a penalty
• In this case we have allegations that there is practices that violate federal legislation
o Director of the Trade commission has the authority to direct an investigation and call on witnesses
• Do the people called before the investigation have the right to be cross examined?
o What kind of procedural protections are being built in at this stage?
 Before the charges are laid and a hearing occurs
o The answer depends on what occurs afterwards that results in the final decision
H – Rules of procedural fairness sufficient HERE
• The argument for administrative procedures over the trial model is efficiency (time and cost – reducing
billable hours)
o Thus, the purpose of having such administrative processes that limit the ability of cross
examinations, etc… is to reduce the need and presence of lawyers
R - Where the process in preliminary form is engaged in an investigation courts should not intervene; BUT
where investigation conducted by body seized of powers to determine in final sense or in sense that detrimental
impact may be suffered by individual then courts more inclined to intervene

NOTE: TODAY – most statutory schemes set out procedural entitlements one can expect at various stages of
process; but somewhat ambiguous so still disputes in terms of duty of fairness  FIRST look at statute to
determine if someone has procedural fairness THEN look at common law to fill in gaps by way of analogy

Reference re Canada Assistance Plan [1991] 2 SCR 525

Legitimate expectations cannot be used when dealing with policy decisions


F - CAP = fed statute that authorized gov’t of Canada to enter into agreements with provs for sharing costs of
provincial social assistance programs; s. 8 provided that these agreements would continue in force for as long as
relevant provincial law in operation subject to termination by consent or unilaterally by either party on one
year’s notice; as part of deficit reduction policy, feds introduced bill that limited increase in its financial
contribution to BC, Alta and ON w/o notice
I - whether feds precluded from introducing bill b/c legitimate expectation agreements only amended by
consent
H – feds not precluded from introducing bill by virtue of legitimate expectations  doctrine not apply here
• If doctrine of legitimate expectations required consent, and not merely consultation, would be source of
substantive rights and HERE substantive right to veto proposed fed legislation
• No support in Cdn or English that doctrine can create substantive rights; = part of rules of procedural
fairness
21

• Where applicable can create right to make representations or be consulted BUT not fetter decision following
representations or consultations
• Parliamentary gov’t would be paralyzed if doctrine of legitimate expectations could be applied to prevent
gov’t from introducing legislation in Parl
R - Legitimate expectation doctrine only apply to decision affecting individuals BUT not broad based policy

Furey v. Roman Catholic School Board for Conception Bay Centre (1991), 2 Admin. LR (2d) 263

Must show reason for reliance to argue legitimate expectations


o School Board with the authority to close schools, and closed a school without hearing
o Did the people of the town have any procedural protection?
o There are administrative guidelines, and these guidelines are not followed
o However, board never followed these guidelines, and there was significant testimony that they never
followed guidelines
o Thus, there is no grounds for claiming LE based on guidelines
o Therefore, one must show that guidelines actually have an effect on the decision maker at some
point for them to have legal meaning
 This exemplifies the evidentiary burden on one who is claiming the formation of LE

Mount Sinai Hospital v. Quebec (Minister of Health and Social services) [2001] 2 SCR 281

Assurance that permit will be issued used as evidence of decision


F – Goes to the issue of discretion
• M decides it wants to move from the countryside into the city of Montreal
o Has been working under the permit of a long term facility, but is now a short term facility under the
full awareness of the Quebec government, thus it wants to have the proper permit when it moves
• M is ensured by the government that such a move is possible and that the proper permit will be issued
• One of the consequences of the permit is that the M will retain the right to have its own board of directors
o New legislation finds that it is not possible to obtain the new permit, and forces M to become part of
the larger hospital structure
• M claims that they had been given the permit already
o Did all the promises, etc… constitute being given the permit?
o Was M led to believe there was a permit, thus obligating the minister to grant a permit?
D – There are three types of permits which constitute different procedures: renewal, new and modifier
o Must be a modified permit; thus, what had the minister already approved for a modified permit
• Court rules in favour of M
o Seems to create a reasoning that the minister administered the permit, but they don’t specify when
o It is not clear why the minister cannot continue to administer discretion up to actually making the
decision (principle of equity)

*Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour) [2003] 1 S.C.R. 539

Must be strong evidence of past practice for legitimate expactations to justified


R – This is a case with labour arbitrators at time when the government was at odds with unions
22

o There were a large number of statutes and expectations that were in the government’s way of
destroying unions
• Traditionally there has been a high amount of deference given to labour arbitrators due the common laws
lack of expertise in the area
o One way of dealing with this was through appointing judges as arbitrators
 This was seen in the labour environment as an attmept by the courts to interffer
• Thus, there is an idological expectation that is at odds with the government’s attempt to break unions
o CUPE argues that making this change in breaking of LE
• Does CUPE have the LE of the minister based upon things she said that the gov’t will not change the
structure of labour arbitrations?
o Deals with the problem minsters face
H – must be strong evidence of a consistent past practice
o Not enough to have just legitimate expectation, must also have evidence of that in comparable
situations certain procedures were followed
o Union had legitimate expectations that the arbitrtors would be appointed in accordance with the principles
of natural justice
o Judges are not qualified to be labour arbitrtors – the common law has never been comfotable with
collective action, thus judges no the best to hear these disptues

*Congregation des temoins de Jehovah de St-Jerome-Lafontaine v. Lafontaine (Village) [2004] S.C.J. No.
45

Legitimate expectations create procedural guarantees but no substantive


o Jehovah witnesses upset with a rezoning decision in an area where they were going to set up a house of
prayer – the majority deals with this case on procedural rights, and there was a failure on the part of the
munincipality to take the second two applications and do with them what they should ahve – the court also
confirmed that LE has no substantive content, just procedural

5. Principles of Fundamental Justice: Bill of Rights

o Bill of Rights enacted in 1960


o Applies only to federal legislation
o Quasi-constitutional: human rights document
 Will override conflicting legislation unless explicit legislation that calls for BofR to be
excluded (Authorson)
o NOT retroactive: cannot challenge legislation enacted prior to 1960
o Important document because:
o Only document that declares unambiguously that Canadian have human rights
o Only rights document at federal level that protect property rights
o Relevant provisions:
o Section 1(a): right to life, liberty and the security of the person and the enjoyment of property
and right not be deprived thereof except by due process of the law
 Similar to section 7 of Charter with two differences
23

• Right to property
• Right to Due process of law
o Section 2(e)
 “deprive right to a fair hearing in accordance with the PJF”
 Has all but been replaced by section 7

National Anti-Poverty Organization v. Canada (Attorney General) (1990), 60 DLR (4th) 712

Only those whose rights are directly affected may invoke s.2(e)
F – BCE headquartered in Montreal that owned two separate companies Bell Canada and Bell Canada
International
o BC is subject to CRTC, BCI not subject to CRTC (international)
o BCI has contract with Saudi Arabian government
o BC and BCE enter into transfer arrangement where their employees serve a term in Saudi Arabia
o BC’s costs have to separated out to make rate application to the CRTC
o Can’t use money raised by that have to do with the costs associated with CRTC to subsidize BCI
operations
o Federal Court gives N access, but at the Federal Court of Appeal denies that access
I – Can NAPO invoke s.2(e) of B of R to have a participatory right in the BC’s hearing in front of the CRTC?
H - S.2(e) argument: threshold is that there must be your own interests that are effected by the decision
o Thus, guarantee of hearing under s.2(e) is only applicable to those interests that are directly affected
R – Only those directly affected by the decision have the right to invoke section 2(e)

Singh v. Canada (Minister of Employment and Immigration) [1985] 1 SCR 177

Outline of s.2(e) argument


F – Individual apprehended and found to be in Canada illegally and are about to be deported
 Immigration Act gives the opportunity to apply for convention refugee status (UN Convention of the Status
of Refugees)
o Canada implemented the Convention, thus, can be accorded to the individual if they can demonstrate
that there is a reasonable risk of persecution if they are deported
 We are concerned about the hearing  reason
I – Is a person who illegally in Canada subject to any procedural protection?
H – What will using s.2(e) provide?
o Unlike the Charter, it is a straight forward procedural guarantee (not security or liberty analysis)
 No issue of entitlement, since government must satisfy what s.2(e) stipulates
o Unlike the common law argument, must simply look at the structure of the legislation in question
and determine what kind of procedural rights should be provided
o Section 2(e) says that there must be a fair hearing
 Only person who can claim s.2(e) are those whose rights are directly affected (adverse affects
are not captured
 Hearing can be Letters, document, etc… to a full oral hearing
o Also, full blown natural justice will grant a person an oral hearing in front of a judge
24

 Government argues in this case that the more procedural fairness the less efficient the process
becomes
o Entire process on UN Convention process at the time did not have an oral hearing
o Notes were made on application which then sent a recommendation, which then made the decision
based on the recommendation
o Beetz says that the nature of the interest and the consequences will determine whether an oral hearing is
warranted
o Oral hearing allows people to have a credibility assessment (inability of a document in providing)
o The interest: one of the most important interests we have – citizenship
 Decision is, thus, a very important decsision
o Question before the court is, does this decision require an oral hearing
o The court says YES
o Immigration department was outraged, and resulted in a backlog of cases before the Federal Court
o Looking at who this works, the decision maker has statutory authority
 And one must look at the costs of hiring expertise, so the government will respond by
providing the least imposing form of a hearing
R – Beetz argument: (recommended argument)
o S.2(e) don’t have to have an entry level right to get the right to have a hearing
 All there has to be is a federal statute that give someone authority to make a decision
o S.2(e) offers more protection than the common law argument

*Authorson v. Canada (Attorney General) [2003] 2 S.C.R. 40

Bill of Rights can be overridden with explicit wording in legislation


F – Veterans department had jurisdiction over those people eligible to disability benefits
o Authority was given to the Cabinet (Veterans Minister)
• A is incompetent through a prolonged period where money from disability is accumulated over 47 years
o A finds that no interest has been added to the account
• Legislation is set up in a certain way where the interest should have been added, but the government decided
not to
• As of January 1990, legislation was amended so that any interest owed under the Veterans Act was cut off
• Ontario CA ruled in favour of A, which put the government on the hook for over $1 billion in outstanding
claims
o Based on a s.1(a) argument in the protection of property
H – Court held that s.1(a) does not give you anything
o We are speaking in terms of due process under s.1(a) and whether it grants any rights in the
legislative process
o Court will not interfere until the law is complete, but it will not impose procedural obligations on the
making of law (parliament and the legislative process)
• S.1(a) is triggered since the administrative application of the law directly affect A
o In 1990 when it decided to cut off interest owed, it made a simple administrative decision without
any participatory rights for those affected
25

• Final argument went to expropriation


o Argued that the government had in effect expropriated A’s property in violation with s.1(a)
o Court rules that as long as the government says quite unambiguously in legislation that it is doing so,
it has full right to expropriation and will not violate s.1(a)

6. Choice of Procedures

Mashaw Article – THREE approaches of judges in choosing procedural protections:


1) Traditional approach – invocation of history; do the interests in question conform to the interests that
historically attracted procedural protection; appeal to tradition is inherently an appeal to maintaining status
quo
2) Natural rights approach – engages notion of moral premise considering individual autonomy; considering
extent to which particular gov’t action might ignore independent moral values in name of collective ends 
PROBLEM = identifying those values and what procedural rights necessary to protect individual dignity
3) Interest balancing approach - balancing individual interests vs. state’s interest in efficient, expedient and
correct resolution of disputes (grounded in notions of fiscal responsibility)  PROBLEM =
incommensurability of interests (apples and oranges), difficulty substantiating claims and actually doing
cost-benefit analysis

Statutory Powers Procedure Act - General Statutes about Protection


• TO APPLY requires exercise of "statutory power of decision”  DEFINED in s. 1 as power existing "by
or under" statute to decide or prescribe (a) legal rights, powers, privileges, immunities, duties or liabilities of
any person; (b) eligibility of any person or party to receive or to the continuation of, a benefit or licence
• s. 2 – Act shall be liberally construed to obtain just, expeditious and cost effective decision on its merits 
balance b/w just and expeditious; two aims that can clash
• s. 3 - SCOPE of SPPA – governs only powers to decide conferred by legislation; “statutory power of
decision” sets obvious limit and some problems of interpretation  b/c particular agency authorized by
statute to make decisions, not mean every decision by that agency is statutory power of decision
• s. 3(1) – RULES APPLY if hearing required by statute that created statutory power, “or otherwise by law”
 clearly covers situations where CL would require hearing and also includes decision makers subject to
dictates of "fundamental justice" as required by s. 7 of Charter; IMPORTANT = once passed threshold that
hearing required then SPPA applies to give additional sets of rights
• Re Webb – HELD that Act's ambit not extend to all decision makers subject to CL obligation of procedural
fairness; RESULT = whenever issue arises as to whether decision-maker "is required . . . otherwise by law"
to give hearing, court must still ask whether that decision maker is judicial or a quasi- judicial one -
precondition of application of SPPA
• s. 3(2) - sets out long list where Act NOT apply
• s. 4.5(2) – specific provision about requirement for notice
• s. 5 – accommodation for written hearings, electronic hearings
• s. 10 – right to counsel
• s. 8 – if “character or competence” at issue, special provision for disclosure before the hearing; not define
• s. 23 – power of tribunal to make orders to prevent abuse of its processes; open-ended authorization to
invoke powers to deal with problems
26

• EXCLUSION of SPPA – in Re Downing and Graydon HELD that although Employment Standards Act
expressly excluded SPPA, it does not by itself affect employee’s common law right to be heard; express and
unmistakeable statement by legislature required before exclusion of right to be heard presumed  Act
merely provides rules for conduct of hearing more rigid and formal than more flexible prescriptions in
common law

Goldberg v. Kelly 397 US 254 (1970)

Choice of procedure will take into account balance between loss and Gov’t interest
F – Program of welfare benefits setup in New York by the federal government
o G’s benefits are cut-off
o What is the nature of entitlement?
o Majority states that the statute creates entitlement
o Minority says there is no entitlement, only a privilege
I – Disentitlement that comes with a right to an appeal (benefits cut-off at this point)
o Alternative: benefits continues throughout the appeal process
o This problem has large public policy interests
 Government doesn’t want to waste public money
• Thus, government is required to cut-off benefits whenever it can
o Where does the disentitlement occur?
o Is there a requirement for a hearing before declaring disentitlement?
o Again this will raise public policy concerns due to the cost of holding a hearing
H – Court applied a particular test to the nature of the decision
o Welfare benefit is very important
o Given the nature of the entitlement (basic necessities of life) G is entitled to a hearing
 There should have been procedural protection up front
o Option for an appeal is not a constitutionally protected in administrative law
o The only thing guaranteed is the right to judicial review
o When looking at this structure, which decision is final and how much procedural protection was provided?
o Courts says this will depend on the nature of the consequences will determine this
R - Balancing test supposed to determine necessary procedural safeguards by weighing potential loss to
recipient against gov’ts interest in summary process.

