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Canadian Administrative Law (NCA) Review

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Posted on October 1, 2010 by jayfoxsjam

PROCEDURAL FAIRNESS: THRESHOLD ISSUE

THREE SOURCES OF PROCEDURAL ENTITLEMENT

(1) Legislation; Public decision makers (PDMs) are acting under legislative authority,
and these statutes will probably have limitations set out and procedures set out for the
PDMs. It is possible for the statute to limit your procedural entitlements at common law
(i.e. the statute might limit your right to an oral hearing). However, there are some
entitlements that exist as a Constitutional protection, and these rights may be immune
from derogation.

(2) Common law; certain types of procedure entitlements have been developed over time
(right to a fair hearing, right to oral hearing, right to disclosure, etc.). Even if the statute
itself doesnt give a procedural entitlement, you might have one here.

(3) Charter:

When the legislature has chosen specific procedures for the administrative tribunal, and if
it denies an alleged procedural right (i.e. oral hearing), then the Charter is the only other
way to enforce that right:

(a) Admin actors must exercise their statutory authority in accordance w/ the Charter

(b) When an admin decision deprives someone of lie, liberty or security of the person,
then s 7 of the Charter is

engaged

(c) The definition of fundamental justice is informed by the duty of procedural fairness in
administrative law (Suresh

goes into this)

(d) Caution, however, that procedural fairness under administrative law principle applies
much more broadly than s 7.

OVERVIEW OF THRESHOLD ISSUE

- Does procedural fairness apply at all?

(1) Before getting into common law, look at procedures provided by statute:
Does it spell out a procedure to follow? If yes, advise that to be followed, b/c
dont have to get into murky common law territory.
Assuming no, does it exclude requirement of procedural fairness?
If it is silent, common law will be implied?

(2) If it is implied, must determine whether it applies to this party. Look at 3 criteria in
Knight (says they come from Cardinal):

(i) Nature of decision:

(a) How specific it is (does it affect one persons rights, or is it a general policy decision)

(b) The degree of finality (a decision of preliminary nature will not in general trigger the
duty to act fairly,

whereas a more final nature may have such an effect);

(c) Decisions of a legislative and general nature do not entail the duty

(ii) Relationship b/w decision maker and party:

1. Whether its regulated by public or private law)


2. What sort of decision maker are we looking at) (is it an individual relationship or
broad based)

(iii) Impact of decision on interested party (usually the most significant does the person
have an important interest

in the decision)

(3) Look at other things that might exclude duty: e.g. emergency (Cardinal); legislative
function (Inuit Tapirisat)

RIGHT TO PROCEDURAL FAIRNESS

Prior to Nicholson, administrative decisions could be made without regard to the rules of
natural justice. The dichotomy b/w judicial and administrative decisions resulted in the
preoccupation with categorization. Under the traditional approach, where admin
authorities were given the powers to do X, the person wouldnt have the power to appeal
that decision. But after Nicholson, the ability of an admin tribunal to do X is not
determinative, as the interested person may be afforded with at least some procedural
protection to be treated fairly.

Nicholson v Haldimand-Norfolk Regional Police Commissioners (Duty of procedural


fairness applies to administrative decision and even if a statute is silent on procedural
entitlements, common law requires at least some opportunity to be heard before
decision):

FACTS: 14 months after date of hire, N dismissed, w/out being given reasons and w/out
opportunity to make submissions. Appellant applied for dismissal to be quashed,
claiming he was entitled to be treated fairly by the Commission. The Police Act governs
the Commission. The Act allows them to dispense people without reason if employed
less than 18 months.

ISSUE: Can N claim an inherent procedural right in common law, even though the
statute needed to be 18 months for a right to hearing?

HELD Just because statute says this, doesnt mean a police officer shouldnt get any
opportunity for a hearing whatsoever. This isnt a judicial decision, it was an admin
decision. But the category approach is arbitrary and unfair to individual interests.

If a person subject to pains and penalties, or in some way adversely affected (the
consequences are important), then he should be told the case against him, and afforded
an opportunity to be heard. The appellant should have been told why his services were
no longer required and given an opportunity (whether orally or in writing) to
respond. So, the level of procedural protection is not full natural justice not saying that
there has to be a full borne court procedure. N should have been afforded at least some
procedural entitlement, not necessarily what he would have received at 18 months.

Cardinal v Director of Kent Institution (6 years after Nicholoson) (Where there is an


apparent emergency, there is no requirement of prior notice and an opportunity to be
heard before the decision):

FACTS: Prisoners allegedly in hostage taking situation; subsequently transferred to


another facility and placed in segregation by Director, against the recommendation of the
Segregation Review Board; Director didnt inform Appellants of reasons, nor give them
an opportunity to tell their side of story (procedural concerns)

ANALYSIS: No doubt that Director was under duty of procedural fairness (which Court
has affirmed as a common law principle need to look at effect on the prisoners)
(Nicholson): e.g. (1) Less likely to instruct/interact with counsel (2) restricts their ability
to do things (a duty of fairness lies in every public authority making admin decisions
which affect the rights, privileges and interests of an individual)

Question is what the duty may reasonably require of an authority, and what is to be
considered a breach. Here, given the urgent in nature of the situation, hearing not
necessary (so, where there is an apparent emergency, there is no requirement of
prior notice and an opportunity to be heard before the decision)

But once a recommendation to end the segregation of prisoners had been made by
the review body, the duty of fairness required that the prisoner director inform the
inmates of his intended decision. Leaving the inmates there after segregation, time of
urgency passed.

HELD B/c of the serious effect of the Directors decision on the appellants, procedural
fairness required that he inform them of the reasons for his intended decision and give
them an opportunity to make representations to him concerning these reasons. This is the
minimal requirement of procedural fairness.

Knight v Indian Head School Division: (Important for outlining the factors used to
assess the 3 Cardinal factors assessing existence of general duty of fairness)

FACTS: Ks employment contract stipulated that he could be terminated either by 3


months notice or by the Board for just cause. The Board terminated his employment
without cause on 3 months notice. Prior to termination, there were negotiations back and
forth between the Boards lawyers and his lawyers. K brought action alleging wrongful
dismissal. Went to Sask COA, where K awarded damages as an office holder under the
Education Act, he was entitled to be terminated according to principles of procedural
fairness, and could only be removed for cause. The Board appealed.

ANALYSIS:

Procedural protections he was seeking didnt exist in statute, but at common law, its
about inherent procedural rights

3 Factors for Establishing Common law Duty of Fairness:

(1) Nature of the decision:

(a) how specific it is (does it affect one persons rights, or is it a general policy decision)

(b) the degree of finality (a decision of preliminary nature will not in general trigger the
duty to act fairly, whereas a

more final nature may have such an effect);

(c) decisions of a legislative and general nature do not entail the duty

Here, the decision made by Board was final and specific, directed at terminating the
employment of the

respondent.

(2): Nature of Relationship: In the case of employment relationships, 3 categories:

(a) master-servant (contractual) (b) office at pleasure (dont have to get to the threshold
of cause) (c) office where one can be removed with cause.
The JUSTIFICATION for granting to the holder of an office at pleasure the right to
procedural fairness is that, whether or not just cause is necessary to terminate the
employment, fairness dictates that the administrative body making the decisions be
cognizant of all relevant circumstances surrounding the employment and its
termination

To give procedural fairness to the one being dismissed would not import into the
termination decision the necessity to show just cause for the employees dismissal, but
would only require the admin body to give the officer holder reasons for the dismissal
and a fair hearing for rebuttal.

(3): The impact of the decision on the terminated party: There is a right to procedural
fairness only if the decision is a significant one and has an important impact on the
individual. Courts have recognized that the loss of employment against office holders
will is a significant decision.

Statutory Framework:

- From that, it follows that there was a general duty to act fairly on part of Board. Now,
the statutory framework must be examined in order to see if it modifies this right

- The provisions of The Education Act must clearly show (either by express language or
necessary implication) that the respondents general right to procedural fairness has been
restricted: Question to ask does the Act explicitly or implicitly excuse the admin body
from acting fairly?. In this case, Act stipulated to look at contract to see procedure of
termination. Here, presumption that parties intended procedural fairness would apply
arises; and no provision which overrides this presumption [So, statute can override
common law duty of fairness. But in order to overrule it, it has to be explicit. Here,
majority said the contract was silent]

Content of Duty:

- Next, look at the content of the duty the concept of procedural fairness is variable and
its content is to be decided in the specific context of each case. Since the respondent
could be dismissed at pleasure, the content of the duty of fairness would be minimal,
and notice of reasons for boards decision and affording opportunity to be heard
would be sufficient.

- Was the duty complied with? If it could be found that the respondent had knowledge of
the reasons for his dismissal, and had an opportunity to be heard, the requirements of
fairness will be satisfied even though no hearing. Flexible threshold means flexible
content. Key requirement is that e/ee knows the reason of the dismissal and has a chance
to respond to it in some way.

HELD - The appellant board made itself sufficiently available for discussion
through the meetings with the respondent and his lawyer so that each partys
concerns were made fully known to each other. By inference, the respondent must
have known the reasons for his dismissal and was provided with every opportunity to be
heard. No remedy for K, as he was given a fair opportunity to convince the Board that
he should keep his job.

MINORITY (Sopinka J) For employment relationship of the category of office held at


pleasure, duty of fairness should only arise where an employee can identify in the statute,
regulations or contractual provisions governing the relationship provisions which
expressly (or by necessary implication) confer upon the employee a right to be heard
[Note: This is where Dunsmuir, below, comes in and says, yes, it is primarily an
employment matter]

CONTEXTS WHERE DUTY OF FAIRNESS DOES NOT APPLY (LEGISLATIVE


DECISIONS)

Most cases are trying to work through the distinction between the general, ministerial
and policy decisions that do not attract procedural entitlement, as opposed to
administrative, specific or personal decisions that do. Where do we draw the line?

