*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
3
*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
6
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
7
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
9
1. Introduction
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
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
• 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
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
• 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)
• 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
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
• 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
Mount Sinai Hospital v. Quebec (Minister of Health and Social services) [2001] 2 SCR 281
*Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour) [2003] 1 S.C.R. 539
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
• 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)
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
6. Choice of Procedures
• 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
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.
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
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
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
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
CIBA-Geigy v. Canada (Patented Medicines Prices Review Board) [1994] 3 FC 425 (CA)
Ontario (Human Rights Commission) v. Ontario (Board of Inquiry into Northwestern General Hospital)
(1993), 115 DLR (4th) 279.
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
• 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
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
v. Confidentiality
Re Napoli and Workers’ Compensation Board (1981), 126 DLR (3d) 179
Gallant v. Canada (Deputy Commissioner, Correctional Service Canada) (1989), 36 Admin. LR 261.
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
International Woodworkers of America, Local 2-69 v. Consolidated-Bathurst Packaging Ltd. [1990] 1 S.C.R.
282
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
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
8. Bias
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i. Actual Bias
Re Energy Probe and Atomic Energy Control Board et al. 15 D.L.R. (4th) 48
Committee for Justice and Liberty v. Canada (National Energy Board) [1978] 1 S.C.R. 369
• 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
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
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
Great Atlantic & Pacific Co. of Canada v. Ontario (Human Rights Commission) 13 O.R. (3d) 824
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
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
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
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
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
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
2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool) [1996] 3 S.C.R. 919
*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)
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
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?
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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”
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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
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Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation [1979] 2 SCR 227
Union des employes de service, local 298 v. Bibeault [1988] 2 SCR 1048
United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd. [1993] 2
S.C.R. 316
Canada (Director of Investigation and Research, Competition Act) v. Southam Inc. [1997] 1 S.C.R. 748
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
Dr. Q v. College of Physicians and Surgeons of British Columbia [2003] 1 SCR 226
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
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
*Voice Construction Ltd. v. Construction & General Workers Union, Local 92 238 DLR (4th) 217
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
*Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services) 242 DLR (4th) 193
• 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
National Corn Growers Assn. v. Canada (Import Tribunal) [1990] 2 SCR 1324
• 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
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
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
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
Re Sheehan and Criminal Injuries Compensation Board (1973), 37 DLR (3d) 336
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
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
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
68
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
Homex Realty and Development Co. Ltd. v. Wyoming (Village) [1980] 2 SCR 1011