Mathews v. Eldridge 424 US 319 (1976)

Disability benefits not considered necessity of welfare and guaranteed choice of procedure- need serious
loss
F - E challenged by reference to 5th amendment procedures for termination of disability benefits under Social
Security Act; SCHEME = tentative decision by state agency based on consultation with worker and collection
of medical information/opinion; if tentative decision adverse worker notified and given summary of material
used and opportunity to respond; FINAL determination by agency and reviewed by administration; if decision
to terminate approved, payments terminated and worker entitled to reconsideration by state agency and trial-
type hearing
I - whether procedures adequate and appropriate
H – procedures appropriate and trial-type hearing as stated in Goldberg unnecessary
27

• Identification of specific dictates of due process require considering three FACTORS:


i) Private interest that will be affected by official action
ii) Risk of erroneous deprivation of such interest through procedures used and probable value of additional
or substitute procedural safeguards
iii) Gov’ts interest including function involved and fiscal/admin burdens additional if substantive procedural
requirement would entail
• Potential injury similar to Goldberg; BUT distinguished b/c eligibility for disability benefits not based on
financial need and potential deprivation HERE generally likely to be less, but can be overstated
• FINDS less reasons here than in Goldberg to depart from ORDINARY PRINCIPLE = something less than
evidentiary hearing is sufficient prior to adverse admin action
• Written hearing sufficient HERE b/c pre-termination hearing more sharply focused and documented then
typical welfare determination case b/c concludes that medical evidence is objective
• Final factor in striking appropriate due process balance = public interest – admin burden and societal costs;
ULTIMATE BALANCE involves determination as to when under our constitutional system judicial type
procedures must be imposed upon admin action to ensure fairness
R - judicial model of evidentiary hearing neither required nor even most effective method in all circumstances;
essence of due process = requirement person in jeopardy of serious loss be given notice of case against him and
opportunity to meet it; all necessary = procedures be tailored to circumstances/capacities to those to be heard

Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3

Clearly says that if you want to do a section 7 analysis, it is necessary to do the Baker analysis
F - S is Sri Lankan, landed immigrant in Canada
o S is alleged to have engaged in fundraising activities for the Tamal Tigers (labeled terrorist group)
• What obligations on the part of the government to provided a duty of fairness are imposed when dealing
with an alleged terrorist
• To determine if someone is a terrorist information is passed from CSIS to the Minister, and this passed
information is confidential
o Thus, the alleged terrorist had no access to the information
o This is justified by CSIS as a result of protecting national security and the source of the information
 This process is clearly open to abuse
• This is complicated by the fact that S may be tortured if returned to Sri Lanka
o Canada is under a international obligation not to deport anyone if there is a reasonable risk of being
tortured (international)
o Canada also bars torture under the Charter (domestic)
• Immigration Act at the time provided no procedural protection
I – Whether procedures followed were constitutionally valid or whether S should have opportunity to
view/respond to officer’s report; how should security considerations be balanced.
H – MINIMUM requirement to meet duty of fairness and fulfill requirements of fundamental justice – if prima
facie case of torture is established, Minister must provide refugee with all relevant information and advice it
intends to rely on, provide an opportunity to address evidence in writing; AND after considering all relevant
information, issue responsive written reasons
• 5 Baker factors analyzed to fill the gap in procedural protection (remember this a factors balancing test)
o 1. Nature of the Decision
28

 Refers to the type of decision being made


• One perspective: the policy to individual spectrum
• Another perspective: the admin. to judicial spectrum
o If an appeal it will always be pushed towards judicial side, since it will always
be a party-party dispute
 Also looking at the subject matter of the decision
• The importance will play a role but it will not necessarily attract more duty of fairness
• Thus, don’t be confused by the importance or consequence of the decision
o 2. Place of Power in the Statute (Nature of Statutory Scheme)
 Relationship between the power being exercised and the framework of the statute
 Is the relationship essential (i.e. is the purpose of the Act being served by the decision)
• Trying to establish that this is the type of decision the statute was trying to establish

NOTE: At this point we shift to the torture issue, as we shifted to the children in Baker

o 3. Individual consequences
 Must attempt to show that consequences for this specific person are harder than on most
• In this case we can turn to the torture argument
o Thus, not just a person being deported, but also have the possibility of being
tortured
o 4. Legitimate Expectations
 A purely procedural device, there are no LE that go to resolve
 In this case LE is going under the framework of section 7 which has substantive content
 In this case: Court determines that the executive branch of government couldn’t have signed
the international convention without the intention of following them
 Thus, there not LE because he’s being deported, but because he’s being deported to torture
o 5. Choice of Procedure
 There was no procedure under the Immigration Act at the time
 There is a spectrum from a full trial (criminal prosecution) to nothing (ex: expropriation by
clear legislation)
 How much choice did the government have (decision maker) have when enacting the statute
(choosing procedure)?
• Common law will fill in the gap left by the legislature
 In this case the court determines that the government could have done better than nothing

i. Notice
• Problems can be put into one of four groups: (1) form; (2) manner of service; (3) time; (4) contents
FORM - Two forms – written and oral; written = more usual and norm courts will require unless context
permits different form; “fairness development” makes oral reasonable in some situations (Webb and Goldberg)
MANNER - Personal service = norm courts will probably require unless context permits another form (ie:
situations involving large number of people may be communicated in public manner such as newspaper):
• Re Central Ontario Coalition and Ontario Hydro – notice to affected public about location of large high-
voltage electrical transmission lines required but service of everyone who might be affected not required;
29

board made order for notice including personal service on some municipalities and indvs and publication in
newspapers; notices in paper described lines as “southwestern Ontario”  HELD this phrase not denote
alternative route
• Re Joint Board under the Consolidated Hearings Act and Ontario Hydro – similar notices tested, this time
used term “Eastern Ontario” in notices; distinguishes Central Ontario and FINDS term here plainly
included area where proposed undertaking to be built
TIME - Whether crucial date– is date of mailing or date of receipt (CL = receipt):
• Re City of Winnipeg and Torchinsky –assessment procedures where assessor shall send notice of assessment
by mail; owners could appeal assessments and but owner must give notice to board to appeal at least 10
days before first day of appeal as per dates published in newspaper  dismissed board’s claim where
sought to prohibit hearing appeal where notice late and HELD Act not prohibit board from hearing appeal
b/c 10 day period discretionary not mandatory
• Re Rymal and Niagara Escarpment Commission – landowners affected by commission decisions had right
to appeal to minister; commission must mail notice of decisions and specify notices of appeal must be
received by ministry within 14 days of date of mailing by commission  CA HELD new factor of
unreliability of mail could both be considered by Court in refusing to exercise its discretion to grant relief
commission sought
CONTENT - must alert affected people of what at stake; needs enough detail to permit to respond effectively
• R v. Chester – prison officials considered moving C to special handling unit that imposed severe
restrictions; C given notice that transfer considered and invited submissions  HELD if right of inmate to
respond in writing to be given weight in sense that response will be fairly considered in decision then more
particulars required in contents of notice then given; FINDS notice – misleading and inadequate
• R v. Ontario Racing Commission, ex parte Taylor – vet gave race horse banned substance; T not know could
be suspended; received notice of hearing but argued notice not give specific info about consequences at
stake in hearing  CA HELD whether notice given is sufficient depends entirely on circumstances of case
and can only conclude that man of T’s knowledge/experience must have realized could be adversely
affected by decision; R - suggests that notice may be adequate for some individuals but not for others

Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System in Canada – Krever
Commission) [1997] 3 SCR 440

Nature of Notice depends on specific context – stage of hearing


F - We have an inquiry about future policy
o Recommendations are general and systemic
o Inquiry will engage in fact finding in order to discover what is wrong
 This will be the basis for criminal and civil liability
• Criminal will provide full blown procedural protections
• Commission resulted in many being subject to criminal liability in the Red Cross
o Justice Krever issued a series of notice at the end of the inquiry to people with reference to future
liability
o Evidence being accumulated during inquiry that does not follow what would be required under a
criminal proceeding
NOTE: Inquiries Act s. 13 recipients entitled to “reasonable” notice
I - what kind of notice should potential witnesses and individuals who may have some involvement with subject
matter of Commission get
30

H - Does the fact that Krever is naming names in the inquiry impose a duty of fairness throughout the inquiry
that would be equivalent to that in a criminal proceeding?
o Court says NO: processes are separate
 Notice was not required any earlier in the process
• Must do the Baker analysis
o Looking at the impact of the individual
 In this case it is a destruction of a reputation, which will not be sufficient to attract
procedural protection
o Choice of procedures
 Krever has done as much as possible to protect those accused (notice at the end of the
hearing was part of that attempted protection)
R – “reasonable” in circumstances will depend on who recipients are

ii. Discovery - Disclosure


• R. v. Stinchcombe set out rules of disclosure in Criminal law context; KEY finding = one must know the
case one must meet; disclosure must be complete subject only to privilege or relevance
• Cdn Pacific Airlines Ltd. v. Cdn Air Line Pilots Assoc – involved order for production of documents and
other info made by Canada Labour Relations Board at investigative, pre-hearing stage; when Assoc failed to
produce it voluntarily, board attempted to secure it on relying power of board to produce documents “in
relation to any proceeding before it”  HELD provisions not authorize compulsory discovery orders
outside formal hearing and even after set down for hearing, no room for “pre-hearing” discovery
• RULE = any claim by board to exercise discovery power must be rooted firmly in empowering statute and
not likely to be any presumption drawn as to existence to such authority in absence of express authority
• Existence of discovery rights: Nrecaj v. Canada - convention refugee claim hearing; Bailey v. Registered
Nurses' Assn (Saskatchewan) - professional discipline
• NO discovery rights in Pembroke Civic Hospital v. Ontario (Health Services Restructuring Commission) -
commission having broad mandate to order closure, amalgamation, or restructuring of hospitals in Ontario
• Cases suggest possible differentiation b/w tribunals engaged in economic and other forms of policy-oriented
regulation (CIBA-Geigy), and those adjudicating on matters involving application of more precise norms to
individual situations (ie: human rights commissions)
• Demands for discovery become attenuated to extent that person or body from which a discovery order being
sought engaged in investigation as opposed to final decision-making (Northwestern General Hospital)
• To extent that provision of discovery or making of a discovery order is matter within discretion of
administrative tribunal or agency, possible that any ruling about discovery will be subject to judicial review
not on a correctness but on patent unreasonableness standard

CIBA-Geigy v. Canada (Patented Medicines Prices Review Board) [1994] 3 FC 425 (CA)

Economic Decision subject grant low procedural fairness


F - extent of disclosure required to drug company of documents in hands of Board; seeking disclosure from
tribunal charged with reviewing prices of drugs; CIBA-G charged with overcharging of drug and company
executives seeking full disclosure from board; Board refused request for full disclosure and CIBA-G applied for
judicial review
31

H – Nature of the decision


• This is not an adversarial process
o The board is an economic regulator, and not adjudicator
 This is interesting since it is both regulator, but it also has the ability to sanction
• Court states that this is a condition of entering into the Canadian market, thus, there is no punitive issue
involved
o Thus, less duty of fairness required

Ontario (Human Rights Commission) v. Ontario (Board of Inquiry into Northwestern General Hospital)
(1993), 115 DLR (4th) 279.