The following cases indicate the procedural fairness does not apply to legislative
decisions or functions (but the decision must be constitutional). To determine whether a
decision is legislative, look at:

(1) Is there a lis (a dispute between parties)? If its a policy based decision, with no core
argument,

then its more likely to be legislative

(2) Is it between a defined number of parties with defined interests, or is it something that
is more

broad based?)

(3) Is it affecting a broad spectrum or a narrow group of interests (the broader, the more
likely

legislative) (A-G v Inuit Tapirisat)

A-G v Inuit Tapirisat (Procedural fairness doesnt apply to legislative decisions if they
are not acting in an administrative body function):

FACTS: After application for telephone rate increases in Ontario, Quebec and Northwest
Territories, the Inuit Tapirisat and the National Anti-poverty Organization appealed to set
aside portion of the CRTCs decision. Bell Canada filed reply. Inuit Tap. preparing final
reply, but Governor in Council issued decision denying appeal. Their decision followed
months of hearings. The respondents position was founded on the failure of the
Governor in Council (a) to receive actual petitions from the respondents and (b) to afford
the respondents the opportunity to respond to the case made against them by the Minister,
the department officials and the CRTC.

ANALYSIS:

The central issue is whether there is a duty to observe natural justice in, or at least a lesser
duty of fairness incumbent on, the Governor in Council in dealing with parties such as the
respondents upon their submission of a petition under s 64(1) of the National
Transportation Act.

While the duty to observe procedural fairness need not be express, it will not be implied
in every case. It is always a question of construing the statutory scheme as a whole in
order to see what degree, if any, the legislator intended the principle to apply. *Decisions
of Cabinet/ministers are not automatically excluded from requiring procedural
fairness: If they are making administrative decisions, then they dont have
immunity.

What makes a decision legislative: (1) Is there a lis (a dispute between parties)? If its a
policy based decision, with no core argument, then its more likely to be legislative (2) Is
it between a defined number of parties with defined interests, or is it something that is
more broad based?) (3) Is it affecting a broad spectrum or a narrow group of interests (the
broader, the more likely legislative)

HELD Under s 64, the Cabinet, as the executive branch of the government, was
exercising the power delegated by Parliament to determine the appropriate tariffs for the
telephone services of Bell. It affected a large group of citizens. Unless otherwise
directed in the enabling statute, the Cabinet must be free to consult al sources which
Parliament might consult had it retained its function.

The wording adopted by Parliament makes this clear. The Governor in Council may
act at any time; he may vary or rescind any order, decision, rule or regulation in on
his own motion. This is legislative action at its purest. In such circumstances, the Court
must fall back upon the basic jurisdictional supervisory role and construe the statute to
determine whether the Governor in Council has performed its functions in accordance
with Parliament mandate. *Basically, the Cabinets power was deemed to be
legislative in nature, in part b/c the legislation authorized the Cabinet to overturn a
decision of the CRTC on its own motion legislative action in the purest form*.

COMMENT: Cabinet and ministerial decisions are not subject to the legislative
exemption per se, but it will often be easy to characterize Cabinet and ministerial
decisions as legislative, and as a result they will be exempted from the duty.

Reference Re Canada Assistance Plan (Federal government terminating payments


under cost sharing for social assistance was purely a legislative decision):
FACTS: Under Canada Assistance Plan, federal government made agreements with
provinces to share cost of social assistance programs; agreements could be terminated by
mutual consent or one year notice. Fed gov subsequently limited payments under plan.

ANALYSIS:

Court reaffirms that if its a purely legislative decision, the courts wont impose further
requirements (Question: Whether it is the legislative exception principled, or is it a way
of not interfering with an admins decision).

Also, the issue/doctrine of legitimate expectation raised that is, based on the conduct
of the public official, a party has been led to believe that his or her rights would not be
affected without consultation. The appellant concedes that there is no legal impediment
preventing Parliament from legislating, but contends that the government is constrained
by the doctrine from introducing the Bill (to limit payments) to Parliament. But there is
no support for the position that the doctrine can create substantive rights. Where it is
applicable, it can create a right to make representations or to be consulted. *It does not
fetter the decision following the representations. Parliamentary government would be
paralyzed if the doctrine could be applied to prevent the gov. from introducing legislation
in Parliament.

HELD - Appeal allowed. The rules governing procedural fairness do not apply to a body
exercising purely legislative functions

Wells v Newfoundland (Legislature passing law abolishing a quasi-judicial position


was not bound by duty of fairness):

FACTS: The Nwfld Legislature passed legislation abolishing a quasi-judicial position to


which Wells had been appointed. HELD - Wells argument that he should have been
accorded procedural fairness was rejected by the Court which stated: Legislatures are
subject to constitutional requirements for valid law making, but within their constitutional
boundaries, they can do as they see fit. The wisdom and value of legislative decisions are
subject only to review by the electorate.

PROCEDURAL FAIRNESS IN EMPLOYMENT TERMINATION CONTEXTS

Dunsmuir v New Brunswick (Where contract of employment, dont need admin/public


law; Modifies Knight):

FACTS: D hired as Court Services Legal Officer. He was an employee under NBs
Civil Service Act w/ a written contract of employment. Employment terminated with 4
months notice. Cause was not alleged. D filed grievance under Public Service Labour
Relations Act. Grievance adjudicator declared termination void. Province applied for
judicial review. Court of Q.B and COA found the Ds right to procedural fairness not
breached. D appealed.
ANALYSIS:

We are of the view that the principles established in Knight relating to the applicability
of the duty of fairness in the context of public employment merit reconsideration. What
matters is the nature of the employment relationship b/w the employee and the public
employer.

In practice, a clear distinction b/w office holders and contractual employees has been
difficult to maintain. In Knight, majority relied on whether the public employees
position had a strong statutory flavour but this is an inadequate test. Most office
holders positions have contractual employment relationship. If the distinction has
become difficult to maintain in practice, it is also increasingly hard to justify in principle.

Further, there are 3 main (historical) reasons for distinguishing between office holders
and contractual employees, all of which are problematic. First, historically, offices
were viewed as a form of property, and thus could be recovered by the office holder who
was removed contrary to the principles of natural justice. Employees who were
dismissed could only sue for damages. This conception of public office has
faded. Second, the dismissal from public office involves the exercise of delegated
statutory power and therefore should be subject to public law controls, unlike the
dismissal of a contractual employee which only implicates a public authoritys private
rights as an employer. Third, unlike contractual employees, office holders did not
typically benefit from contractual rights protecting them from summary discharge B/c of
this insecurity, it was seen desirable to impose minimal procedural requirements to
prevent arbitrary dismissal. **But in our view, the existence of a contract of
employment, not the public employees status, is the crucial consideration. Where the
employment relationship is contractual, it becomes difficult to see how a public employer
is acting any differently in dismissing a public office holder and a contractual employee.

**Administrative law vs Private law: Administrative law is about preventing the


arbitrary exercise of delegated powers (distinguish this with Knight). So when
government as party to the contract acts in GOOD FAITH, there is no need for
administrative law to step in, as that exercise of power isnt arbitrary.

Administrative vs Private law Remedies: Private law remedies are more fair and
principled. E.g. there is no duty to mitigate under admin law. As a result, an employee
may recoup much more than theyve lost. Further, it is true that the remedy of
reinstatement is not available for breach of contract at common law. But breach of a
public duty of fairness does not lead to full reinstatement. The dismissal decision is void
ab initio, meaning that the employment is deemed to have never ceased. The employer,
though, is free to dismiss the office holder again.

HELD To the extent that Knight ignored the important effect of a contract of
employment, it should not be followed. By imposing procedural fairness requirements on
the respondent over and above its contractual obligations and ordering a full
reinstatement of the appellant, the adjudicator erred in his application of the duty of
fairness.

PROCEDURAL FAIRNESS: CONTENT OF DUTY

TEST FOR DETERMINING THE CONTENT OF THE DUTY

Underlying the following factors, as noted in Baker, is the notion that the purpose of the
participatory rights contained is to ensure that administrative decisions are made using
fair and open procedure, appropriate to the decision being made and its statutory,
institutional and social context, with an opportunity of those being affected by the
decision to put forward their views:

1. Nature of the decision being made and the process followed in making it:
o The more the decision is seen as judicial or quasi judicial, the more likely
procedural protections will be like that of a trial model. I.e., is it
adversarial, two party type decision? Or, is it more like policy based
(guided by discretion)?
o E.g. In Suresh, deportation hearing had elements of judicial proceeding, it
also had an element of discretion, so could go either way on this factor
o E.g. In Suresh, it was a prospective decision which courts generally dont
engage in, so less judicial, less extensive safeguards
o E.g. In Baker, a decision determining whether there were humanitarian
and compassionate grounds for exemption from being deported was noted
to be a highly discretionary decision
2. The nature/terms of statutory scheme
o Greater procedural protections will be required when no appeal procedure
is provided within the statute, or when the decision is determinative of the
issue and further requests cannot be submitted. E.g., if theres a privative
clause, then that factor will indicate higher procedural requirements.
o In Baker, the decision of whether there are H & C grounds within the
statutory scheme as an exception to general principles of immigration law,
which suggests more relaxed requirements under the duty. But, there was
no appeal procedure
o In Ha, it was noted that simply b/c visa officers were not obliged to
interview all applicants doesnt diminish the procedural protections that
they owe to those they do interview (once they interview, they must do so
in accordance w/ duty of fairness).
3. The importance of the decision to the individual(s) affected:
o The more important, and the greater its impact, the more stringent
procedural protections will be mandated. The lesser the impact, the lesser
the content (the fewer procedural protections).
o E.g. In Suresh, apparent that where one faces restrictions on freedom
(deportation), suggests high amount of procedural safeguards
o E.g. In Markwart, apartment complex demolished, and was tantamount to
expropriation without compensation; so, very significant impact
(compare/contrast)
o E.g. In Homex, passing a by law to prevent sub-division of property had a
significant impact on party
4. The legitimate expectations of the person challenging the relevant decision:
o Did the complainant receive a clear/unambiguous representation that has
induced in him/her a reasonable expectation that they will retain a benefit
(CUPE v Ontario)?
o If a claimant has a legitimate expectation that a certain procedure will be
followed, this procedure will be required by the duty. Also, if a claimant
has a legitimate expectation that a certain result will be reached, fairness
may require more extensive procedural rights than would otherwise have
been given (note, though, that the doctrine cannot lead to protection of that
expected outcome)
o E.g. In Congregation, the Municipality followed an involved process in
responding to the Congregations first rezoning application, in doing so
giving rise to Congregations legitimate expectation that future
applications would be carefully considered.
o E.g. In Baker, court denied that the articles of the Convention, based on
the fact that it has been ratified by Canada, gave rise to an reasonable
expectation that certain procedures would be followed. This was not
equivalent to a government representation. But see Suresh, where being a
signatory to the Convention Against Torture indicates an intention that
they will abide by it.
o In Ha, visa officer wrote to counsel stating that counsel are never allowed
at interviews. This is inaccurate statement of law, as visa officers must
determine cases based on their facts. Thus, as a result of a general
statement that counsel cannot attend interviews, the appellants may have
assumed that it would be futile to attempt to ask the visa officer to
reconsider his decision.
5. Deference to the procedural choices made by the decision maker:
o The Court must guard against imposing a level of procedural formality
that would unduly encumber efficient administration.
o In Ha, however, counsel was only asking to observe proceedings. This
would not unduly encumber efficient administration (see Ha) [In other
words, depending on the NATURE of the procedure requested, this factor
may have different results]
o Like in Baker, where the statute gave the decision maker discretion to not
conduct interviews, was a similar discretion afforded to the decision
maker in this case? If so, deference must be given
o See Congregation de temoins: Municipal decisions on rezoning fall w/in
the sphere where Municipalities have expertise beyond the judiciary. But
this doesnt carry much weight where there is no record to indicate that the
Municipality has actually engaged its expertise in evaluating the
applications.
Conclusion: Balancing the factors, might say that:

1.
o Minimal requirements are adequate
o Extensive requirements are needed
o Or something in the middle

Baker v Canada (Minister of Citizenship and Immigration) (Sets out factors to test what
the content of the duty is)

FACTS: B, Jamaican, entered Canada in 1981. Never received permanent resident


status. Four children (who were all Canadian citizens) while living in Canada. B was
suffering from psychiatric illness. She was ordered deported in 1992. B applied for
exemption from requirement to apply for permanent resident outside Canada, pursuant to
Immigration Act, based upon humanitarian and compassionate considerations. B made
submissions, through lawyer and Childrens Aid, including that she was sole caregiver
for 2 of her children, and that the other 2 depended on her for emotional
support. Response was contained in a letter by Immigration officer, stating that there
were insufficient humanitarian and compassionate grounds to warrant request. Letter
contained no reasons for that decision.

ANALYIS:

(1) Existence of duty of fairness: Both parties agreed that a duty of procedural fairness
applies to H & C decisions. The decision affects the rights, privileges or interests of
the appellant which is sufficient to trigger the application of the duty (Cardinal v Director
of Kent)

(2) Application of Baker factors:

Appellant claimed that the duty is affected by the existence of legitimate expectations
(based on the articles of the Convention on the Rights of the Child. But there is no
reason to conclude that the decision on her H & C would be guided by the Convention.

(a) Participatory rights: Was the failure to accord an oral hearing and give notice to B or
her children inconsistent with the participatory rights required in these
circumstances? Several factors above enter into the determination of the type of
participatory rights required here: (i) an H & C decision is different from a judicial
decision (as it involves exercise of high amount of discretion (ii) the H & C decisions
role is within the statutory scheme as an exception - These factors suggest more
relaxed requirements under the duty. But, (iii) there is no appeal procedure, and (iv) this
is a decision that has exceptional importance to the lives involved - these lead to the
content of the duty being more extensive. Finally, (v), the Statute provides significant
procedural flexibility for the Minister/immigration officers to not conduct interviews.
Must balance these factors. It cant be said that an oral hearing is always necessary, as
meaningful participation can occur in different ways. Here, B had chance to submit
info (through lawyer) about her position. This satisfied requirements of
participatory rights.

(b) Provision of reasons**: B submits that the duty of fairness required that reasons be
given by the decision maker. It has been held that in H and C applications, reasons are
unnecessary. More generally, common law rule has been that duty of fairness doesnt
require reasons for administrative decisions. YET, Courts and commentators have
stressed the usefulness of reasons for ensuring fair decision making (i.e. more
articulate and thought out). And that it demonstrates to parties that their concerns
were heard and considered.

But, in Courts view, the duty of fairness may require it in circumstances: *where
there is a right to appeal, then there will usually be a right to reasons* (how can you
appeal if you dont know why a decision maker decided?) But Court concluded that this
requirement was fulfilled by the notes of Officer Lorenz.

Comment: Statutory provisions are important. Here, s 82.1 and 83 contemplated judicial
review. It is important to note the signals that legislation can give us as to the
relationship b/w admin body and courts. Here, clear statement that courts can hold a
supervisory function where they can oversee the procedures undertaken.

DOCTRINE OF LEGITIMATE EXPECTATIONS

Affords a party affected by the decision of a public official an opportunity to make


representations in circumstances in which there would be no such opportunity. Based on
the conduct of the public official, a party has been led to believe that his or her rights
would not be affected without consultation, or that they would retain a benefit, is the gist
of the doctrine.

Overview of Doctrine:

At the end of the day; we need to establish a clear promise by conduct or


statement by a public authority for a legitimate expectation argument to
work. (CUPE v Ont.)
Legitimate expectation can only be used to get admin body to do something
that admin body can do lawfully (e.g. if it would be against their statute, it
wont work) (CUPE v Ont).
You cant use legitimate expectation arguments for substantive claims
(Mount Sinai Hospital)

Mount Sinai Hospital Center v Quebec (Minister of Health and Social Services)
(Legitimate Expectations does not give rise to changes of substantive decisions):
FACTS: For many years the hospital had been functioning in violation of its licence. The
Minister of the day said they could still operate if they relocated. They hospital did lots of
fundraising and re-located. The govt changed and the new Minister wanted to shut them
down because of budgeting issues. The hospital applied mandamus to compel the
Minister to grant the licence.

Majority of SCC held that Minister already exercised its discretion vis--vis the permit
when it promised to issue it, and acted outside competence limits when refused to issue
permit.

ANALYSIS (Minoritys Judgment): Respondent argues that doctrine of legitimate


expectations can be used to compel not only procedural protection, but substantive result
as well, so long as its not contrary to law and is within power of decision maker.

(1) English vs Canadian Contexts:

(i) English law: English law adherers to the doctrine the way the respondent proposes,
but in that jurisdiction, the doctrine performs a number of functions that in Canada are
kept distinct. The English doctrine has developed into a comprehensive code the
embraces the full gamut of administrative relief, from procedural fairness (at the low
end), through enhanced procedural fairness, and on to the high end where substantive
relief is possible.

Some of the English authorities that the Respondent relies on are at the high end, which
represent a level of judicial intervention that our courts have considered inappropriate

(ii) Canadian law: Canadian cases differentiate between concepts of procedural fairness
and doctrine of legitimate expectation: on one hand, concern that treating procedural
fairness as a subset of legitimate expectations may complicate the development of highly
flexible rules of fairness; on the other hand, concern that using Ministers prior conduct
as reason for substantive relief may strike the wrong balance between private and public
interests. Further, the availability and content of procedural fairness is generally driven
by the nature of the applicants interest and nature of power exercised, while the doctrine
looks to the conduct of the public authority.

(iii) Does this doctrine equal to estoppel?: No requirement for estoppel to arise, as the
applicant who relies on the doctrine may show, but does not have to show, that he or she
was aware of such conduct, or that it was relied on with detrimental outcomes.

(iv) Cites Reference re Canada Assistance Plan: Court notes this authority, which
regarded doctrine as an extension of rules of natural justice and procedural fairness,
which may afford a party affected by the decision of a public official an opportunity to
make representations (or whatever procedural remedies) in circumstances in which there
would otherwise be no such opportunity. The Court there shut the door to substantive
relief.
Court there also noted 2 other limitations: (1) a purely ministerial decision, on broad
grounds of public policy, will normally result in no procedural protection, and an attack
on that discretion will have to be deal with upon an abuse of discretion (below); (2)
public bodies exercising legislative functions may not be amenable to judicial
supervention

(2) Promissory/equitable Estoppel: Court mentions that this remedy may be available
against a public authority in narrow circumstances. In English cases, this has been
engulfed by the general heading of fairness (rather than law of contract). The US
similarly stays away from its use in this context. *Then, Court states that IF this were a
private law case, the elements of promissory estoppel are present. PUBLIC LAW
ESTOPPEL requires an appreciation of the legislative intent embodied in the power
whose exercise is sought to be estopped.

Application: The Minister is mandated in broad terms to act in the public interest. As a
matter of statutory interpretation, it seems clear from the broad test of s 138 (the public
interest) that the legislature intended the Minister to determine the appropriate
transitional arrangements from the old policy to the new policy. *The wording of the
statutory power AND the person who wields it (a Minister) is important. Cases relied on
by respondents generally deal with lesser powers at a lower level of
officialdom. Also, in the same cases, none of them involved a statutory power of
decision framed in broad policy terms.