More Adjudicative the process, more disclosure necessary


F – Allegations of systemic racial discrimination against a hospital in regard to employment opportunities
o NGH is subject to complaints that are made to the HRC
• HRC conducts an investigation and there is an implied confidentiality for those making the complaints
• Then the HRC appoints a tribunal, which prepares to conducts a hearing
• Tribunal requests all the documents that were used by the HRC
o HRC says NO due to confidentiality
 They argue that if they reveal the complainants, it will discourage complaints in the future
I - whether order for discovery valid
H – Order for discovery valid and upheld; judicial review application by Commission dismissed
• Once there is a hearing there is a certain amount of duty of fairness required that was not required during the
investigation
o This is an adversarial adjudicative process that requires the accused to have a certain degree of
disclosure
 Seriousness of the allegations (racism) require that accused properly defend themselves
• The Tribunal is a adjudicative process that requires a higher level of duty of fairness

iii. Delay
• Notion that undue delay in admin proceedings could amount to breach of rules of procedural fairness now
generally accepted b/c potential for person to be prejudiced by delay
• Recall Blencoe where SCC accepted both for purposes of Charter and common law procedural fairness,
delay had both dimensions in context of statutory decision making

Kodellas v. Saskatchewan (Human Rights Commission) (1989), 60 DLR (4th)

Potential of prejudice against individual as result of delay


F - One of the few cases that engages section 11(b) from the Charter (right to a timely trial) in an admin context
• K works in a restaurant and is accused of sexually assaulting women
• Complaints are against K, and the court held that the employer is liable as well
o First complaint was in 1982, then another in 1983, then there a judgment in 1989 (subject to
investigation for 7 years)
32

• There is evidence that the HRC is attempting to setup the hearing, but lacked the resources to do so (hence
the length of time)
I - Whether delay in proceedings unreasonable so as to violate employer’s s. 7 rights
H - Delay resulted in prejudice; cited affidavit that stated problems respondent had in locating witnesses and
delay contributed to fading memories – difficult to get evidence necessary to respond against complaint
• 3 FACTORS to consider in finding whether delay infringed Charter:
1) whether delay prima facie unreasonable with regard to time requirements in hearing 
2) reason for delay – conduct of parties and Commission including inadequate resources contribute to
delay
3) prejudice or impairment to alleged discriminator by delay 
• FINDS delay prima facie unreasonable having regard to time requirements
• Entire delay wholly ascribable to commission who had carriage of proceeding; Commission not explained
delay; hint of inadequate institutional resources but no real evidence

iv. Oral Hearing


• Meaning HERE = face to face encounter with actual decision maker and where relevant, other party;
• With emergence of procedural fairness doctrine, presumption in favour of oral hearings as norm disappeared
in expanded common law procedural terrain; courts deferred to board to decide proceed by way of oral or
written hearing (Nicholson and Delmar Chemicals and Baker)
• Countervailing tendency in decisions affecting rights protected in Charter and B of R; in Singh oral hearing
not necessarily universal component of PFJ under s. 7 BUT reiterate need for oral hearing where serious
issue of credibility involved (confirmed in Suresh)
• Claims to oral hearing situation is sensitive b/c necessity may depend on matters at issue in particular
proceedings rather than being feature of all exercises of relevant statutory power
• CONVENTIONAL VIEW = claim to oral hearing at highest when credibility at issue; BUT view
increasingly challenged, particularly in sexual harassment claims where strong policy considerations for
not setting up oral hearing where victim forced to confront harasser and be cross examined

Masters v. Ontario (1994), 18 OR (3d) 551

Although oral hearing may be expected, appointment at pleasure affords little procedural protection
F - M = Ontario agent general in NY; appointed by premier in exercise of prerogative power; following
complains of sexual harassment against M, premier requested team of external investigators to ascertain facts;
produced report stating M sexually harassed seven women; premier reassigned M to another position in civil
service; rather than accepting reassignment, M resigned on basis of financial settlement; M applied for judicial
review of investigator’s report alleging various breaches of procedural fairness
I - whether M entitled to have determination of whether engaged in sexual harassment placed before impartial
decision-maker and accorded right to cross-examine witnesses
H – M aware of material allegations against him and provided with adequate opportunity to be heard;
investigation neither unfair nor biased; requirements of duty to act fairly in scope of employer-employee
relationship met
• HELD not entitled to trial-type hearing before impartial decision get; four considerations in making
decision:
33

1) M office holder at pleasure – nature of employment relationship involved complete ministerial


discretion
2) Nature of interest at stake – individual wrongdoing (reputation) as opposed to broad public policy that
tends in favour of broad procedural fairness
3) Nature of proceeding – external investigation and report prepared submitted to Premier AND Premier
made decision; M complaining procedure at investigative stage – could suggest is problematic when
process is final b/c no procedures after report prepared
4) Identity of decision-maker – Premier and Cabinet = political decision
• SPPA not apply HERE; no statute pwr of decision exercised and no hearing required either by statute or law
R – departure from Singh - although credibility at issue, procedures adequately tailored to specific nature of
harassment allegations and employment relationship as one where complete ministerial discretion

Khan v. University of Ottawa (1997), 34 OR (3d) 535

Issues of credibility will warrant guarantee of oral hearing


F - K sought judicial review of dismissal of appeal from failing grade to Faculty of Law Examinations
Committee and to Senate Committee; K received no notice of Faculty of Law Committee meeting and not given
opportunity to appeal before committee; also not appear before Senate Committee
I - whether procedural fairness required K have oral hearing
H - In denying K relief committee judged her credibility adversely and should not have done so w/o affording
her in person hearing and opportunity to make representations orally
• University student threatened with loss of academic year by failing grade entitled to high standard of justice;
effect of failed year may be very serious
• Procedural fairness REQUIRED: (3)
o K gets oral hearing b/c her credibility was critical issue on appeal
o Committee must consider procedures that followed during and after exam and made reasonable inquires
to determine whether procedures proper
o K given opportunity to correct or contradict three “factors” relied on in its decision
• DISTINGUISH from student appeal of grades on basis of belief that deserve higher mark where not
ordinarily entitled to oral hearing; BUT this case different b/c determining issue before Committee was K’s
credibility
D - NOT matter turned on credibility; no allegations made against K and proceedings not adversarial;
consequence to K not expulsion or loss of academic year; distinguish from Singh where SCC conclusion that
oral hearing required to determined issues of credibility was inextricably linked to serious nature of rights at
stake (Charter rights not at stake here as in Singh)
R – characterization of interests at stake influence determination of whether oral hearing req’d or written
sufficient

v. Confidentiality

Re Napoli and Workers’ Compensation Board (1981), 126 DLR (3d) 179

Loss of Employment and allows breach of confidentiality


F – N injured back while working, and applies for disability pension. Receives 5% disability pension.
• N appeals decision
• Decision based on decision of disability officer which is based on medical reports provided by doctors
34

o These medical reports are not revealed to N


• N receives two hearings
o 1st appeal gives 4 page summary, and N is given no opportunity to respond
o 2nd appeal gives 16 page summary, and N is given no opportunity to respond
I – Was giving N summaries sufficient access to information, or was N entitled to see the medical reports?
H – Court held that when faced with summaries that alleged without attribution that N was a malingerer,
without access to the actual medical reports and the authors of those reports, he would not be able to counter
effectively the damaging evidence against them
o Procedural fairness violated
• Rejected argument that if doctor reports were open to claimants that they would be “sanitized” in order to
prevent reprisals
o On the other hand, the court held that this would encourage doctors to “prepare them with greater
care and diligence”
• However, one must note that this access to medical records was triggered by a greater amount of procedural
fairness that arose due to the consequences of a loss of a disability benefit
o Loss of employment – high amount of procedural fairness

Gallant v. Canada (Deputy Commissioner, Correctional Service Canada) (1989), 36 Admin. LR 261.

Circumstances of the case may lower the duty to disclose (fairness)


F – G being moved from a minimum institution to a maximum security institution
• Despite good behaviour, G given 48 hours notice and no reasons given
• Reasons for transfer are allegation of extortion for drug dealing, Warden refuses to reveal reasons due to
possibility of revealing sources
I – Raises the issue of the nature of the information used to justify the transfer
There is a duty of fairness, but what is the content of that duty?
H - At a minimum there is usually a duty to disclose and also a duty to give a hearing
o Warden argues that the obligation to give a hearing was met by giving him 48 hours to respond and
that the duty to disclose is overridden by the Warden’s obligations to other prisoners
o 1st Judge finds that the content of the duty to disclose was breached, but justified do due the necessity to
maintain confidentiality (case law suggests this is wrong)
o Violation of section 7 that is justified by section 1
nd
o 2 Judge finds that the circumstances lower the duty to disclose (danger to third person), which allows the
Warden to take the action necessary to maintain confidentiality (supported by case law)
o 3rd Judge (dissent) agrees with the second judge, but that if you’re going to use circumstances, there must be
shifting in the burden over to the decision maker
o The purpose of the duty to disclose is to test the accuracy of the decision’s reasons through an
informed response

Gough v. Canada (National Parole Board) (1990), 45 Admin. LR 304.


*Charkaoui (Re) (F.C.) [2004] 3 F.C.R. 32

If duty to disclose (fairness) violates, must show evidence to justify the use of section 1
F - G on parole for five and half years
35

o Enters into stable relationship, graduates from community college and has a job waiting for him
o G is picked up by the police for violating his parole
o Informed that there has been complaints against him (sexual assault and drug offences)
 Not told who, when or where the complaints were made
 Protecting informants is an obligation imposed on the parole board when there is reason to
believe that there is going to be a threat
o Consequence for G is in the situation where unchallenged evidence will put him back in prison
o In a trial circumstance, he would have an opportunity to respond, which could end up in the same
result
I - Is G afforded the same degree of procedural fairness as a trial because the consequences are the same?
H - Crown argues that restrictions of parole lower the duty of fairness granted to G
o Parole system requires that the officers rely on the information they receive due to the nature of their
supervisionary role
o Court rules in favour of G
o Information is kept confidential b/c there is reason to believe that relasing the information will result
in people getting hurt
 Only way parole board’s decision can be upheld is if it constituted a ‘reasonable limit’ under
section 1 of the Charter
• Did not meet this onus since there was no evidence that parole system without
reveialing sources

7. Institutional Decisions: Consultations

International Woodworkers of America, Local 2-69 v. Consolidated-Bathurst Packaging Ltd. [1990] 1 S.C.R.
282

Conditions for Consultation to meet duty of fairness


F - There had been a slump in the market for what C produces, and C wants to possibily shutdown the plant
o Contract for the plant comes up and they enter into negotiations with the union
 Anything that is relevant to negotiations should be on the table
• Did C make the decision to close the plant during or after the negotaitions?
• Labour relations board finds against C
o Draft version of original decision is discussed in commission meeting before a final decision is made
 Final decision was against precedent in ealrier decisions
• Was there a policy shift as a result of the meeting which resulted in the decision?
o If so, this causes problems since these meeting are secret
• Nothing wrong if meeting was about applying policy and law to the decision
o Set of conditions must be met, however, in terms of the relationship between the decision and the
policy making body (consultation)
I - Was the person who hears subject to direction?
H - Three condition must be met
o 1) It is not compulsory to consult in the meeting
36

o 2) Meetings that discuss the application of policy to law are acceptable. Meetings that discuss the
facts of specific case are not
 Concerned whether there is a procedural violation
o 3)Individual decision maker must be made on the concious of the the decision maker
• Court finds that these conditions are met

Tremblay v. Quebec (Commission des affaires sociales) [1992] 1 S.C.R. 952

Compulsory consultation breach of duty of fairness


F - Issue is over medical equipment : how broad is the concept of medical equipment?
o Did it inculde certain types of equipment
o Equipment being provided under a social welfare program in Quebec
• The issue here is about law and policy
o Must set policy that is accordance within statuory framework and within its budget
• Original decision maker allows T to be entitled to a benefit
o But there is a process where all decisions must be vetted by a lawyer
 In this case the decision bypasses the lawyer and goes to the commisisoner himself, who
rewrites the decision, and denies the benefit
• There is a process where everyone gets together and discussed the draft decision
o As a result of the discussion the decision is reversed
o Draft decision  commissioner rehears  consensus discussion  final decision
 This is not a policy process
D - Court finds this troubling since the consulation process is compulsory (violates first condition in Int’l
Woodworkers) which has the effect of shifiting the decision
o This consensus has not opportunity for the applicant to be heard
o The issue is the commissioner’s direct involvement in the decision making process
• Issue is that individual decisions should not be made on the relationship between the decision maker and the
politial figure above

Ellis-Don Ltd. V. Ontario (Labour Relations Board) [2001] 1 S.C.R. 221

Discussion of facts of case violation of duty of Fairness


F - Employer’s associations exist to consolidate negotiations between employers and unions that are involved in
the same industry
• In this case an employer’s association requires by law that the individual unions supply a list of all
employers that employ their members
o One employer is left off the list (E)
 Which would allow E to hire non-unionized workers
• Issue is whether the leaving E off the list was intentional
o What was the intent
 A matter of fact
• Hearing requires that there be a factual base
• Reason to believe that there is a change between the draft and the final decision
o Draft appears to have gone against the union
37

o A meeting by OLRB is held where the decision is discussed


• Remedy here sends the decision back, and there is a re-hearing with a different panel
I – Was the change in draft and final decision factual so as to be breach of natural justice?
D - Consultation on policy is very different from consultation on the facts
o Discussion on policy is fine, but discussion on what should be done a specific case is not
 Decision for the individual case should be left for the decision maker

Payne v. Ontario (Human Rights Commission) 192 D.L.R. (4th) 315

Exceptional circumstances for examining how Commission came to decision when protected by
deliberate secrecy
F - P made complaint to commission alleging victim of discrimination at hands of her employer; commission
staff investigated complaint; report of investigation recommend commission refer P’s complaint to board of
inquiry
o BUT matter considered at three meetings of commission and in end commission decided not to
request minister appoint board and in effect dismissed P’s complaintHuman rights legislation says
that the commission shall investigate every complaint
o The decision not to refer the claim to a tribunal can be done, but must be done so with reasons
o P is convinced that the decision not to refer was a strategic decision, rather than based on the facts of
the claim
• She wants the examine the people who formed the reasons for her not being referred
• Investigator appeared to be in a position that there has been a case of discrimination when the
recommendation is made to the commission
H - Court holds that P has some right to find out the basis of the decision for not being referred to a Tribunal
R – In exceptional circumstances the applicant may be permitted to obtain evidence to determine how a
Commission came to its decision, but no inquiries may be made into the deliberations of the decision makers,
which is protected by deliberate secrecy

*Pritchard v. Ontario (Human Rights Commission) [2004] S.C.J. No. 16

Participation in Consulation process negates Solicitor-client privilege


• P worked for sears and she brings forward allegations of sexual harassment that after her termination
o She signed an agreement with Sears not to bring any actions against them
• Commission refuses to refer her to a Tribunal
o She challenges this lack of referral on the basis that there was a consultation with a lawyer by
commission
• Counsel for the human rights commission claims solicitor-client privilege
o However, if the lawyer participates in the decision making process, his consultation is not protected