C.U.P.E v Ontario (Minister of Labour) (Evidence of representations/past practice


cannot be equivocal under doctrine AND legitimate expectations cant be in direct
contradiction to statutory scheme):

FACTS: The Minister announces that they will reduce to sector based position of
appointment which the Union interpreted as the roster method. Minister then appoints
retired judges that werent on the roster, breaking tradition. Claim was that legitimate
expectation is breached, because of understanding that Minister would go back to the
roster method

ANALYSIS:

(i) Ministers alleged failure to consult with the unions about the change in the
process of appointments: Unions claim appointment process was so entrenched, yet he
Minster amended it without notice/consultation (the issue here is consultation). They say
that his decision affected the vital interest of union members (earning a
livelihood). Court held that assuming the existence of a duty to consult, I think it was
satisfied parties agree there were extensive meetings at time of Bill 136, and Minister
signalled reform.

(ii) ***Alleged violation of Doctrine of Leg. Exp***.:


Definition: The doctrine of legitimate expectation is an extension of the rules of natural
justice and procedural fairness. It looks to the conduct of a Minister or other public
authority in the exercise of a discretionary power, including practices, conduct or
representations that can be characterized as clear, unambiguous and unqualified, that
has induced the complainants a reasonable expectation that they will retain a benefit
or be consulted before a contrary decision is taken.

In this case, the evidence of past practice is equivocal, and as a result, the evidence
of a promise to return to past practice is also equivocal. The Minister says the
return to the sector based system was HLDAA, including the broad latitude afforded to
him by s 6(5). The unions say the sector based system was the s 49(10)
roster. Evidence shows that the appeal to the list varied from Minister to
Minister. Whether or not Ministers limited themselves to the list seems to have been
a matter of policy/individual preference.

Evidence shows that unions were sceptical of some appointments from the list, which
further shows that there was no obligation to use the roster complied under s 49(10).

Minister indicated that academics and judges might be used to staff the dispute resolution
commission. Two faces expressly mentioned. Court then noted that a statement by the
unions explicitly recognised that there may be appointment of an individual (not on the
list) with broad experience.

**To bind the exercise of the Ministers discretion, the evidence of the promise or
undertaking by the Minster must generally be such as, in a private law context,
would be sufficiently certain and precise to give rise to a claim for breach of
contract or estoppel by representation **. But the evidence doesnt establish a firm
practice in the past of appointing HLDAA arbitrators, or proceeding by way of mutual
agreement

COMMENT: Past practice of the government official and quality of evidence of an


alleged undertaking affect whether the doctrine of legitimate expectation arises.

SPECIFIC PROCEDURAL ENTITLEMENTS

Overarching question is whether X had the opportunity to be heard.

NOTICE

Notice is probably the most important key component of procedural fairness. Failure to
give notice at all will always result in the fatality of the decision, because without
notice, many other procedural rights cant be exercised.

4 key aspects:


o Form
Written notice is the norm, unless context permits
Not absolutely essential in all cases
You just need to effectively and adequately informed
o Manner of service
Personal service is the norm, unless context permits
Main difficulties are where a number of persons are affected,
how do you effectively give notice to a whole
community/city/province? Also what if you cant even be sure
that the decision will affect one group or another?
Whether that form of delivery will reach the persons affected (i.e.
newspaper is bad for people who dont read newspaper)
May need to be specific depending on complexity
How reliable is the manner of service (mailing may fail, e-mail
server may be clogged, or door-to-door man may be sick)
o Timing
The amount of time will vary depending on the complexity of the
matter, how much info you must gather in your defence, etc.
o Content
Information that has to be given to affected individuals
When notice is given, what does that notice need to contain?
You need to know the basic information (i.e. this allegation has
been amde against you, the hearing will be on this date, and what
will happen to you if the allegations are found to be true)
Who made the allegation?

Homex Realty v Wyoming (Villiage) (Notice prior to decision where substantial right
affected, even where statute is silent)

FACTS: Dispute over by-laws; who was going to bear the costs of a new
development? Owner of land (Atkinson) entered into agreement with Village of
Wyoming to install municipal services on land, which was to become new
subdivision. Under the agreement, the owner was to finance the surfacing of all roads,
drainage, among other services. The owner was not permitted to sell land unless
agreement had been fully carried out, or the Village consented. Appellent Homex bought
most of subdivision with Villages consent before installation of most
services. Extensive negotiations to have H pay for costs of service were unsuccessful,
and so passed by-law deeming lots owned by H not to be a registered plan of
subdivision, without prior notice to H. Relevant legislation governing the Villiage was
the Planning Act, which talked about the procedures required when passing by laws.

ISSUE: Can a municipality just pass a by-law directed at a particular situation that stacks
the deck in the favour of the municipality without complying with the common law duty
of procedural fairness?

ANALYSIS:
- The courts historically developed proposition that wherever a statute authorizes the
interference with property or other rights and is silent as to whether or not the agency in
question is required to give notice prior to intervention, courts will supply the omission of
the legislature and will be required to provide the opportunity to be heard. Today, the
principle may apply, depending on circumstances.

- Wont apply if legislative framework precludes such a requirement (unless the


legislation is unconstitutional). **In determining the appropriate interpretation of s 29(3)
of the Planning Act, the: (i) statutory framework, (ii) the nature of the action being
undertaken and (iii) the general circumstances prevailing at the time of action must be
taken into account.

HELD Here, statute doesnt expressly require notice to the affected landowners PRIOR
to passing of by law

(i) Nature of the decision: The action taken by the Council was not legislative in
substance, but rather was quasi-judicial in character (e.g., it represented the reported
culmination of the inter partes dispute conducted on adversarial links between Homex
and the Council) (therefore, content will be increased, not attenuated

(ii) Concluding that the principle of NOTICE arises, the court noted that the Statute
doesnt displace the old rule of audi alteram partem and the resultant duty in Council to
hear first and decide later. Generally, where procedural fairness is required, notice
will be required before a decision is made if there is a significant interest affected (in
this case, it required the filing of a copy of the by law with the Minister, and it must have
been registered and mailed to the RO of the affected lands). *Such a conclusion is
facilitated by the further aspect of the case that the Council has acted as the judge of its
own actions in determining the outcome of dispute between itself.

COMMENT: While notice prior to a decision will generally arise as a requirement of the
duty of fairness, Bishop v Ontario Securities Commission is an example where it would
not in that case, the whole purpose of the Act might have been defeated if the chairman
could make an order or ruling under that section only on notice to the person affected,
where a negative consequence upon 3rd parties would arise with the provision of notice.

In many circumstances, the statute will outline the manner in which notice is to be given,
who is entitled to receive notice, and what the notice is to contain. Where statute doesnt
specify, procedural fairness requires that the note be sufficient to let persons know how
they may be affected and to allow for adequate preparations to make representations at
a hearing.

Pre-hearing procedural fairness also generally requires that those parties affected by the
administrative proceeding or decision receive disclosure of the case to be made against
them. The following case discusses both issues of notice and disclosure.
CPR v Vancouver (If notice is required at common law, must give sufficient notice,
namely notice that allows party to be aware of nature and subject matter of hearing):

FACTS: Strip of land in the City of Vancouver which has been owned by the CPR for
more than 100 years. For most of that period, the land was used as a railway. However,
rail operations ceased in 2002. When it became apparent that rail operations would
eventually come to an end, the C.P.R. began to make plans for re-development of the
land to permit commercial and residential uses. But the City adopted bylaw to designate
the corridor as a public thoroughfare for transportation, and to freeze the redevelopment
potential and to confine the C.P.R. to uneconomic uses of the land.

ANALYSIS: Should the by-law be set aside for procedural irregularities?

(i) The Vancouver Charter imposes no statutory requirement to hold a public hearing
before adopting a bylaw.

(i) But given the potential impact of the by law on the CPR, it owed it a duty of fairness.

(ii) The City attempted to fulfill this duty through the public hearing process (required by
the V Charter) the issue is whether meets the standard of fairness re: the Baker
criteria. CPR had 3 complaints re: the hearing process:

1. Flawed NOTICES: Advertisements were made with contact addresses. Notices


given said would designate corridor for purposes only of transportation,
including rail, transit etc.. CPR said by not saying by law was designating
private land as public, it wasnt enough. ***Court said NOTICE clearly gave
the FLAVOUR of the by law being considered. Even though alternative methods
may have been used, what is required is FAIRNESS, NOT PERFECTION. Test:
Where it can inferred from the circumstances that the party was aware of
the nature and subject matter of the hearing, then otherwise insufficiently
specific notice will be sufficient
2. Change to the by law after hearing: Alleged that addition of the exclusion of
SkyTrain after the hearing, without further hearing, violated legitimate
expectation. Whether City acted contrary to L.E. must be decided in context of
nature of Citys decision making power, the statutory scheme and the Citys role
in arriving at a decision in interest of whole city. The statutory scheme allows
city to revise development plans w/out hearing; the decision is not judicial, but
legislative; the City exercises discretionary power in the public interest. *These
factors may attenuate the duty that might otherwise exist to meet the expectations
of the interested parties. Court was satisfied that Citys procedure was fair
process (e.g. the ODP by-law originally drafted raised no expectation that the
corridor could be used for transportation SkyTrain was but a possibility).

HELD CPR has not made out a case for declaring the by law invalid on procedural
grounds the Citys conduct in enacting the by law complied with the requirements of
fair process. Also, the City didnt exceed its powers granted to it by the Vancouver
Charter.

DISCLOSURE

Disclosure is a key component to exercising ones right to be heard, for without


disclosure, it will be difficult to present a full case at a hearing

Stinchcombe: The rule for disclosure in trials does not apply to admin decisions, but the
principle underlying that rule still has weight in admin process

Ahani v Canada: General rule is, when individual interests are at stake, procedural
fairness requires at least some level of disclosure.

Suresh v Canada (Minister of Citizenship and Immigration) (Procedural fairness


requires that a person who establishes prima facie a risk of facing torture or a similar
abuse must be informed of the case to be meet and a chance to respond and challenge
the validity of the information that the decision maker is using to base his decision on):

FACTS: Refugee claimant faced deportation to Sri Lanka, where he claimed he was
likely to face torture. Minister deported him pursuant to s 53(1)(b) of Immigration Act
because he thought he was a danger to security of Canada. The appellant presented
written submissions and evidence to the Minister, but had not been provided with a copy
of the immigration officers memorandum, nor with the opportunity to respond to it
orally or in writing.

ANALYSIS:

The S.C.C applied Baker factors as follows:

(i) The nature of the decision: Bears some resemblance to judicial proceedings. While
decision is of serious nature and made by individual who evaluated and weighed risks,
its a decision to which discretion must attach. Court concluded that nature of decision
militates neither in favour of particularly strong, nor particularly weak, procedural
safeguards. Also, its a PROSPECTIVE decision, which courts dont really engage in.

(ii) The nature of the statutory scheme: Suggests need for strong procedural
safeguards. Under s 53(1)(b), there is no provision for a hearing, no requirement for
written or oral reasons, NO RIGHT OF APPEAL. As stated in Baker, greater
procedural protections will be required when no appeal procedure is provided in the
statute, or when the decision is determinative of the issue and further requests cannot be
submitted

(iii) Importance of the right affected: Appellants interest in remaining in Canada is


highly significant (i.e. risk of torture he may face in Sri Lanka). This factor militates in
favour of heightened procedural protections under s 53(1)(b).
(iv ) Legitimate expectations: Being a signatory to the Convention Against Torture
indicates an intention that they will abide by it.

(v) Choice of procedures made by agency: Minister is free under the terms of the statute
to choose whatever procedures she wishes in making a s 53(1)(b) decision. Minister
must be allowed considerable discretion in evaluating future risk and security
concerns. *Need for deference must be reconciled with the elevated level of procedural
fairness mandated by the serious situation of refugees.

On balance, Court held that procedural requirements given to Suresh were insufficient (3
strong factors weighing in favour of strong procedural fairness

HELD

(i) Procedural fairness requires that a person facing torture or a similar abuse must be
informed of the case to be meet and a chance to respond and challenge the validity of the
information that the Minister is using to base his decision on. (ii) The exception is
privilege or similar valid reasons for reduced disclosure, such as safeguarding
confidential public security documents.

(iv) ALSO, fundamental justice requires (remember, this is a Charter decision) that an
opportunity to be heard existed fundamental justice requires that written submissions
be accepted from the subject AFTER the subject has been provided with an opportunity
to examine the material used against them.

COMMENT: Note that the Minister suggested there was evidence that S wouldnt be
tortured upon return to Sri Lanka. S and his counsel disagreed with this, yet it wasnt
disclosed.

In determining the content of procedural fairness, context is everything. In Ahani v


Canada (Minister of Citizenship and Immigration), the S.C.C. concluded that Ahani, who
was also to be deported and was not given a copy of the memorandum provided to the
Minister, was given a full opportunity to respond to the Ministers case against
him. Unlike Suresh, Ahani had not established a prima facie case that he faced torture if
deported.

The S.C.C. returned to the question of disclosure in the national security context in
Charkaoui v Canada (Minister of Citizenship and Immigration):

Charkaoui v Canada (Minister of Citizenship and Immigration) (Security certificate


involves a serious interest engaged similar to those involved in criminal law; thus, duty
to disclose all information via infringement of s 7, except for privileged information)

FACTS: C applied for a stay of proceedings relating to the security certificate issued
against him under s 77 of the Immigration and Refugee Protection Act. He alleged that
the government breached a duty to disclose info in its possession in a timely way. The
process of this is that the Minter has the ability to sign a certificate declaring that a
foreign national/permanent resident is inadmissible to enter or remain in Canada on
grounds of necessity, then a judge determines whether this is reasonable. If the reviewing
judge determines that the certificate is reasonable, there is no appeal/JR. Charkaoui had
been arrested and detained but not received reasons as to whether his certificate was
reasonable

ANALYSIS:

Distinguishing criminal context from security certificate context: In criminal law


context, disclosure encompasses all relevant information (Stinchcombe). In general, this
principle wont be applied in administrative law context. But where you have a case
where the type of interest engaged is as serious as criminal law (e.g., there is a finding of
guilt), then full disclosure is required, on the basis of s 7 of the Charter

HELD The destruction of operational notes is a breach of CSISs duty to retain and
disclose information. *This conclusion flows from the serious consequences the
investigation will have for the life, liberty and security of the named person. The
designated judge then provides non-privileged information to the named person.

COMMENT: Court also made a statement about privilege. The basis for the privilege is
those things which would be injurious to national security (comes from the Act). In the
end, what was required was full disclosure of everything to the Judge (not Minister), who
would disclose as much as the documents as reasonably possible without being injurious
to national security.

Pritchard v Ontario (Human Rights Commission) (Privilege is an EXCEPTION to the


disclosure requirement):

FACTS: P was employed, harassed in work place, complained to Human Rights


Commission, Commission didnt process complaint. P wanted to challenge decision, and
argued that P was entitled to all documentation Commission possessed, including in
house counsels legal opinion.

ISSUE: Whether the duty of fairness could compel production of a legal opinion.

HELD The privilege, if established, is considerably broad and all-encompassing. The


privilege is jealously guarded and should only be set aside in the most unusual
circumstances.

Procedural fairness doesnt require the disclosure of privileged legal opinion. Procedural
fairness is required both in the trial process and in the admin law context; in neither area,
does it affect solicitor client privilege.

Legislation, which can oust the privilege b/c the privilege is a common law doctrine, will
be interpreted restrictively. Solicitor-client privilege cannot be abrogated by inference.
Markwart:

FACTS: Appellants owner of apartment building. Building inspected and failed tests,
and was ordered to be demolished. Appellants appealed the order pursuant to the Cities
Act.

ISSUE: Disclosure of report which was the basis of Councils decision

HELD - Although appellants aware of issues given in meetings, it doesnt follow that
they knew the case they had to meet. They ought to have received a copy of the report on
which the Council based its decision. The appellants could not properly respond
w/out knowing how the case was presented to Council by inspector (i.e. the report
may/may not have been represented in the meetings). Court held they ought to have had
disclosure [Note: what is the difference b/w this case and those in which there were
opportunities to have discussion which constituted sufficient grounds for knowing the
case to meet?]

CPR v Vancouver (Where relevance of documents is tenuous, then likely pre-hearing


disclosure not a requirement)

CPR claims that the City failed to disclose information to it, violating the Citys duty to
treat CPR fairly. Court said Citys disclosure met this standard (of disclosing materials
prior to hearing). The statute conferred broad planning powers on the City w/out
procedural requirements, yet the City chose to hold a public hearing, and gave CPR
sufficient disclosure to allow it to participate in the process. CPR claimed that written
submissions to City Council from public were not made available to it. Court held
that these were made available through the City Clerks office. CPR complained that
the City failed to disclose documents related to an investigation by the BC
Building. CPR said that this info would have helped them make a more powerful
argument that the by-law was foreclosing options which drew public interest. Court held
that the relevance of the documents were tenuous.

RIGHT TO ORAL HEARING

Audi alteram partem, or the right to hear the other side, does not impart the strict rule
that there must always be an oral hearing

When is an Oral Hearing Required? Factors to determine if an oral hearing is


necessary:


o Khan, Singh, and Suresh: where a serious issue as to credibility presents
itself
o Competing Values oral hearing with cross-exam vs. pure inquisitorial
method; where complainants trauma in sexual harassment cases of having
to face harasser
o Capacity of Individuals language barrier, illiteracy
o Impact on Individual more serious the impact more likely to argue for
an oral hearing; complex matters may be better handled in an oral setting;
o Access to Information
o Nature of Matter & Kind of information that the decision will be
based on if primarily based on technical information, medical reports
etc it might be better to present it in writing. It might be harder to get
this information across orally.

Baker v Canada (No presumption of oral hearing): The court rejected Bakers argument
that an oral hearing was required. Therefore and oral hearing will not always be required
for procedural fairness


o There is no longer even a presumption of oral hearing
o She wanted to appear in person but the court determined written
submissions were sufficient in this matter she was adequately heard.

Singh et al v Minister of Employment and Immigration (Even in the face of clear


statutory direction as to how procedure is to be conducted, the decision to deny a party
the right to oral hearing where there is a Charter right at stake, in addition to their
credibility being at issue, a right to an oral hearing invariably will follow):

FACTS: 7 claimants had no opportunity to present their cases in oral hearings before
either the decision maker at first instance or the Immigration Appeal Board on
appeal. The statutory scheme provided for the possibility of an oral hearing, but
only before the IAB on appeal, and only if the IAB concluded that there were
reasonable grounds to believe that the claimant could make a successful claim at an
oral hearing. The appellants allege that the procedural mechanisms in the Act deny
them of their rights under the Charter.

Procedural process: Senior immigration officers examines under oath Transcript sent
to parties Refugee Status Advisory Committee uses transcript and own info to decide
Advise in writing Claimant has right to lawyer.

ISSUE: Whether the procedures of the Immigration Act for adjudicating claims of
persons claiming refugee status deny claimants rights to which entitled under s 7.