8. Bias
38

i. Actual Bias

Re Energy Probe and Atomic Energy Control Board et al. 15 D.L.R. (4th) 48

Proof of Actual Bias requires direct and conclusive evidence


F - Olsen works for Phillips cables, a contractor providing electrical cables, which have been provided the job
to unit 5 & 6 of pickering cable station owned by Ontario Hydro
o Olsen has a direct pecuniary connection with Ontario Hydro
• O now on the AECB commission to look at licence application
o one of the applications comes from the Ontario Hydro for a licence for units 5 & 6
o If OH is successful in the application, Phillips cables stands in the position of getting further money
being the pervious contractor for cables for those units
• the contracts for bids for refurbishing the units will be open following the granting of the licence and there
is no guarantee in the process that Phillips would get it
o but there is reason to believe that Phillips would get it
I - allegation were that Olsen was actually bias (not reasonable apprehension of bias), therefore burden was to
prove that he was directly linked
R - the break in the chain for actual bias occurs where there is an open process for the bidding process and
Olsen has no control over the bidding process
• If Phillips wins the contract Olsen will benefit – but it is not enough to establish that is something else
happens he will benefit
• the court says you have to show If A then B then C (direct pecuniary benefit)
• In this case all they should show was If A then B and then if C then D doesn’t work this way
o But, the other problem is that if there are decisions about atomic energy you need people who
understand the issues and therefore need people with background and it will almost always be an
industry based background who will therefore always have a potential for bias

ii. Apprehension of Bias

Committee for Justice and Liberty v. Canada (National Energy Board) [1978] 1 S.C.R. 369

Reasonable Apprehension of Bias of an individual exists if reasonable probability of impartiality


F -Application made under s. 44 of National Energy Board Act to Board by Cdn Arctic Gas Pipeline for
construction of McKenzie Valley Pipeline
o Chairman of board at time of application = Crowe who had been president of Canada Development
Corporation before appointment
 Cdn Arctic Gas Pipeline formed by “study group” of companies interested in constructing
pipeline from north
• Development Corp became member of group and Crowe involved in its discussions
and planning until joined board
I - whether present member of panel hearing application can be said to be free from any reasonable
H - Apparent commitment to pipeline on part of Crowe as member of Development Corp created reasonable
apprehension of bias
39

• Vice of reasonable apprehension of bias lies not in finding correspondence b/w decisions in which Crowe
participated and all statutory prescriptions under s. 44 (ie: actual bias) but rather in fact that he participated
in working out some of terms on which application made and supported decision to make it
• Reference HERE to public confidence in impartiality of decision making; did not matter that he had nothing
to gain or loose, appearance of bias was enough; earlier involvement of C with company in question was
enough to disqualify him
R - Reasonable apprehension arises where there exists a reasonable probability that will not act in impartial
manner
Dissent: set out the test for Reasonable Apprehension of Bias
• this test has nothing to do with actual bias, the test has do with the idea that if a person is in a position that
could make a decision
o therefore the court talks about the “reasonable person” and what that person would decide if they had
all the appropriate information
• Test for the apprehension of bias:
1) Must be Reasonable
2) It must be held by reasonable and right minded people (these are legal fictions) (so it would be someone
who would be impartial)
3) They must apply themselves to the question (what is the question – clearly the lose of impartiality with
regard to the particular issue of the decision)
4) They must obtain the required Information
5) They have to view the matter realistically and practically (what were the constraints on the person
making the decision, what were the limits)
6) They have to think the matter through
7) They have to ask if the decision maker either consciously or unconsciously would be bias (it is
important distinction between conscious and unconscious – unconscious lose of impartiality is nothing
to be blamed for)
o Grandpre did not find that he was subject to reasonable apprehension of bias
o his test does place a certain amount of trust in the idea of human integrity

Canadian Pacific Ltd. V. Matsqui Indian Band [1995] 1 S.C.R. 3

Test for Institutional Reasonable Apprehension of Bias


F - Amendment to the Indian Act which granted bands the authority to enact bylaws to raise property taxes on
the reserve
o the bylaw had to be approved by the Minister, but once approved the bands could assess property and tax
the property on that reserve
o in this case there was train track that went through the reserve which was owned by CPR and the band had
assessed the land for the tracks and levies tax against the CPR
o land on which the tracts rest satisfies the restrictions on the tax amendment has to be “in the reserve”
o CPR argues that they are not in the reserve – it is not Crown land allocated to the reserve
o Federal Court refuses the exercise their discretion of judicial review saying that CPR has to go through the
appellate body set up through the Indian Act, the band structure
o the CPR says that the appellate body of the band structure will be bias against them because of the
meaning of the phrase and the question in issue
I - Would a band council member looking at the issue have any interest in the outcome, given the fact that a
decision which finds that land in the reserve would increase the revenues of the band?
40

R - Creates an institutional version of the Justice and Liberty Test set out by Grandpre (Dissent of Justice and
Liberty)
o Substantial number of cases requirement
o Question of personnel versus structure

Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817

Reasonable Apprehension of Bias resulting from evidence used that is comes from biased source
F - Immigration system is very well established, the statutory requirements for hearings are not really
problematic
H - Note written by Lorenz does not evidence actual bias
o Note evidences reasonable bias, because does the person who had written the note was be presumed to be
partial, and the note played a central role in advising or assisting the adjudicator
o This is sufficient to create reasonable apprehension of bias

Re Paine and University of Toronto 115 D.L.R. (3d) 461

Further example of Reasonable Apprehension of Bias


F - Tenure appointment, if you go through the tenure appointment process and if you fail then you are given a 1
year terminal process and let go
o P goes for tenure
o the process requires that he get letters from external referees from people known in the field
o there is a committee of members from your own department and an external department member (panel of 5
people)
o letters are also solicited from every member in your department
o one of the colleagues writes a very strongly negative letter against Paine, he then becomes a rep on
the committee for tenure
o the committee votes against his tenure the dean refuses to overrule the decision and Paine in unable to get
the decision changed
R - Court says that P has not been given a fair hearing, that there is a reasonable apprehension of bias that the
person who had written the letter and the presence of the person on the committee and other factors (the absence
of opportunity for P the know the contents of the letter)
o all the factors together means that there is a reasonable apprehension of bias

Great Atlantic & Pacific Co. of Canada v. Ontario (Human Rights Commission) 13 O.R. (3d) 824

Known views on a subject can be used as evidence of Reasonable Apprehension of bias


F - Ms. Backhouse has a very established role as a human rights advocate in professional discrimination against
women
o she is put in a position of making a decision about miracle mart because they come in front of the tribunal
on which Ms. Backhouse sits
o A&P then bought the company and they then become subject to the complaint
o she is also a part of a complaint with A& P in another case
o the A & P is concerned that she will use the decision of the first complaint to be precedent for the second
case
41

o she is in favour of pay equity, she is not found to be bias because she supports pay equity
R - she is found to be bias because she is involved in something else that happens at the same time as the
tribunal that would affect her view

Large v. Stratford (City) 9 O.R. (3d) 104

Need for qualified board members vs. evidence of reasonable apprehension of bias
o Became one of the most important cases for human rights in Ontario
o Involved mandatory retirement provision in the human rights legislation in Ontario – there is an exemption,
you cannot be discriminated on age after the age 65
o L argues that Chairman of the board in decision was biased
o Statements made by Chair that reflected his views on the general desirability of mandatory
retirement (opposed to it)
o Case never posed questions about desirability of mandatory retirement
o Called upon to decide whether the evidence established that mandatory retirement age was a
occupational requirement
o Comments are not evidence of Reasonable Apprehension of bias
o HR inquiry boards require experts that will frequently hold personal views
 Excluding those with personal views would exclude those best qualified

Old St. Boniface Residents Assn. Inc. v. Winnipeg (City) [1990] 3 S.C.R. 1170

Actual Bias must have evidence of actual business relationship


F – There is land that is undeveloped, and a developer who would likfe to develop the property, and it requires
rezoning of an adjacent piece of land
o Rezoning will remove the possibility as being used as a park
o Group pf residents (B) want to maintain the land as a park
o Person placed to put in charge is alleged to have to close a relationship with the lawyer of the developer
o Councillor has made it open that he is in favour of the development
 Votes in favour of the rezoning
• As a result the rezoning application goes through
H – Court found no actual bias
o No statutory requirement that elected officials refrain from political positions when in office
o Not required to act as impartial like a judge
o There must be evidence of an actually business relationship rather than a personal relationship
o Mere presence of those who express the same views does not create reasonable apprehension of bias
o This is a difficult principle to apply in a municipal context since people will tend to know each other
o Must at the particular facts of the particular cases

Save Richmond Farmland Society v. Richmond (Township) [1990] 3 S.C.R. 1213

Closed mind during hearing will lead to Reasonable Apprehension of Bias


F - Mr. Moby is openly on one side of a development opinion
• SRFS opposed to development
• M is opposed during the campaign by those who are opposed to development during an election
42

o Thus, it is quite clear that there are very strong positions on the issue
• Hearings on development are struck down on the basis that there wasn’t proper notice
• M makes statement that appears to say that he has made up his mind and that there is nothing that will stop
the development despite hearings
o Thus, argument made that M’s mind was closed when the hearings were held
• During the coarse of the hearing the person who makes the decision must be open to
dissuasion
I - Did M have a closed mind?
H – Court finds reasonable apprehension of bias
R - The fact that someone has a general policy stance does not necessarily imply a closed mind
• Closed mind goes to the individual case

Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities) [1992] 1 S.C.R.
623

Statements made during hearing evidence of Closed Mind


R - Wells appointed to the public utilities commission (a well known populist)
o Commission has a monopoly over the telephone operations and rate increases
• Senior management of company increase pension plan dramatically
o Wells publicly states that this is an outrage and accuses management of making consumers pay for
these pensions through rates increases
• Wells in a position to determine whether or not rate increases are justified
o Hearing held
 Wells continues to make comments after hearing has begun, which make it clear that he has
prejudged the outcome
• This is closed mind
R - Evidence goes towards a closed mind when the mind is suppose to be open during the hearing

iii. Statutory Authorization

Brosseau v. Alberta [1989] 1 S.C.R. 301

Reasonable Apprehension of Bias in relation to statutory authority


F - B subject to a criminal investigation and documents are made available to security commission
• the criminal investigation fails at the pre-trial hearing because the statute of limitations has run out
o Chair of commission was also in charge of directing the investigation, but will not make the final
determination
I – Does the Chair acting as investigator and adjudicator in same case created reasonable apprehension of bias
H - Reasonable apprehension of bias cannot be said to exist if chairman not act outside statutory authority and
no evidence to show involvement beyond fulfilling statutory duties
o MAXIM nemo judex in causa sua debet esse underlies doctrine of reasonable apprehension of bias;
PRINCIPLE = no one ought to be judge in his own cause
• BUT EXCEPTIONS to nemo judex principle – where overlap of functions occurs authorized by
statute assuming constitutionality of statute not in issue
43

o To disqualify Commission from hearing matter HERE some acts of Commission going beyond its statutory
duties must be found
o Other FACTORS to consider other than statutory authorization:
• Specialized body more likely that same decision makers have repeated dealings with given party on
number of occasions and for variety of reasons  securities commissions by nature
• Objective of Act – aimed at regulating market and protecting general public; protective role gives
special character to bodies that must be recognized in assessing way functions carried out under Acts

2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool) [1996] 3 S.C.R. 919

Reasonable Apprehension of Bias created where indv. Both prosecutor and adjuticator
F - Complaint regarding the violation of a liquor license must go through a hearing process to determine
whether to revoke the license or not
o there is a lawyer there at all times
o the lawyer, however, drafts the documents which are essentially the charges
o and then the lawyer acts as the advisor to the person who could lose their license
I – Does operational structure of the process create reasonable apprehension of bias?
H – Operation structure of process gave rise to reasonable apprehension of bias
o Lawyers are presumed to be able to take both sides of the issue, in the practical sense they
don’t do this, but as a lawyer you should be able to put out of the door the personal commitments and make
the best legal argument
• but if you are too involved in too many roles as a lawyer there is a higher standard
• Therefore the court found that a lawyer in this position would not be able to do this without a
reasonable apprehension of bias being questioned and being impartial in a substantial amount of
cases
R - Prosecuting counsel must in no circumstances be in position to participate in adjudication process b/c
functions of prosecutor and adjudicator cannot be exercised together in this manner

E.A. Manning Ltd. v. Ontario Securities Commission 125 D.L.R. (4th) 305

Reasonable Apprehension of Bias created when going beyond statutory authority


F - Securities Commission issued policy statement about sale of pennies stock and expressed concern of abuses
by certain securities dealers
o OSC issued policy statement about sale of pennies stock and expressed concern of abuses by certain
securities dealers
o M brought action and alleged inter alia that policy statement ultra vires commission and ON Court of Justice
agreed statement w/o statutory authority (Ainsley)
• Commission appealed decision and issued press release reiterating concerns addressed in policy
statement
o Chair of OSC also gave press interview to same effect
o OSC issued notices of hearing to M who sought order prohibiting commission from proceeding with hearing
b/c commissioners were involved in creation of policy statement
I - (1) Does policy statement create predisposition toward outcome such that OSC should be prohibited from
proceeding with two hearings due to reasonable apprehension of bias?
o (2) Should new commissioners should be disqualified by doctrine of corporate taint (institutional bias)?
44

H - prejudgment contained in policy statement coupled with continued effort of OSC to vindicate its position
created reasonable apprehension of bias
• However, No corporate tainting (no institutional bias)
o Conclusions in the policy statement demonstrated that subject matter was decided prior to hearing
o Distinguished from Brosseau: Commission acted outside its statutory authority by issuing policy statement