ANALYSIS:

Wilson J found that this authority (to determine the probability of success under s 71) is
one that Parliament clearly conferred upon the Board and is sound. The procedures set
out in s 71 were followed correctly in this case. Thus, if the appellants are to succeed,
they must succeed on the basis of Charter requirements [Note the conventional wisdom
that resort to Charter should be reserved for cases where ordinary statutory interpretation
cannot provide remedy].
Application of Charter:

(i) Section 7 requires that everyone has the right to life, liberty, and security of the
person and the right not to be deprived thereof except in accordance with the principles of
fundamental justice

(ii) Everyone encompasses everyone physically in Canada

(iii) Do the appellants fall within the scope of s. 7? Must first determine what rights
appellants have under the Act. One of these includes right not to be returned to a country
where his life or freedom would be threatened. Security of the person must encompass
freedom from threat of physical punishment or suffering as well as freedom from such
punishment itself. Thus, there is a deprivation of security of person

(iv) *** Is fundamental justice denied by the procedures? Counsels agreed that at a
minimum the concept of fundamental justice includes the notion of procedural
fairness. So, do the procedures set out in the Act for the adjudication of refugee status
meet this test of procedural fairness (i.e. do they provide an adequate opportunity for a
claimant to state his case and know the case he has to meet)? **Where interests under
s 7 are at stake, which are of such importance, an oral hearing will INVARIABLY
be required, particularly where credibility of the party is at issue.

Also, where credibility is at stake, as it almost always is in refugee cases, its


difficult to conceive of a situation where the claimant would not be entitled to
prior discovery of the Ministers case and an oral hearing.

DELAY

In all of these cases, there is potential for the individual complained of to suffer prejudice
from his peers, family, and colleague the longer the proceedings are delayed.

Blencoe v British Columbia (Human Rights Commission) (The framework for analysing
DELAY and specific factors):

FACTS: B, Minister, has allegations made of sexual harassment against him, and
complainants filed complaint with human rights commission. Hearing was scheduled to
be held over 30 months after initial complaint made. In meantime, B lost Cabinet
position, did not stand for re-election, and suffered depression. B made application for
hearing to be stayed, claiming human rights commission had lost jurisdiction b/c of
unreasonable delay. CoA directed that proceeding be stayed. Human Rights
Commission appealed.

ANALYSIS (Majority Judgment):

Framework for Analysing Delay:


Generally, for delay to be a denial of procedural fairness, the prejudice will involve
circumstances related to the hearing itself and, thus, will be an abuse of process (i.e.
delay causes failure to bring all evidence forward).

But delay that affects personal factors may be sufficient to be a denial of procedural
fairness (i.e. to make a full answer and defence) IF the delay is a direct cause of
significant psychological harm to an extent that brings the proceeding into disrepute
(this will be unacceptable/inordinate delay).

In order to find an abuse of process, the court must find that the damage to the
public interest in the fairness of the admin process, should the proceeding go ahead,
would exceed the harm to the public interest in the enforcement of the legislation if
the proceedings were halted [really high threshold].

***Factors for Analysing Delay (Contextual Analysis)***: Stress and stigma resulting
from delay may contribute to abuse, but in this case the delay was not inordinate. The
determination of when a delay is inordinate depends on:

1. the purpose and nature of the proceedings


2. which individual rights are impacted
3. what the community thinks about it
4. whether the respondent contributed to the delay or waived the delay (the
causes of the delay). Not based on length alone. Must look at contextual factors,
including the nature of the various rights at stake in the proceedings. The
overarching issue is whether the community sense of fairness is offended by the
delay.

In present case, communication b/w parties was ongoing. Further, the delay must have
caused prejudice of such a magnitude that the publics sense of decency and fairness
is affected. B and his family suffered obvious prejudice, but such prejudice may not
have resulted directly from the delay.

ANALYSIS (Dissenting Judgment In Part) (Abusive delay is wrong, whether it


affects hearing or not): Assessing unreasonable delay: Unreasonable delays must be
identified within the specific circumstances of every case: (a) not all delay is the same (b)
not all administrative bodies are the same.

Three main factors to be balanced in assessing the reasonableness of admin delay:

1. The nature of the case; how complex the factual and legal intricacies of the case
are and how much time is needed for procedural safeguards of the individuals
involved
2. The cause of the delay
3. The impact of the delay

Application of these factors:


(1) Complexity of case low (B made sexual overtures, no direct witnesses, not much
evidence); so, the inherent time requirements were minimal, but the time taken was not
minimal. Further, the Commission failed to keep those affected by its decision up to date

(2) B was not responsible for the inefficiency of the Commission, and B even took steps
to mitigate against further delay (i.e. offered to forego the investigative stage of the
complaints)

(3) Bs career finished, moved twice to make new life, depressed,


stigmatized. Moreover, the delay affected the complainants in their desire for a quick
disposition

Administrative remedies available: The delay entitles B to some kind of


remedy. Remedy must take into account interests of respondent, plaintiffs and the public
interest which wants basic rights enforced efficiently, but fairly. The 3 possible remedies
are: stay of proceedings, orders for an expedited hearing and costs.

Stay of proceedings: Heavy burden to succeed (gross abuse of process or compromise of


fairness of hearing), and it also affects the interest of the complainants who lose
opportunity to have their complaints heard.

Expedited hearing: Approach of courts should change when it appears that the hearing
will remain fair, in spite of the delay and when delay has not risen to the level of
shocking abuse. In this context, a more narrow remedy, such as this one is
effective. This may safeguard the rights of all affected.

Costs: Will not address the delay directly, but some of its consequences. Whenever
parties are compelled to seek judicial interventions to safeguard their rights, costs must be
considered to compensate at least in part the time, money and efforts expended.

Appropriate remedy: An order for an expedited hearing should have been remedy of
choice. Also, in spite of partial success of appeal (as stay should be lifted), B is entitled
to some compensation in the form of costs

COMMENT: What did the 2 judges agree on?

(1) Having a very high threshold for proving that a stay of proceedings should be granted;

(2) Delay can be unacceptable or inordinate based on the procedural prejudices arising
out of the structure of the inquiry or based on psychological prejudices felt by the person
involved in the inquiry;

(3) Factors used to determine unreasonable delay are essentially the same

I (A) v Ontario (Director, Child & Family Services) (Engage in a contextual analysis of
the delay, e.g., purpose of delay important, and its not just about the length of delay):
FACTS: Foster parents cared for child for first 13 months after birth. They were asked
to adopt, but they refused. But then foster parents, the day before permanent placement,
notified Childrens Aid that process needed to stop. Child taken from Foster parents
home. They complained to Childrens Aid (HCAS) and were referred to external review
process in Jan 04. In Feb 04, foster parents requested a Directors review of decision to
have child with them. Hearing in June 04, Foster parent called evidence that moving
child would cause harm. Director proposed assessment was needed, which was
completed in October 04. HCAS called rebuttal evidence. Hearing re-convened, then
Director offered adjournment to Foster parents to consider such evidence, but they
wanted to proceed with hearing. Director found HCAS evidence persuasive and
confirmed decision to place child with adoptive parents in Dec 04. Foster parents
brought application for judicial review, alleging, inter alia, delay

ANALYSIS:

- Delay b/w child taken away and decision was 1 year. Some things that caused the
delay included waiting on the psychiatrist report of the foster parents, and then a report
from the adoptive parents psychologist.

- Court concluded that this elapsed time seems scandalous (a 13 old child having to
wait 1 year prior to finally ending up in a home) [Remember, analysing delay is context
driven. In Blencoe, there was a longer delay, yet it wasnt deemed scandalous]

- Relevant contextual factors in deciding when long is too long:

(1) Analyse Statute: In this case, indication that there is short periods of time for
decisions to be made (i.e. quick

decisions were required generally, even though the Statute was silent on this
matter). Although with respect to

this matter, there was no mention of time limit.

(2) Cause of delay: Look at the causes of each delay. Here, the biggest delay was the
wait for the report from the

child psychologist

(3) Purpose of info?: But then you can look beyond that and ask, what was the purpose
of the info on which the

delay arose? In this case, to look at the best interests of the child.

HELD Court suggests that indication that this delay was too long (Statute). As long as
reasons for delay were in accordance with purpose of the statute (which is protecting
the childs best interests), procedural unfairness wont arise.
Issues of DELAY resulted in the quashing of an administrative decision in Watson v
Saskatchewan (Police Commission):

Watson v Saskatchewan (Police Commission):

FACTS: W, while on duty, was involved in an apprehension of a person with mental


problems, and was placed on desk duty after he allegedly neglected his duty and made
a false/misleading entry in an official document. A hearing was held in Feb and March
2002. Decision was rendered against W, resulting in discipline of reprimand, suspension
and one year term of probation imposed in March 2003. W filed notice to appeal, and
received no response. A year later, W filed a Notice of Application to Quash
Conviction and Determine Appeal under the Police Act. Again, the Commission
didnt respond.

Grounds of appeal: The Commission has an obligation to act fairly and reasonably to
the applicant, requiring to act without delay; The delay in this matter has been
unreasonable and in violation of principles of natural justice; The applicant has not
participated in or condoned the delay; The Applicant has suffered serious prejudice,
including restrictions on the advancement of employment, he had been assigned desk
duty and no longer patrol sergeant, he has to work under the mentality that everyone
knows he is under a disciplinary order, he suffered stress disorders etc

ANALYSIS: Was there inordinate delay that caused actual prejudice of such a
magnitude that the publics sense of decency and fairness is affected and would bring the
administrative process into disrepute and so constitute an abuse of process? This must be
viewed in the context of the case

Legislature has placed this matter of discipline in the jurisdiction of the Chief of
Police. If a penalty is imposed, there is a possibility of an appeal through leave, but there
is no right of appeal. Through the enactment of the Police Act and the Municipal Police
Discipline Regulations, the possibility of appeal was created. This is a matter for the
Commission, the discretion of which must be exercised in accordance with principles of
natural justice [Note, maybe the judge got this wrong, given the possibility of a writ of
mandamus]. The discretion cannot be forced, but how long must W wait?

Court engaged in a clear look at all the things that can be considered, e.g., personal
impact (lost money, job duties, stigma attached); the policy changed which made what he
did best practice (so what he did wasnt that bad);

The key question is does the above constitute inordinate delay that has caused actual
prejudice of such a magnitude that the publics sense of decency and fairness is
affected and would bring the administrative process into disrepute and so constitute an
abuse of process? This must be viewed in the context of the factors in the case.