MacBain v. Canadian Human Rights Commission et al. 22 D.L.R. (4th) 119

Statutory Authorization fails as defence when violation of section 7 and section 2(e) of BofR
F - Human rights case about functional overlap
o human rights is seen by many people as an ideology
o Sexual Harassment case launched against M
o CHRC has the statutory responsibility to investigate the claim and are responsible for appointing the
Tribunal
o Commission then becomes the prosecutor in front of the tribunal
H - Fundamental wrong with the linkage that allows all the functions to combine into a single institution
o Court found this problematic
R - Statutory authorization fail as defence when applicant able to challenge successfully validity of terms of
legislation by reference to norms such as those contained in s.7 of Charter and s. 2(e) of Bill of Rights

9. Independence
Alex Couture Inc. v. Canada (Attorney-General) 83 D.L.R. (4th) 577

Actual Decisions made will determine presence of Independence


F - A collects and renders animal by-products to make animal food
o They buy three other companies and enter into a partnership with another company is the space of a
couple of days, which brings them under investigation under the Competition Act
o Tribunal membership is 4 judges and 8 lay people appointed by the governor general
o Jurisdiction setup in a way so that only judges can ask questions of law whereas questions of fact
will be asked by the entire tribunal
o Tribunal has the ability to order the break-up of a monopoly
 Makes order to return companies to the way they were before take-overs
• These orders have jail time and fines if the orders are not fallowed
o A argues that the body is not independent enough to make such a decision
I - Was the Tribunal constructed in such a way that made it not independent
H - Court finds that Tribunal does not violate principle of Independence
R - Concerned with the structure of the Tribunal
• If a the lay people were making the same decisions as judges, there may be issues of bias (because why else
would there be judges)
o Lay people would be considered to be making judicial decision, which they are not independent
enough for
• In this case, however, there were not making the same decisions
45

Canadian Pacific Ltd. V. Matsqui Indian Band [1995] 1 S.C.R. 3

Factors for determining Independence


F – Indian bands across Canada passed bylaws creating tax regimes pursuant the Indian Act
o Bylaws challenged by C on grounds that independent tribunals were not established
o Tribunals were appointed annually by the Chief and Band Council and were not protected from
arbitrary dismissal (also salary was not mandatory)
H – Court found that the Tribunals were not independent
o 1) Lack of financial security for tribunal members
o 2) Uncertain tenure
o 4) Tribunal members appointed by same Chief and Band Councils who levy taxes

2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool) [1996] 3 S.C.R. 919

Substance influence will determine Independence


F - MAIN arguments for lack of independence
o term of office of directors (appointed by gov’t for term of not more than five years)
o method of dismissal (only for specific reasons);
o ALSO all contracts with director contain clause
o gov’t may revoke appointment at any time, w/o notice or compensation on grounds of
embexxlement, mismanagement, gross fault or any ground of equal seriousness, proof of which lies
upon gov’t
I - Whether Regie lacked independence
H - Directors’ conditions of employment meet minimum requirements of independence
o Requirements do not require all administrative adjudicators hold office for life; fixed-term appointments
acceptable; BUT removal must not simply be at pleasure of executive
o CONCLUDES directors have sufficient security of tenure b/c sanctions available for any arbitrary
interference by executive during directors’ term of office; and NOT proven Minister might influence
decision-making
R – FOCUS on substance (influence) rather than form (existence of contacts)

*Ocean Port Hotel Ltd. V. British Columbia (General Manager, Liquor Control and Licensing Branch)
[2001] 2 S.C.R. 781 (Referred to at 671 in text but not excerpted)

Explicit legislation may strip right of independence – unless a constitutional right


F - O a hotel and pub in Squamish
• RCMP finds that O is violating liquor laws (5 different offences)
o O investigated by senior inspector, and hearings are held before another senior inspector
 Senior inspector rules against O and shuts them down for two days on the weekend
• O appeals and is heard before the liquor board appeal board, which has a hearing where they call evidence
o Three RCMP officers called and witnesses on behalf of O (mini trial)
o Liquor appeal board upholds five of the original offences
• O argues that the liquor appeal board is not independent
o Members are part time, paid, and appointed at pleasure (low guarantee of independence)
46

 Looking at security of tenure, financial security and intuitional independence that applies to
appointed at pleasure on a per case basis
• Only paid when they sit, and they don’t have any role other than appearing before
these hearings
R - Court holds that the only reason this stands is that it is explicit in the statute
o If the statute is unambiguous, then the issue of independence does not arise
• Thus, if a government decides to strip certain rights that are not covered by the Charter, and those
rights are stripped explicitly without any room for the common law, then the government has the
right to do so

*Bell Canada v. Canadian Telephone Employees Assn. [2003] 1 S.C.R. 884

Tribunal implementing gov’t policy factor in determining Independence


• A Tribunal is appointed, and a hearing is being conducted
o The hearing is conducted over time such that those people appointed to the Tribunal’s term runs out
 Can those people continue to sit on the Tribunal to finish the hearing?
• Impartiality challenged for two reasons
o (1) Commission power to issue guidelines binding on Tribunal
o (2) power of Tribunal Chairperson to extend members' terms in ongoing inquiries
I - whether independence and impartiality of tribunal compromised by commission powers?
H – independence/impartiality not compromised by power to issue guidelines and extend terms in ongoing
inquiries
o Tribunal’s main FUNCTION = adjudicative and it is not involved in crafting policy and serves purpose of
ensuring government policy implemented
o RESULT = tribunal should be held to high standard of independence and standard applicable lower
than court
o Guideline power does not undermine independence nor impartiality of Tribunal
o guideline power limited; and statute and administrative law contain checks to ensure that not
misused
o Reasonable person informed of facts would not conclude members whose appointments extended likely to
be pressured to adopt Chairperson's views
R - Tribunal’s function in implementing gov’t policy must be considered when determining independence of
tribunal – more appearance of independence required if more prominent and more policy focused function

C. SUBSTANTIVE REVIEW
1. Defining the Standard
Pragmatic and Functional Approach (Pushpanathan v. Canada)
• Characterizing the Decision (Question answered by the decision maker) –DO THIS FIRST
o Characterizing these questions will come back and help in the direction of the Pushpanathan factors
with preset goal in mind
o What Questions? (fourth factor P & F Approach
 Statutory authority
• What questions can they answer?
47

o Fact
o Mixed Fact and Law
o Law
 Look at the range of questions
• Purely General
• Statutory interpretation
o Ex: collective agreement
• Constitutional
o Charter
o Division of powers
o Aboriginal rights
o Polycentric
• Developed by SCC to determine which standard of review should be applied to a tribunal decision under
review
• Purpose of approach: to ascertain how much deference the legislature intended to give the decision made by
the tribunal
o Based on separation of powers: court may not review the wisdom of government policy
 Court’s role is to supervise tribunals to ensure that they act lawfully (protect the rule of law)
• Must defer to the intention of the legislature as expressed in the statue
• Four factors should be not be applied in a technical or mechanistic way
• Requires the consideration and weighing of four factors for the purpose of determining how much deference
is owed to the tribunal decision
1) Privative Clause or Statutory right of Appeal:
• Simple Approach:
o Yes: What is the significance since this is not necessarily determinative, but will push
towards higher deference
 Look at the wording (substance)
• References to Law, mixed, fact
• References to Appeal or review
o If it calls for an administrative appeal, cannot go directly to court
(must be followed)
 No privative clause can completely shield a decision
o No: Absence of a privative clause doesn’t necessarily mean anything (comes out neutral)
• If statutory right then standard of review will either be reasonableness of correctness
o Indicates legislative intent that tribunal’s decision be subject to review
o Right of appeal restricted to questions of law or jurisdiction: towards correctness
• If privative clause
o Show legislative intent to restrict court review
o Stronger privative clause higher deference
o Language of privative clause will determine amount of deference
 Three types
• 1. weakest: decision is “final and conclusive”
• 2. stronger: decision is “exclusive jurisdiction”
48

• 3. strongest: attempts to prevent judicial review altogether


o Not even absolute privative clause may prevent a court from reviewing
(Crevier v. Quebec)
• Presence or absence of the clause does not in and of itself give you access to the courts
2) Expertise:
• Simple Approach
o Question that goes to the qualifications of the person making the decision
o Two necessary steps
 Looking at actual expertise
 Looking at expertise relative to a judge (comparative)
o Look at a contrast between experience and legal education
o Three broad categories in which decision can be drawn
 General Public
• For certain decisions this is all that is required
 Expert
• Must have certain amount of experience in order to
make decision
 Lawyer
• Going in the direction of general questions of law,
presumption of a general jurisdiction judge
• 1) Presumed experts in procedure
• More you can show the expertise is court like, the more
open to judicial review
• Who has more expertise on the question that the court is asked to review: tribunal or court?
(Comparative Question)
o Matters is whether the tribunal’s expertise on the question at issue (not whether or not the
tribunals
o Tribunal must have more expertise than the court to be accorded deference
• Court expertise
o Questions of law, statutory interpretation and common law
o Boundaries of statutory authority
o Human rights issues
• Factors considered: (former more deference)
o Broad power vs. circumscribed powers
o Policy development vs. adjudicative
 Policy relevant to extent used to decide issue
o Experience or institutional expertise with similar problems (higher deference)
o Expertise of panel members requirement (higher deference)
o Variety of regulated fields vs. one field
o Broad mandate to protect public health (higher deference)
 Or broad remedial powers that allow flexibility to address a variety of problems
o Professional discipline panel (higher deference)
o Who yields power is important:
 Minister or Cabinet (policy considerations)
49

 Elected bodies

3) Statutory Framework:
o Simple Approach
 Excersising the legislative purpose of the statute, which requires statutory interpretation
 Several parts
• Focus on statute as a whole and the specific section in terms of the whole
o Intersection of what authority was granted to the decision maker and what was
applied
 i.e. what is the discretion, or the authority to decide
• Look at the wording of the statute and external evidence (evidence of policy)
o External evidence would include any kind of policy directives
o Looking at the intent of the legislature
• The more that a person has policy making ability, the harder it will be to be subject to
judicial review
o Look at the statute in entirety, and ask whether the legislature intend the decision to answer this type
of questions, and whether the wanted the courts to back off
 Then look at the particular provision that grants the authority, and look at the interpretation
of the assigned duty
• Did the legislature intend to give this person the intended authority to interpret this question Factors
for purpose of legislation
o Protection of vulnerable groups (less deference)
 Role traditionally played by courts
o Complex administrative schemes (more deference
 Balancing of competing interests and public interests
• Factors for purpose of provision:
o Requires the selection from a range of remedial choices, to consider policy issues or to
balance multiple interests or considerations (more deference)
 Characterized as polycentric
o Exercise of discretion “in public interest” or “in its opinion” invite consideration of policy
(more deference)
o Resolution of disputes (less deference)
o Requirement that decisions be made expeditiously and prevent delays (more deference)
4) Nature of the Decision:
• Different issues by the same tribunal will attract different standards of review
o Questions of fact: highest deference
o Questions of mixed fact and law: deference
o Question of law: low deference
• Issue with more deference:
o Public policy
 Polycentric question that is hard to review
o Weighing of factors
 Social, economic, technical and scientific questions
o Balancing of competing interest
50

 Choice of orders from a variety of order permitted by statute


• Issue with less deference:
o Questions of statutory interpretation (Mosanto)
 Exception when interpretation requires special technical expertise
 Statutory provisions that define the scope of tribunal’s jurisdiction always attract
correctness
 Constitution Act

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation [1979] 2 SCR 227

Foundation Case moving away from Jurisdictional Analysis


F - province of NB has a provincial liquor monopoly and they are faced with a strike of the employees in the
liquor stores
o They decide to keep some of the stores open
• Provision in the legislation that keeps the employers from replacing the employees
o “The Employer shall not replace the striking employers or fill their position with any other
employee”
o Government attempt to keep the stores open by using the managers (allowed), and hiring more
employees to fill the other positions (not permitted)
I - what is the difference between “replace” and “fill their position” – it all depends on how you read the word
“or” and how you view the whole sentence?
• At least four readings that are equally plausible readings for the meaning of the provision
o Issue here is not what is the correct answer to the question
o Issue is who gets to decide what the correct answer is
• Who gets to decide in effect a question of statutory interpretation?
• Two forms of statutory interpretation
o question of law
• where you are giving a general meaning
o mixed fact and law
• where the meaning is being applied to the facts in question
o Cannot be a question of pure fact
• Court must determine how much deference they have to give to the labour board for the statutory definition
of the provision
o Labour board decided that the provision precludes replacing striking employees or replacing them in
the sense of giving their job to other employees
H – Court uses old approach (collateral tact)
o Don’t challenge the question or the answer, you challenge the jurisdiction of the body answering the
question
 Questions of jurisdiction are fully questions of law
• Court says that they have no way of telling what the actual provision means, therefore there are several
options that are equally valid
o court leaves the decision alone because there are so many options and they don’t know the answer
and therefore they are going to defer to the board that made the decision
51

Union des employes de service, local 298 v. Bibeault [1988] 2 SCR 1048

Establishment of Pragmatic and Functional Approach


F - School Board enters contract with Firm A who has collective agreement with union; Firm A goes on lawful
strike; School Board lawfully terminates the contract and enters into another contract with non-unionized Firm
B; union claims should have rights against Firm B consistent with agreement with Firm A; Board granted
application of union SO Firm B bound by legal strike
I - Whether labour commissioner and Labour Court had jurisdiction by s. 45 to make ruling; what standard of
review (correctness or patent unreasonableness) to be applied to review
H - interpretation of s. 45 is in error and errors jurisdictional in nature
• Instead of thinking about preliminary or collateral question to describe jurisdictional Questions, NOW
consider legislative intent – whether legislature intend Question to be within jurisdiction conferred on
tribunal
• Outlines two circumstances in which tribunal exceed jurisdiction b/c of error:
1) if Question of law at issue within jurisdiction, only exceed if errors in patently unreasonable manner
2) if Questions concerns legislative provision limiting tribunal’s powers mere error will cause to lose
jurisdiction and subject to judicial review
• Pragmatic and Functional approach ESTABLISHED - "Courts should use pragmatic and functional
analysis" to determine whether issue was of jurisdiction-conferring species;
o means examining: (1) wording of enactment, (2) purpose of statute creating tribunal, (3) area of
expertise of its members and (4) nature of the problem before tribunal
R - Where issues of general law or external statutory standards are in issue, tribunal's entitlement to deference
diminishes or disappears