HELD In this case, there was a negative impact on personal rights, and negative impact
on the public interest over all. *Balancing the rights of public interest in having these
matters finally adjudicated in accordance with the legislative scheme/maintaining police
discipline, and the rights of the individual to be dealt with in accordance w/ principles of
natural justice, the balance tips in favour of the individual. The machinery prescribed by
legislation in this case is dysfunctional.

OTHER PARTICIPATORY REQUIREMENTS: Counsel, Written Submissions,


Requirement of Reasons

Fairness may also demand various measures to ensure effective participation, including
right to adjournments, lawyers, interpreters, adequate time to prepare etc. The Baker
factors guide whether the particular factual circumstances require any particular
procedure to allow for effective participation.

COUNSEL

The right to counsel is usually assumed or provided by statute. But, there is no


presumption in favour of a right to counsel:

1.
o Costs if one party wants counsel, then everyone deserves it
o Length of Proceedings/efficiency concerns: Makes the proceedings more
complex and adversarial

Markwart v Prince Albert (City) (The City should have adjourned the matter for a
reasonable period of time in order for appellant to get counsel, given the serious
potential for injury):

FACTS: Appellants owner of apartment building. Building inspected and failed tests,
and was ordered to be demolished. Appellants appealed the order pursuant to the Cities
Act. On the day of the appeal, applicants filed letter requesting adjournment b/c their
legal counsel was unable to attend. Council passed resolutions which denied the
appeal. Appellants applied to Queens Bench Chambers for relief. The appeal was
denied. They now appeal their order for dismissing their application for judicial review
and order dismissing appeal.

ANALYSIS:

(1) Baker factors: Importance of decision focussed on here. The City proposing to
demolish building owned by appellants is tantamount to expropriation w/out
compensation. These circumstances require STRICT compliance w/ rules and duty of
fairness.

(2) Failure to provide reasons: City conceded that duty of fairness required consisted, in
part, of duty to provide reasons for denying the appeal. The memorandum of the
inspector was obtained by the appellants which is sufficient to comply with duty to
provide reasons (see Baker where notes of immigration officer were sufficient)
(3) Denial of request for adjournment, due to lack of counsel: Appellants were given
an opportunity to be heard, but was the case presented in the best light (i.e. could Counsel
have helped argue the case better)? First, the events took place in a short period of time
with short notice (given seriousness of matter). The City could have adjourned the matter
for a reasonable period of time in order to wait for counsel. The Council gave no reasons
to justify its denial. Thus, the effect was to deny the appellants a fair opportunity to
present their case

Decision to grant refusal is discretionary, but serious potential for injury is relevant
consideration.

Ha v Canada (Minister of Citizenship and Immigration) (Complexity of factors, such as


lots of legal issues, suggests right to counsel; also, see application of Baker factors):

FACTS: Three sisters, citizens of Cambodia, applied to settle in Canada has Convention
refugees seeking resettlement (CRSRs). Applications denied, and following judicial
review, were sent back for re-determination. Their lawyer requested to be present at 2nd
interview. Visa officer, citing policy memorandum, denied request. Applicants applied
for judicial review, claiming that the decision to exclude their lawyer breached
procedural fairness.

ANALYSIS:

(i) Duty of fairness is context dependent; the content of the duty must be determined on
the individual facts of the case. Court cites authority saying that when a duty of fairness
may require a lawyer to be present, noting Decision makers who deny representation to
counsel in circumstances which the court later rules are sufficiently complex so as to
require counsel, or in which there is a sufficiently difficult question of law that prevents
party from adequately presenting case, will be reviewable by natural justice

(ii) Content of the duty:

1. Nature of decision: Visa officer must determine whether the applicants meet the
legal requirements set out in the Act and Regulations, which does not involve
considerable discration. Second, the decision also has big legal element and legal
question. During the interview, the officer asked questions of a legal character
(the interview was more than about established facts, it also involved
consideration of legal issues). These factors lean toward the right to counsel. In
the past, in addressing right to counsel issue, courts primarily considered whether
questions were of legal or complex nature (see Laroche and Beirsdorfer). Further,
by not being present, the counsel will be unable to address important issues in his
written submissions. Third, the appellants interview cannot be classified as
taking place at a preliminary stage in the process and, therefore, the Dehghani v
Canada decision that the principles of fundamental justice did not include the
right to counsel at such a stage is distinguishable (i.e. Dehghani was later entitled
to a full inquiry at which counsel could be present).
2. Nature of Statutory Scheme: First, there is no right of appeal from the Officers
decision (simply b/c applicants can reapply for visa should not lower content of
duty b/c of higher scrutiny of further applications). Second, simply b/c officers
not obliged to interview all applicants doesnt diminish the procedural protections
that they owe to those they do interview (once they interview, they must do so in
accordance w/ duty of fairness).
3. Importance of decision: Visa officers decision is of great significant, given
application for permanent residence. The stability of the applicants in their home
was not clear.
4. Legitimate expectations: Visa officer wrote to counsel stating that counsel are
never allowed at interviews. This is inaccurate statement of law, as visa officers
must determine cases based on their facts. Thus, as a result of a general statement
that counsel cannot attend interviews, the appellants may have assumed that it
would be futile to attempt to ask the visa officer to reconsider his decision.
5. The choice of procedure made by the agency: The Court must guard against
imposing a level of procedural formality that would unduly encumber efficient
administration. But in this case, counsel are only asking that counsel observe
proceedings. This would not unduly encumber efficient administration.

HELD Applicants should have been allowed counsel present. Thus, the case must be
sent back to a different visa officer to hold another interview and reconsider the
applicants cases.

Comment: This decision highlights three issues disclosure (ability of counsel to be at


interview to note the relevant points the admin body will use against her or his client);
right of counsel in admin proceedings and the application of Baker factors.

REMEDY: Because the appellants were denied their right to procedural fairness during
the interview, the case must be sent back to a different visa officer to hold another
interview and reconsider the appellants case.

RIGHT TO MAKE SUBMISSIONS

Essential purpose of the right to be heard is to put your own info to the admin body (note,
however, that it is likely that if there is loads of info you want to submit, only the clearly
relevant material could be expected to be taken)

Edmonton Police Assn v Edmonton (City) (Right to take into account written
submissions):

FACTS: Appellant diagnosed w/ anxiety disorder. He received benefits from the City
pursuant to a collective agreement. A majority of a medical review panel cut off
benefits. Judicial review denied. He appealed on ground that he was denied procedural
fairness before the panel. Main complaint was that his written submissions were not
placed before or considered by the panel.
ANALYSIS:

Berger J.A.:

- The Constable was entitled to a high standard of procedural fairness: the panels
decision is final and binding, and its role is adjudicative; the decision clearly impacts on
the members welfare and livelihood

- On judicial review, and re: procedural fairness, Court is to determine the SCOPE of
tribunals duty and see whether tribunal adhered to it. So, this is where you look at Baker:

1. Nature of Decision and decision making process employed: final decision; role is
adjudicative
2. Nature of stat scheme: its a final decision
3. Importance of decision to individual affected: Decision that directly impacts the
members livelihood
4. Legitimate expectations of party challenging the decision: anticipation of high
standard of fairness
5. Nature of deference accorded the body: Didnt go into detail

- The right to be heard requires a tribunal to give a fair opportunity to those who
are parties in the controversy for correcting or contradicting any relevant statement
prejudicial to their views. The appellant provided documents to the Director of
Disability Management for the City to be put before the panel. That didnt happen, and
the appellant was not told that the panel didnt receive this info. The panel may have
taken different steps had they been aware of the document

Slatter J.A. (concurring):

- If there is no substantial wrong or miscarriage of justice from the procedural error, the
error would likely be a technical irregularity, meaning that the decision isnt
necessarily void.

REMEDY: Appeal allowed. The medical review panels decision is quashed and the
matter remitted to a newly constituted medical review panel for consideration

DUTY TO PROVIDE REASONS

Why would party want reasons part and parcel to the duty of fairness?

(1) Fair and transparent decision making

(2) Reduces the chance of arbitrary or capricious decisions and

(3) Cultivates the confidence of citizens in public officials (Congregation des temoins)
(4) If you dont know why a decision maker decided, then it will be difficult to appeal
decision

In certain circumstances the duty of procedural fairness will require the provision of a
written explanation for a decision. The strong arguments demonstrating the advantages
of written reasons, like:


o where the decision has important significance for the individual,
o when there is a statutory right of appeal,
o any other significant circumstances that call for reasons (Baker)

Congregation des temoins de Jehovah de St-Jerome-Lafontaine v Lafontaine


(Requirement of reasons):

FACTS: The Congregation requested a zoning variance from the Municipality on 3


occasions. First one, they denied, and gave reasons. The problem lies within the
response to the 2nd and 3rd applications (see bellow).

ANALYSIS:

- Whether the Municipality of the village of Lafontaine lawfully denied an application for
rezoning to permit the Congregation to build a place of worship; specifically, does the
duty of fairness require the Municipality to give the Congregation reasons for refusing
the rezoning the application? Baker analysis follows.

(1) Nature of the decision: Decision is made by an elected council accountable to its
constituents. The Municipality must act in the public interest. What is in the public
interest is in the discretion of the Municipality. Provided they act honestly and w/in the
limits of statutory powers, the court should not interfere. But the Municipality cannot
deny an application in an arbitrary way.

(2) Statutory Scheme and its Provisions: In this case, the Act respecting Land Use and
Planning Development grants Municipality authority to consider rezoning
applications. *The absence of an appeal provision demands greater protections.

(3) Importance of Decision on Interested Party: *The stringency of procedural


protections is directly proportional to the importance of the decision. Here, the decision
affects the Congregations practice of its religion, which is of primary importance and
protected under the Charter.