United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd. [1993] 2
S.C.R. 316

Privative Clause cannot absolutely prevent Judicial Review


[Preclusive language can not insulate a tribunal from judicial review – the absence or presence of a
privative clause will not be a determinative factor, however it highlights parliamentary intention towards
deference][Decisions based on expertise should receive a higher level of deference – questions of fact not
law]
• Final doesn’t mean final
• In determining the appropriate standard of judicial review the court must interpret the legislative provision
in question in light of the nature of the particular tribunal and the type of questions which are entrusted to it,
having due regard for the policy enunciated by the court that, in the case of specialized tribunals, decisions
upon matters entrusted to them by reason of their expertise should be accorded deference
• In the presence of a full privative clause, judicial review exists, not by reasoning worded in the statute, but
because of a matter of constitutional law, judicial review can not be ousted completely (crevier) – judicial
review is always in principle possible, no legislature can compeletely take away the right to judicial review
– even if legislation says that he decision is final, the courts will still review it, however, the presence of a
privative clause will go to saying that the decision maker should be given a high level of deference
52

Canada (Director of Investigation and Research, Competition Act) v. Southam Inc. [1997] 1 S.C.R. 748

Establishes Reasonableness Standard


F - Tribunal’s ruling that S’s acquisition of newspapers had impact on competition; Director applied to tribunal
that S’s competition would substantially reduce advertising and wanted order for S to divest itself from
community newspapers;
 Question for tribunal – whether S reduced competition and what should remedy be;
 HELD S’s newspapers were in different product markets but ordered remedy that S should divest itself of
some papers
I - Whether tribunal’s ruling should be quashed and on what standard of review
H – Tribunal’s conclusion must stand; conclusion supported by reasons that can stand up to a somewhat
probing examination; remedy settled by tribunal allowed to stand
• CONCLUSION on standard of review = factors weigh both for and against deference; SO standard fell b/w
correctness and Patently Unreasonable so third standard adopted of reasonableness simpliciter
• Court noted that unreasonable decision is one that in the main is not supported by any reasons that can stand
up to “somewhat probing examination”
• Tribunal’s finding referring to daily newspapers and community newspapers not competitors difficult to
accept BUT not unreasonable one fundamentally w/o logical and evidentiary underpinning
• Judicial restraint needed if cohesive, rational and sensible system of judicial review to exist
• Tribunal’s choice of remedy = matter of mixed law and fact SO must be reviewed according to standard of
reasonableness; FINDS not decided to be unreasonably when decided S’s proposed remedy would not be
effective
R – establishes standards of review lie on SPECTRUM with Patently Unreasonable and correctness at one end
and “new” standard of Reasonableness in middle  difference b/w "reasonableness" review and "patent
unreasonableness review” lies in immediacy or obviousness of defect - obvious on face then PU and if must
search for defect then NOT PU

Pushpanathan v. Canada (Minister of Cirizenship and Immigration) [1998] SCR 982

Defines 4 factors for Pragmatic and Functional Approach


F - P in Canada illegally and he has connections with the Tamil Tigers
• Canada’s signatory to UN convention on refugees
o P can apply for convention refugee status where you have to demonstrate to the board that you
will be in danger upon returning to country of origin
o P in danger in he returns to Sri Lanka because he was part of the Tamil Tigers
• P gets the Canadian permanent resident status
• P convicted of a serious crime and therefore gets his permanent resident status revoked and he is
therefore subject to deportation
o P applies for convention refugee status again, and the appeal board rules against him on the
following ground you cannot invoke the UN convention if you have been engaged in actions that
are contrary to the purposes of the UN, which he has been
I - What is the standard of review that should be applied to the appeal board decision?
R - Court sets out 4 factors to look at in determining which standard of review to apply (Pragmatic and
Functional Approach):
53

1) Privative Clause: which is a direction from the legislature of the options available to challenge
decisions of statutory authority (Yes or NO ) but the presence or absence of the clause does not in and of
itself give you access to the courts
2) Expertise: Who made the decision? We are concerned with the nature of the background and the
qualifications of the person in that position who made the decision *(what does that statute require, what
is the job description) – if the expertise is something that the court feels comfortable with then the court
will be more willing to step in and review the decision
3) Statutory Framework : the purpose of the 1) legislation and 2) the provision
4) Question : what is the question that the decision maker actually answers

Canada (Deputy Minister of National Revenue – M.N.R.) v. Mattel Canada Inc. [2001] 2 SCR 100

Expertise concern the issue rather than the tribunal


[Questions of law are judged on a correctness standard][determining a tribunals relative expertise is an
important factor to be considered in the pragmatic and functional approach to judicial review]
o Case regarding the taxing of toys and whether the duty is applied to the price at the manufactory or at the
boarder - the case went to the interpretation of statutory language, and was thus judged on the correctness
standard – even though the expertise of the tribunal is in fact concerning this issue

Dr. Q v. College of Physicians and Surgeons of British Columbia [2003] 1 SCR 226

Questions of Fact low Defernce


F - Allegations against Doctor that he becomes involved with patient, and doctor denies allegation
o Brought before disciplinary committee
 It comes down to credibility, and the committee believes the complainant over the Doctor
o Reviewing judge re-examines the evidence and reverses the decision
H - Issue is that of credibility which require a high amount of deference since it is question of fact
o Pashpanathan factors applied
o Reviewing court undertaking legal task which is necessary for the pragmatic and functional
approach to be applied (mistake made by the BC supreme court judge)
o The message here is that once a decision has been made, a reviewing court must take the proper steps to
challenge a decision

Law Society of New Brunswick v. Ryan [2003] 1 SCR 247

Application of P & F and Reasonableness Standard of Review


F - Ryan a lawyer in NB, who screwed up and was disbarred
o has been going through personal problems: marriage, drinking
o Duty of fairness is met is this case since the process for disbarment is very similar to that of a trial
o Ryan appeals the Law Society’s judgment on the penalty (disbarment for life)
o This judgment was an administrative decision since the Law Society has its authority given to it
through statute
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o Ryan appeals on the basis of mercy due to his personal problems


o Appeal determines that Ryan has done nothing to correct his problem and that the penalty should
stand
I - What is the standard of review regarding the decision that goes to the penalty?
H – Court finds standard of reasonableness: decision will be unreasonable only if no line of analysis within
given reasons that led court to conclusion
o Defining the standards of review:
o Must come up with one of three standards
 Correctness
 Reasonableness
 Patent Unreasonableness
o Not a sliding scale
 There is a single threshold
 but there is a continuum of deference
• this is confusing since a continuum is not three points
• seeing a sloppy transition in language
o Determining the Standard: Pashpanathan
o Ask four questions
 Privity Clause: Does the statue contain a privity clause?
• Professionals are normally allowed every avenue of appeal: no privity clause
 Relative Expertise: What is the expertise of the decision maker relative to the reviewing
judge
• Comparative question
• Must the expertise required, the expertise of the judge, the expertise of the decision
maker, and the relative expertise between the two
 Statute: Two pieces
• Look at the statute in entirety, and ask whether the legislature intend the decision to
answer this type of questions, and whether the wanted the courts to back off
• Then look at the particular provision that grants the authority, and look at the
interpretation of the assigned duty
o Did the legislature intend to give this person the intended authority to interpret
this question
o
 Nature of the Question: What was the precise question being answered by the decision maker
o What question did the person answer?
• Question will fall into on of three categories: law, fact or mixed law and fact
o Law: low
 This decision will always rely on case law, which will rely on either
the common law or statutory interpretation
• Good indication that the decision was made on a question of
law
o Fact: high
o Mixed law and fact:
55

o When looking at each of these factors you determine where on the continuum of deference this
would put the decision
 No privity clause: low
 Greater necessity for expertise and great difference in relative expertise: high
o When Applied to this case
 No privity clause: low
 Expertise: high
• They are lawyers making decisions about lawyers
 Statute: mid-high
• Pushing to high but not as strong
 Question: mid-low
• Pushing towards low but not as strong
o When the court finds some factor pushing is opposing directions and there isn’t a radical imbalance,
we will give this a reasonableness standard
 From this point on the reasonableness standard will be applied

*Barrie Public Utilities v. Canadian Cable Television Assn. 225 DLR (4th) 206

Characterization of the Question will determine direction of the P & F Approach


F - CCTA seeks access to power poles of power utilities for purpose of supporting cable television transmission
lines; in past, CCTA's members rented space from utilities under private contract; BUT since 1996, parties
unable to reach agreement; CCTA obtained order from CRTC requiring utilities to grant it access to their power
poles on terms stipulated by CRTC; Utilities successfully appealed order to FED CA finding interpretation of
Act incorrect
I - whether CRTC had power to maker order
H – On standard of correctness, interpretation of Act by CRTC incorrect
APPLIES P&F APPROACH - least deferential standard of correctness:
1) Presence/absence of privative clause or statutory right of appeal - Telecommunications Act grants right of
appeal – LESS deference
2) Expertise of tribunal relative to reviewing court on issue in Question - purely questions of law SO within
province of judiciary; court's expertise in matters of pure statutory interpretation superior to CRTC - LESS
deference
3) Purposes of legislation and provision - Act accords CRTC essentially adjudicative role – LESS deference
4) Nature of Q – Q of law – LESS deference
Dissent – appropriate standard = reasonableness simpliciter and finds interpretation reasonable
• Important to case and important to separate constitutionality of CRTC’s interpretation from statutory
interpretation in Q b/c combining them could skew standard of review
• Central issue HERE = appropriateness of CRTC’s access order; constitutional Q raised only as attack on
order and should not serve to dictate level of scrutiny by reviewing court
• Order itself not constitutional matter, but simply applying its statute; = admin decision that consisted of 2 Qs
– (1) interpretation of statute (= Q of law); (2) appropriateness of specific terms of decision (= Q of mixed
law and fact where courts owe deference)
APPLIES P&F APPROACH – some deference on standard of reasonableness simpliciter
56

1) Presence/absence of privative clause or statutory right of appeal - while statutory right of appeal suggests
more searching standard and less deference, must consider other factors before making final determination
2) Expertise of tribunal relative to reviewing court on issue in Q - When enabling legislation in issue,
specialized agency better equipped than court to interpret SO on even purely legal Q within its expertise
owed deference; AND if knowledge of technical meanings of terms and factual situation of poles relevant,
issue deeply enmeshed in context and domain of CRTC's expertise – MORE deference
3) Purposes of legislation and provision - MORE deference
4) Nature of Q – Q of law; BUT even pure Qs of law may be granted deference where other factors of P&F
approach suggest legislature intends such deference
R – case indicates importance of how matter characterized; on same facts/order came to different standard

*Toronto (City) v. C.U.P.E., Local 79 232 DLR (4th) 385

Error in law: Standard of Correctness


F – Man working as playground supervisor who is found guilty of sexual assault who applies for the same job
after serving his conviction
• Man reinstated in old job after convincing arbitrator that he did not commit the crime
H – Court held that the person who gave the job back to the man engaged in a rehearing of the allegations of
sexual abuse
o This meant that the person hearing the complaint took into account questions of law
 The person sitting on this tribunal did not have the jurisdiction to answer such questions and
in effect made an error in law
• Standard of Correctness applied
Dissent – This is where the dissent attacks the pragmatic and functional approach and the fault in only allowing
three standards to be applied

*Voice Construction Ltd. v. Construction & General Workers Union, Local 92 238 DLR (4th) 217

Standard of Review based on P & F approach: correctness


F – Company puts out request for workers, and workers are sent out
o Company may send a list back that puts people on a do not rehire list
 Reasons must be given for being put on list
• In this case women is put on the list, and union ignore the list and sends her anyways due to its lack of being
convinced by companies reasons
• Company sends her back
I – What is the proper standard of review for the Labour union?
H – Court does not differ even though this case is based on labour relations
• Pragmatic and functional approach applied once again
o Privative clause
 Look at whether there is a appeal on law or the facts, and whether the appeal can only be
based on jurisdiction
• The more general the appeal, the less deference
 Privative clause will attempt to block the appeal from reviewing question of law
o Expertise
57

 Legal authority: are there individuals that occupy certain positions that could be said to have
the legal authority where the courts would have no regular reason to be involved?
• For a time the answer was Yes, but it seems with the application of the P and F
approach that this is pulling back
o Statutory purpose
 this will be keyed into the specific language of the statute
 why did they choose these specific people to make decisions
o Question
 Fact: Patent Unreasonable
 Mixed fact/law: application of law in this case

*A.U.P.E. v. Lethbridge Community College 238 DLR (4th) 385

Generic standard will not determine standard of review


F – Person hired to do a job, but fails to provide results, and the person is fired
• Grievance process determines that she was unjustly dismissed
o Grievance officer awards the remedy of damages
• Unjust dismissal based on a non-culpable reason, which requires certain steps to be followed before she was
fired
I – Did the grievance officer have the jurisdiction to grant the remedy?
H – In labour decisions there is a generic standard of patently unreasonable
o done so by governments intentionally to keep the court out of labour arbitrations
o NOTE: This also applies in Workers Compensation cases
• Court states that it will not apply this standard anymore, and will determine the standard on a case by case
basis

*Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services) 242 DLR (4th) 193

Standard of Review question of law cannot be pre-determined by parties


F – Case deals with a pension plan for retired employees
o Managing of the pension plan should always look out for the interest of the beneficiaries
o Winding up a pension plan will often lead to a surplus
o Who gets the surplus?
 Employees or Employer
H – Who has the expertise?
o Why would we assume that a judge is an expert?
o Court finds that the parties agreed to a standard of reasonableness, but were not allowed to do so
o Determining the standard of review is a question of law
 Parties can’t agree upfront
o Court then applies analysis to determine standard of review
o On the question of law
 Hilewitz – turned down immigration on grounds that they will be a drain on the social
welfare system
58

2. Applying the Standard


Canada (Attorney General) v. Mossop [1993] 1 SCR 554

Applying Standard of Correctness


F - M employed in TO as translator from Dept of Secretary of State and on June 3 attended funeral of father of
man M described as his lover; M testified two men knew each other since 1974 and resided together since 1976
in jointly owned and maintained home; had sexual relationship; beneficiary for each other; bereavement leave
allowed for death of member of “immediate family” (definition included father of common law spouse which
was defined as living for continuous period of at least one year with person of opposite sex); M denied leave
and challenges decision as discrimination pursuant to provisions in Human Rights Act
I - whether decision to deny leave based on sexual orientation was correct
H – Neither ordinary meaning, context, or purpose indicates legislative intention to include same sex couples
with “family status”; absent clear intention, decision of board to “read in” was wrong on standard of correctness
• Factors leading to finding standard - no privative clause, legal Q, tribunal had no particular expertise
• Standard of review applicable to Canadian Human Rights tribunal = correctness; on that standard found
decision of Board that read in interpretation and find denial of bereavement to be discrimination was wrong
• Conducting review on standard of correctness engaged in fresh consideration of issues so narrower analysis
R - FIND Parliament’s clear intent throughout CHRA was to not extend to anyone protection from
discrimination based on sexual orientation
• absent Charter challenge of constitutionality, when Parliament’s intent is clear, courts and adminintrative
tribunals not empowered to do anything else but to apply law
Dissent – standard of review patent unreasonableness; analysis on PU standard focus on holding so detailed
analysis  would have upheld tribunal’s reasoning and granted bereavement leave
• Tribunal concluded that M’s relationship could come within scope of “family status”; in accordance with
principles of curial deference tribunals findings of fact unassailable except in face of PU error
• Well established that human rights legislation has unique quasi-constitutional nature and given large,
purposive and liberal interpretation
• FINDS decision of legislature to leave “family status” undefined is evidence of clear legislative intent that
meaning, like meaning of other undefined concepts be left for Commission and its Tribunals to define

Nanaimo (City) v. Rascal Trucking [2000] 1 SCR 342

Standard of Correctness to Stat. Interp. Standard of PU applied to discretion


F - RT applied for and received permit from City to deposit soil on its site with intent to conduct soil processing
operations; After RT started delivering soil, neighbours complained; City inspector recommend order be issued
compelling owner to remove pile of soil; City held public meeting where heard from local residents and RT
THEN City council passed resolution declaring pile nuisance pursuant to s. 936 of Municipal Act and ordered to
remove within 30 days but not comply; passed 2nd resolution ordering to remove within 15 days and if not then
would be removed by City at RT’s cost; still not comply and RT deny access to City agents to remove
I - whether s. 936 empowered City to pass resolutions declaring soil nuisance and ordering removal
H – s. 936 empowered City to issue resolutions and ordering removal; two standards applied HERE -
correctness applied to municipality’s interpretation of its statute BUT PU applied to its exercise of discretion
• Process of delineating municipal jurisdiction = exercise in statutory construction - broad and purposive
59

• Legislature by including phrase “or other matter or thing” NOT intend to expand scope of s. 936 to allow
municipalities to declare almost anything nuisance; apply eusdem generis (“limited class” rule); BUT finds
soil falls within one of two listed categories b/c would be absurd if not included
• THEN reviews resolutions and order; on performing standard of review analysis, concluded largely with
reference to expertise that on standard of correctness applies to municipality on statutory interpretation;
BUT given that made correct determination on scope of s. 936, patent unreasonableness applied to its
exercise of discretion on whether to order company to abate nuisance
R – anti-deference to municipalities on statutory interpretation so Q of whether acting within or outside statue =
Q of law so standard of review is correctness; BUT pro-deference standard of PU for decisions made within
statute where accountable to community leads

Canada (Director of Investigation and Research, Competition Act) v. Southam Inc. [1997] 1 S.C.R. 748

Application of Reasonbleness Standard


F - Tribunal’s ruling that S’s acquisition of newspapers had impact on competition; Director applied to tribunal
that S’s competition would substantially reduce advertising and wanted order for S to divest itself from
community newspapers; Q for tribunal – whether S reduced competition and what should remedy be; HELD S’s
newspapers were in different product markets but ordered remedy that S should divest itself of some papers
I - whether tribunal’s ruling should be quashed and on what standard of review
H – tribunal’s conclusion must stand; conclusion supported by reasons that can stand up to a somewhat probing
examination; remedy settled by tribunal allowed to stand
• CONCLUSION on standard of review = factors weigh both for and against deference; SO standard fell b/w
correctness and PU so third standard adopted of reasonableness simpliciter
• Court noted that unreasonable decision is one that in the main is not supported by any reasons that can stand
up to “somewhat probing examination”
• Tribunal’s finding re daily newspapers and community newspapers not competitors difficult to accept BUT
not unreasonable one fundamentally w/o logical and evidentiary underpinning
• Judicial restraint needed if cohesive, rational and sensible system of judicial review to exist
• Tribunal’s choice of remedy = matter of mixed law and fact SO must be reviewed according to standard of
reasonableness; FINDS not decide unreasonably when decided S’s proposed remedy would not be effective
R – establishes standards of review lie on SPECTRUM with PU and correctness at one end and “new” standard
of RS in middle  difference b/w "reasonableness" review and "patent unreasonableness review” lies in
immediacy or obviousness of defect - obvious on face then PU and if must search for defect then NOT PU

National Corn Growers Assn. v. Canada (Import Tribunal) [1990] 2 SCR 1324

Application of Patently Unreasonable Standard


F - Decision of Cdn Import Tribunal which ruled US subsidies of grain corn importations into Canada causing
“material injury” to grain corn production in Canada; concerned tribunal’s interpretation of s. 42 of Special
Import Measures Act, specifically phrases “subsidizing of the goods” and “material injury”
F - whether tribunal’s interpretation of s. 42 unreasonable to cause judicial review
H - tribunal’s interpretation of s. 42(1) not patently unreasonable and must stand; different reasons for
upholding
WILSON – concern review of factual record convert deferential review into de novo appeal
60

• Starting point = CUPE; discusses context within which decided and why so influential; reviews historical
evolution of judicial review including DICEY and rule of law (see my brief)
• Adoption of “reasonableness” test in CUPE marked important shift away from Dicey’s conviction that
tribunals should be subject to same standard of review as courts; DICKSON’s approach in CUPE quickly
adopted
• NOT begin with Q of whether tribunal’s conclusions are patently unreasonable; but being with Q of whether
tribunal’s interpretation of provisions in its constitutive legislation that define way set out answering Qs is
PU  If not interpreted statute in PU way then courts not review whether conclusions unreasonable
• Clear tribunal dealing with kind of issue set up to deal with; AND while interpretation of s. 42 might be
unsatisfactory to those concerned with securing more liberal interpretation of int’l trade policy, cannot be
said to be so PU that construction not supported by relevant legislation
GONTHIER - general inquiry of court should be to determine if decision-maker acted outside scope of
mandate by reason of its decisions being PU; important look at reasoning so review extends to factual findings
• S. 76 contains privative clause – with certain limited exceptions, tribunal’s decision final and conclusive;
RESULT = court ONLY interfere if tribunal acted outside scope of its mandate by reasons of its conclusions
being patently unreasonable
• Reasonable to refer to int’l agreement at outset of inquiry to determine if any ambiguity in domestic
legislation so tribunal not act unreasonably in consulting GATT; interpretation of GATT not unreasonable
NOTE: General agreement that analytical approach and relative expansion of scope of deference has evolved
since Corn Growers; BUT courts not gone back to place neat parameters on analytical methodology; Corn
Grower’s not overruled yet and still good law

Domtar Inc. v. Quebec (Commission d’appel en matiere de lesions professionnelles) [1993] 2 SCR 756

Under Standard of Patently Unreasonable decision can be inconsistent based on the facts
F – Worker injured causing to miss two weeks work
 Decision not to pay him for time missed, b/c pant was closed during days he was away
 Worker challenges decision and wins
H – Administrative decision makers are permitted to make inconsistent deicsion based on the facts of as long as
they do not appraoch patently unreasonable
o PU: decision can make inconsistent decisions, must simply confine decision to not being idiotic
 However, possible remedy under section 7 since it doesn’t allow arbitrary decisons

Toronto Board of Education v. Ontario Secondary School Teachers’ Federation, District 15 [1997] 1 SCR
487

Under Standard of Patently Unreasonable court takes a fact based approach


F – Man applied to be vice principal of school 31 times and is rejected every time
 Subsequently the man starts to write hate letters and even threatens the board members who keep denying
him
H – Court held that when making a determination based on a standard of Patently Unreasonable the court takes
a fact base approach to determine of tribunal made an massive erro
61

Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817

Application of Reasonableness standard


• RULE = discretionary decisions ONLY reviewed on limited grounds such as bad faith of decision-makers,
exercise of discretion for improper purpose and use of irrelevant considerations; general doctrine of
“unreasonableness” sometimes applied
• Though discretionary decisions given considerable respect, discretion MUST be exercise in accordance
with boundaries imposed in statue, principles of rule of law, principles of admin law, fundamental values of
Cdn society, principles of Charter
• Pragmatic and Functional Approach recognizes standards of review for errors of law appropriately seen
as spectrum with certain decisions entitled to more deference and others to less (Southam, Pushpanathan)
• THREE standards of review: patent unreasonableness (least strict = more defence), reasonableness
simpliciter (middle ground), correctness (most strict = less deference)
• NOTE: more discretion left to decision-maker, more reluctant court should be to interfere
• APPLIES P&F approach - FACTORS to be considered:
1) Privative clause and its wording – NONE in Immigration Act but judicial review requires leave from
Federal Court under s. 82.1; s. 83(1) requires certification of “serious Q of general importance” before
appeal to CA  should be LESS of defence on issues related to certified question
2) Expertise of decision-maker – Minister or delegate  militates toward MORE deference
3) Purpose of Provision and Act – apply “open-textured” legal principles; purpose = to exempt applicants
from requirements of Act  signal MORE defence; BUT decision relates to rights and interest of indv
in relation to gov’t rather than balancing interests various consistencies  LESS deference
4) Nature of Problem – considerable appreciation of facts of individual’s case and not
application/interpretation of definitive legal rules (= Q of fact)  militates toward LESS deference
APPROPRIATE STANDARD = REASONABLENESS SIMPLICITER
• Unreasonable decision – in the main not supported by any reasons that can stand up to somewhat probing
examination; look to see whether reasons support it (Southam)
• HOLD failure to give serious weight to consideration of interests of children constitutes unreasonable
exercise of discretion conferred by section
• For exercise of discretion to fall within standard of reasonableness, decision-maker should consider
children’s best interest as important factor, give them substantial weight and be alert, alive and sensitive to
them

3. Constitutional Jurisdiction of Tribunals


*Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v.
Laseur [2003] 2 SCR 504

Implied or Explicit jurisdiction to answer Qs of law will allows Constitutional jurisdiction


F - Cases deals with people with chronic pain, where there isn’t anything wrong with them but they are in pain
 Benefit based entirely on whether the decision maker believes the
claimant
o WCB decides to cut off those people who have been given benefits for
chronic pain
62

 This is a violation of a human rights according the Section 15 of the


Charter
I - Does the decision maker have the ability to answer questions based on questions of the Constitution when
they are person with a simple directive?
H – Appeals tribunal has jurisdiction to consider Charter HERE - explicit jurisdiction to decide Qs of law
arising under challenged provisions, jurisdiction presumed to include authority to consider their constitutional
validity and presumption not rebutted; would have found implied jurisdiciton
• From principle of constitutional supremacy flows PRACTICAL idea that Canadians should be entitled to
assert Constitutional rights and freedoms in most accessible forum available, w/o need for parallel
proceedings
• To allow administrative tribunal to decide Charter issues does not undermine role of courts as final arbiters
of constitutionality; administrative tribunal decisions based on Charter subject to judicial review on
correctness standard; ALSO constitutional remedies available to admin. tribunals does not include general
declarations of invalidity
• TEST = administrative tribunals that have jurisdiction, explicit or implied, to decide Qs of law arising under
legislative provision are presumed to have associated jurisdiction to decide constitutional validity of that
provision
• Relevant FACTORS in discerning implied jurisdiction =
o Statutory mandate of tribunal - whether deciding Qs of law necessary to fulfilling mandate effectively
o Interaction of tribunal in Q with other elements of administrative system
o Whether tribunal is adjudicative in nature as opposed to exclusively fact finding
o Practical considerations - tribunal's capacity to consider Qs of law
• Party alleging tribunal lacks jurisdiction to apply Charter may rebut presumption by pointing to explicit
withdrawal of authority to consider Charter; or statutory scheme clearly leads to conclusion legislature
intended to exclude Charter from scope of Qs of law

NOTE: still uncertain whether applicant MUST first raise Charter argument at admin level although tribunal
not have power to declare statute constitutionally invalid OR can take claim directly to court and side-step
tribunal

*Paul v. British Columbia (Forest Appeals Commission) [2003] 2 SCR 585

May answer Constitutional questions but standard is correctness


• Court clearly says
o The jurisdiction to answer questions for section 35 of the Charter is given to the decision maker
o The burden on the decision maker is to get the questions right since the standard of review is
correctness

*Haida Nation v. British Columbia (Minister of Forests [2004] SCJ No. 70

4. Obligation to Exhaust Statutory Remedies


* Bourdon v. Stelco [2005] SCJ No. 35

Must exhaust Administrative Remedies before pursuing legal actions


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o Pensioners attempt to go into a Quebec court when there was a judicial remedy in Ontario
o Court finds that administrative remedies must be exhausted in Ontario before going to Quebec

* Vaughan v. Canada [2005] 1 S.C.R. 146

Must exhaust Administrative Remedies before pursuing other legal actions


• In latter cases the emerging jurisprudence is that the explicit standard of correctness is not necessarily the
case
o Must exhaust all administrative remedies
 Typically once a constitutional question is raised all other proceedings must stop until the
constitutional question is answered
 In these cases the argument states that this principle is inefficient and must
• Court determines in this case that there administrative process that must be exhausted before bringing other
legal actions
o V attempted to bring an action of negligence against the government

Harelkin v. University of Regina [1979] 2 SCR 561

Administrative Remedy must be exhausted before judicial remedy


F – H a student that flunks out of program
 Director of program attempts to meet H, but H makes it very difficult to have a meeting since he is under the
expectation that he will be removed from the program
 H’s case eventually comes before a committee that expels him without having an opportunity to hearing
 H goes to court and argues that he was not granted procedural fairness
H – Court rules in favour of H, but also that there was an appellate alternative remedy in the administrative
structure (Senate)
 In this case there is a remedy under certiorari since there is a breach in the duty of fairness
o However, the court finds that the remedy should have been reviewed by the Senate
o The alternative remedy would have been a re-hearing at the Committee level
 The question is does the Senate have the same jurisdiction of the court, and to actually give the remedy that
H is seeking?
o Would have be convenient for H to go directly to the Senate rather than going directly to court?
 In this case the committee and the Senate offer the same remedy, thus, granting the remedy is unnecessary
o Senate would have corrected any fault that was committed by the Committee

Canadian Pacific Ltd. v. Matsqui Indian Band [1995] 1 S.C.R. 3

Procedural Review: all decision; Substantive Review: current decision


 Allegations of bias, and the court found that there were reasonable grounds for the allegations
 Court found that adequate remedy was going through the appeal process of the administrative structure even
though these bias would be present in the appeal process
 Preliminary applications for judicial review will not be granted too early in the process
o Must what until there is an actual decision
 Raises the question: If a Committee/Tribunal makes a decision, you have a right to an appeal, and that right
to an appeal, the court has a rule that the decision made after the appeal represents the decision
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o Statutory right of appeal must be exercised before there can judicial review
 Duty of fairness questions could be asked for the entire process, however, the substantive review will go
directly to the appellate tribunal
 Does the appellate tribunal have the jurisdiction to provide the remedy the concern of the claimant
o If not, the argument for judicial review before the appeal will not be granted

Shore Disposal Ltd v. Ed de Wolfe Trucking Ltd. (1976), 72 DLR (3d) 219
 S trucks waste in the province of NS, and competitor is doing same thing without license
 Company goes to court to declare that the other company is operating without a license and an injunction
 The Court rules in favour of S, but finds that they will not enforce an injunction since the administrative
remedy has not been exercised

5. Discretion
Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3

Conditions imposed on decision maker when exercising discretion


F - S = applicant for landed immigration status; Minister issued certificate under s. 53(1)(b) of Immigration Act
to effect that S member of inadmissible class in s. 19 and was danger to security of Canada; certificate = prelude
to order deporting S from Canada; decision to deport S made although there was possibility that his “life, liberty
and security of the person” would be in serious jeopardy in Sri Lanka b/c of serious prospect of torture
I – When exercising discretion did the decision maker do so in accordance legislation? (Discretionary decision)
H - Decision is unreasonable if the decision maker ignored an international agreement that were material to the
decision being made
o There were guidelines that required the decision maker to take international agreement into account
• Court did not say that if you take this into account you’ll get a certain result
o looking at the materials does not mean there will necessarily be certain result (discretion), but the
decision maker is required to take them into account
• thus, they are challenging the way in which the discretion is exercised rather than the actually result of the
decision
• Decision to deport
o This decision has a basis which is discretionary
 Thus, there are certain factors that must be weighed when making the discretionary decision
• Standard of Review
o Discretion with regard to terrorism against the discretion of torture
 Based on complex considerations that are fact based
• Leads to very high levels of deference
o Applying Baker and Pushpanathan factors creates a patently unreasonable standard of review
• Is it possible to set condition on what should be looked at by the decision maker?
o YES

Re Sheehan and Criminal Injuries Compensation Board (1973), 37 DLR (3d) 336

Discretion unchallengeable as long as within purpose of discretion granted


F - Compensation board to compensate those who are victims of crime
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o S a victim of crime while in prison


• Person making the decision looks at case and says “no way”
o Draws a distinction in the category of victims
 Criminals
• Scheme is not directed towards criminals (not purpose of legislation)
• Remedy could have sought remedies elsewhere, and the decision maker reads this as
barring him from a claim
 Innocent
• Purpose of the scheme is to compensate the innocent
• Trial found that the decision maker took into account irrelevant factors
o Alternative remedies, crime to took place in penitentiary
H – Court overruled trial decision
o If anyone one of the factors is relevant, the decision is valid
o Look at the purpose of the exercising of discretion granted
 Thus, decision is valid unless there is an abuse of the purpose of the discretion

Shell Canada Products Ltd. v. Vancouver (City) [1994] 1 SCR 231

Discretion outside the boundaries of the authority delgated


F - S was owned by royal dutch shell which had heavy involvement in south Africa (apartheid days)
o there was large pressure internationally to discontinue operations in south africa
• S put out calls for tenders for its gas stations in Vancouver
• Vancouver passes resolution that it will no longer do business with S due to South African connection
• Problem arises since Chevron also owned company doing business but was not targetted in the same way as
Shell
• Shell argues that Vancouver did have the jurisdiction to perform this actions
o Brought in irrelevant facts
H - Vancouver divides its activities into two parts
o Corporate
 Freedom of contract: allows it to enter contract with whom ever it chooses (minority)
o Policy/Lawmaking
 Policy making influenced and decided the corparate decision (majority)
• Did Vancouver have the jursidiction?
o Purpose  legislation  municipality  Charter: requires the city to look after the interest of its
citizens
 Interests: international, federal, provincial and municipal
• Vancouver is limited to the municipal interests given to it by the province and the
charter
• The issue is an internaitonal affair, and outside the interests of the city
• When authority is delegated, that auhotrity is limited to the jurisdiction and interest that is delgated
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Slaight Communications Inc v. Davidson [1989] 1 SCR 1038

First case to establish that the Charter applies to anyone who exercises statutory auhtority
• S. 32 appears to restrict the Charter to government actors
o This cases extends this to anyone exercising statutory authority
 Statutory authority : Delegated authority to decide that flows from the government
• D sells advertising for S, and is successful year after year, and he is fired for no apparent reason other than
something personal
o Works in relatively small environment, and the consequences have a significant effect on his
reputaiton
• Remedy requires the employer two things
o Positive :Letter that includes only those facts that are mutually agreed by the parties to have a
positive effect to D reputation
o Negative:S prohibited from answering any questions that are beyond the answers given in the letter
 Can’t say anything negative of him
• This remedy came from the fact that it became apparent that there were mistakes made in the decision to
dismiss D
• Does Section 2(b) of the Charter apply to these orders?
o The act of taking the statutory authority by the labour arbitrator allows the Charter to apply
• If the person making the decision and the fact that its statutory authority, does that make me take into
account the Charter when making the decision, and when making that decision, can the decision be
considered answering a Charter question which will be subject to judicial review on those grounds?
• Can the decision maker construct a remedy that takes into account the loss of income?

Lalonde v. Ontario (Commission de restructuration des services de sante) (2001), 56 OR (3d) 505

Political failure by Commission allows review of discretionary decision


F - Provinces of Ontario faced with high health care costs and needed to save money
o Came to conclusion that hospitals needed to be shutdown
• Creates The Commission that had mandate to help health services restructure
o Decisions of commission were not binding on the Minister, but the Minister had the discretion to
close hospitals
• Commission held hearings around the province
• There are both Public and Catholic hospital (largely French relics)
o Montfort is the only pure French hospital left in Ontario
 Commission goes into Ottawa and orders the shutdown of Montfort
• Decision of the Commission challenged on the basis of s.15 and others of the Charter (language based), and
the court rejected every single one
o Cannot invoke Charter until hospital is actually shutdown
H - However, court rules that the Commission failed to take into account the unwritten principles of the
Canadian constitution
o Looking at Quebec Succession Reference they argue that there are the four principles of the
constitution including the protection of minorities (interesting argument since they shutdown section
15)
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o They also find a statute in Ontario that guarantee services for the protection of minorities, and
prohibits shutting down facilities such as Montfort due to a lack of resources
• With a minister there are two branches
o There is the delegation of decision making authority down the hierarchy
o There is the policy side, which will guide the decision making branch
o Court is saying that there is political failure that would inform the Commission to take into account
when making decisions

6. Delegated Legislation
Thorne’s Hardware Ltd. v. Canada [1983] 1 SCR 106

Must be significant evidence to prove discretion exercised in bad faith if within jurisdiction
F – Deals with the expansion of authority for the harbour board
• Federal government has jurisdiction over the St. John’s Harbour (port)
• Irving Oil builds new port facility outside the boundary the Federal jurisdiction, that allows them to escape
the tax that would be associated with it
• Federal government redefines the boundaries of St. John’s Harbour to bring the new port into their
jurisdiction
o This is done through an order in council
• Irving Oil challenges this on the basis that this an abuse of delegated authority
o Exercise of authority in bad faith (Duplessi)
 Exercise of discretion for another purpose for which the authority was granted
• Federal government argued that this was part of the National Port Authority’s municipal plan
• Court rejects the argument on the fact that there is insufficient evidence to show an improper purpose that
would reveal bad faith
o An order that is acting within its jurisdiction will not be subject to challenge unless there is
significant evidence to show an improper purpose

Cox v. College of Optometrists of Ontario (1988), 52 DLR (4th) 298

Delegated authority must occur within the confines of the delegated jurisdiction
F – Deals with issue of realtionship between opticians (sell galsses) and optometrists (prescribe glasses)
o Case addresses conflict of interest problem
o Rules at the time prevented opticians and optometirsts from sharing the same space to prevent such a
conflict of interest
o Issue in this Case is that Imperial Optical rented to Dr. Cox or the basis that he only pays per day for using
the office space (pays less than normal rent)
o This office is continuous with but seperate from Imperial Optical
o Cox is found to be in conflict of interest under the Health Disciplines Act
o Conflict of interest is a jursidiction assigned to the College
 College has delegated authority defined by means of regulations, «conflict of interest »
• Regulatory defintion takes the form of a long list of examples
o Cox argues that defintion given for conflict of interest is beyond the jurisidciton given to the College
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o Argues that conflict of interest must have material evidence of conflict of interest
 An example would be evidence of direct bias
H - Court held in favour of the College
o Must look at the purpose of the regulation
 Underlying purpose of legisaltion is prevention not punishment
• the court has no trouble ruling that the authority to regulate is the authority to set the
proper terms of practice
R – Delegated authority must occur within the confines of the delegated jurisdiction
o in this case the jursidiction allowed the delgated authority to define the proper terms of practice
o The jursidiction to define is a broader jurisdiction than to apply
o The jurisdiction to define would have boundaries
 This would require a dertemination of what standard or review to apply

7. Discretion of the Court: Remedies


Immeubles Port Louis Ltee v. Lafontaine (Village) [1991] 1 SCR 326

Remedy no granted since applicant acted failed to mitigate loss


R - Village has the jurisdiction to issue municipal by-laws
o By-laws are typically instruments of taxation (property tax)
 Village initiates an improvement tax to undeveloped property
 I brings challenge against by-law based on the argument that there is a procedural failure
o I not given notice of the by-law as required by Quebec law
o Seeking a deceleration nullity which would result a remedy of returning taxes that had been paid
over the past 5 years
 In this case there is a statutory requirement of procedure that is claimed to be violated by the Village
 Court rules in favour of I, but refuses to grant the remedy
o Courts do not have to grant judicial review (discretionary remedy)
 Court finds that procedures had been violated but refused to grant the remedy since I had
waited too long
• Company knew that they should have been notified for 5 years and waited to
challenge

Howe v. Institute of Chartered Accountants of Ontario (1994), 19 OR (3d) 483

Must have a decision for remedy to be granted


 H ends up before disciplinary committee, and report is produced
 In the course of the hearing, H is refused access to the report, and makes claim before court that he can’t
make adequate defence
 Notice  Report (Confidentital)  Hearing Date
o H applies for access before hearing date
 Court says that report was not confidential and there is a breach in the duty of fairness, but can’t being
application for judicial until after the hearing
 There must be an applicable decision, before the court will proceed with judicial review
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Air Canada v. Lorenz [2000] 1 FC 494

Must wait for decision before challenging before a court


 L comes before an adjutivator for an unjust dismissal hearing, and the lawyer that has been appointed to
hear is representing another client in an unjust dismissal clam
 AC argues that there is resoanble apprehension of bias
 Court rules that AC must wait until a decision is made before the claim of apprehension of bias is made

Homex Realty and Development Co. Ltd. v. Wyoming (Village) [1980] 2 SCR 1011

Remedy will not be granted in applicant acted in bad faith


 Court found that duty of fairness had been breached
 However, court found the H had unacceptable behaviour, and refused to grant the remedy