(4) Legitimate Expectations of the Interested Party: Where prior conduct creates for
the claimant a legitimate expectation that certain procedures will be followed as a matter
of course, fairness may require consistency. *Here, Municipality followed an involved
process in responding to the Congregations first rezoning application, in doing so giving
rise to Congregations legitimate expectation that future applications would be carefully
considered.

(5) The Nature of Defence Due to the Decision Maker: Municipal decisions on
rezoning fall w/in the sphere where Municipalities have expertise beyond the
judiciary. But this doesnt carry much weight where there is no record to indicate that the
Municipality has actually engaged its expertise in evaluating the applications.

2nd Zoning Application: Congregation applied for rezoning a new lot. Municipality
denied request summarily, without giving reasons. They noted that there were P-3 lots
available, but didnt direct C to them. Had C merely reapplied for the first lot, reasons
may not have been expected. The findings of the first study that analysed the impact of
rezoning on the first lot werent applicable to the 2nd lot (i.e. tax impact). New
evaluation was required, together with an explanation.

3rd Zoning Application: This request related to the same lot subject of second
request. C provided letters with its fruitless attempt to find P-3 zoning. M denied
application again, offering no reasons. This time didnt even tell that P-3 land was
available. *M argued that since Legislature conferred discretion upon it, it was not
required to offer any justification for refusing application.

HELD M breached the duty of procedural fairness it owed to C a duty heighted


by the expectations established by the Municipalities own conduct and the
importance of the decision. M acted in a manner that was arbitrary. Cs
applications were in good faith on the advice received from the municipal inspector
following the first application. C offered evidence of goof faith searches for P-3 land
evidence M didnt bother to comment on.

REMEDIES

1.
o If X successfully challenges the decision on procedural fairness grounds,
first must question whether the challenge was on appeal or through
judicial review
o E.g. where appellant was denied procedural fairness due to lack of
counsel, the case was sent back to a different decision maker to hold
another interview and reconsider the appellants case (Ha)
o Certiorari (on JR)
o Allow appeal (if statutory right of appeal) and set aside, for example, the
resolutions made and remit the matter back to the board (E.g. Markwart)
o Costs (party to party or solicitor client)

PROCEDURAL FAIRNESS:

BIAS, IMPARTIALITY AND INDEPENDENCE


Five types of bias:

(1) The decision maker has a financial interest in the outcome;

(2) The decision maker has a personal relationship with one or more of the parties (e.g.
being affiliated with one of the parties associations of family, friends or professional
connection)

(3) The decision maker has previous knowledge of or involvement in the matter to be
decided;

(4) The words or actions of the decision maker suggest a prejudice or partiality
(ACTUAL BIAS)

(5) The institutional arrangements prevent an impartial rendering of decisions

Remedies:

Bias or lack of independence will result in the quashing of the decision and remitting it
back to a different decision maker (who is equally qualified)

IMPARTIALITY AND BIAS

People when making decisions are influenced by all kinds of things and experiences in
their life. There are only certain things about which we are worried which might affect
their impartiality.

Actual Bias

Newfoundland Telephone Co. v Newfoundland (Spectrum of neutrality; Test for


reasonable apprehension of bias; Pre hearing vs At hearing/Post hearing bias):

FACTS: Public Utilities Act gives the Board the power to regulate NTC. The
commissioners of the board are appointed by the Lieutenant Governor in Council. The
Statute says that commissioners cannot be employed by, or have any interest in, a public
utility. Andy Wells was appointed as commissioner to the board. Earlier, Wells had
acted as an advocate for consumers rights, and admitted that he wanted to play an
adversarial role on the board champion consumer rights.

The board commissioned an accounting firm to provide cost analysis of NTC, and in light
of report of the Board, and decided to hold a public hearing. Prior to hearing, Wells had
described the pay/benefits of NTCs executives as ludicrous/unconscionable.

The Boards decision on August 3 (i) disallowed the cost of the enhanced pension plan
for certain senior executive officers and (ii) directed the appellant to refund its customers
in the former operating territory sums which were charged as expenses to the appellants
operating account to cover the cost of the enhanced pension plan (iii) and made no order
re: individual executive salaries. Wells and two others constituted the majority.

CoA found that there was a reasonable apprehension of bias (based on the statements
made), but they looked to the actual result of the decision (and said that it wasnt biased).

ANALYSIS:

(1) Spectrum of Neutrality:

There are a diversity of boards. Those that are adjudicative will be expected to comply
with standard applicable to courts (i.e. there should be no reasonable apprehension of
bias). At the other side, there are boards with popularly elected members (with those
boards, the standard will be more lenient).

The Board has been given supervision of the provincial public utilities. The Board, when
it believes any charges or expenses of utility are unreasonable, may on its own whim
investigate. And when determining whether any rate or charges is unreasonable, the
board will assess the charges in economic terms. In these circumstances, the board is
dealing with policy issues, not legal questions (and so, will come closer to legislative
decisions rather than adjudicative).

Spectrum of Neutrality

Fewer procedural protections More


procedural

(More difficult to disqualify decision (Impartiality


requirement more like Courts)

Maker bias)

<
>

function is policy laden - primary


function adjudicative
political dimension - apply legal test
to resolve dispute
elected decision maker - statute points to
greater impartiality
important to have diversity of viewpoints
investigative
statute suggests diversity of decision maker
note: policy will often include broad range of interests
; Polycentric considerations, and not just 2 sides

(2) Test for reasonable apprehension of bias: Would a reasonable, informed person,
viewing the matter realistically and practically and having thought the matter through,
concluded that it is more likely than not that the decision maker (consciously or
unconsciously) will not decide fairly [so, reasonable person test].

(3) Pre-hearing Statements: A WIDE licence must be given to board members in the
investigative stage to make public comment. At the investigatory stage, statements
manifesting a mind so closed as to make submissions futile would not constitute a basis
for raising an issue of apprehended bias.

(4) Once the Hearing Date is Set; At the Hearing; After the Hearing: At these points,
the parties were entitled to expect the conduct of the commissioners would be such
that it would not raise a reasonable apprehension of bias. Although the standard for a
commissioner sitting in a hearing need not be as strict as a judge at a trial, procedural
fairness must be maintained. The statements made by Wells during and after the hearing
lead to the conclusion that a reasonable person apprised of the situation would have an
apprehension of bias. Wells demonstrated he had a closed mind on the subject. It
follows that the hearing proceeded unfairly and was invalid.

International Woodworkers of America v Consolidated Bathurst Packaging (Impartiality


in relation to being influenced by others who have not heard the evidence does the
full board meeting create an improper influence?):

FACTS: The Labour Board heard matters in a panel of three. An issue arose as to
whether the parties were acting in good faith (a key issue that labour relations deal
with). The parties brought up issue of whether a previous precedent should be relied
on. To discuss the issue, the panel decided to convene a full board meeting to discuss the
issue. Complainant raises issue of impartiality.

ANALYSIS:

Two potential problems w/ having a full board:

(1) Argument that principle person who judges should be the one that heard the evidence
is breached; influence is improper;

(2) If there is new arguments that the new panel brings up, then either parties might not
be able to respond (linkage of right to be heard).

Issue: does the full board meeting create an improper influence (i.e. impartiality
concern)?

In response, court looked at the following:


(1) Advantages/Disadvantages of having a full board meeting:

Advantages: (a) Benefiting from acquired experience of all members, chairman,


vicechairmen etc; (b) Different panels will decide similar issues in a different manner
(and the outcomes of disputes shouldnt depend on the identity of the panel), so outcome
of consistency; (c) policy requires change, and this forum gives opportunity to change
policy; (d) more likely to have early resolution if there is consistency; (e) extension of
normal acceptable research process; Disadvantages: (a) Evidence and ideas can be
obtained from people other than parties; (b) Reduction of decision makers responsibility
(here, its not a broad public consultation, so you probably dont have the same wacko
concern throwing out stuff that really isnt material);

(2) As a general rule, all the members who will actually participate in the decision must
have heard all the evidence as well as the arguments presented by the parties (except
where legislation states otherwise)

(3) Look at what are the institutional constraints on the tribunal, if any (e.g. this board
heard so many cases per year). A full board hearing was deemed a practical
impossibility.

(4) Definition of judicial independence: complete liberty to decide a given case


according to ones conscious on the basis of laws and evidence w/out interference of
other persons (this is the higher water mark of judicial independence)

(5) Even though complainant says that full board meeting would violate that definition
(possibility of persuasion), Court disagrees, citing:

(a) Procedural safeguards: No vote requirement; attendance was voluntary/wasnt taken


down/no minutes were taken

(no official document); didnt challenge the facts; SCC agrees w/ Chairman. Full board
meeting wasnt improper.

(b) Its ok to decide policy issues, if its the panel thats still deciding the final matter,
and there is no message that the

will of the majority will prevail. The relevant issue is not whether the practice of holding
f.b. meetings can cause

members to change their minds, but whether this practice impinges on the ability of
members to decide according to

their own opinion.

(c) So long as no new evidence is introduced w/out the presence of the parties
Comment: This gives a look at how to analyse impartiality. We dont apply a strict test
such as that in Baker, and its more of a broad level, principal based analysis.

Financial Bias and Impartiality

Canadian Pacific Ltd v Matsqui Indian Band

CP alleges existence of financial bias as band members on appeal board have a financial
interest in the matter. But Court said: (i) this is a community interest, not an individual
interest and (ii) you need more than mere speculation to have a finding of bias in this
case, CP hadnt even gone through the process, yet CP was claiming this bias. Financial
bias: has to be a personal and distinct financial interest distinct to the decision
maker. If there is financial bias, it will likely be fatal to the decision, unless statute
authorizes financial interest.

Institutional Bias and Impartiality


o EX: Two stages of hearing process; stage one formal hearing and decision
making process, then if applicant is not satisfied then they go to stage two,
they appeal to another group for re-consideration. If it includes members
of the previous committee on appeal, this may be a bias issue
o EX: If same people carry out more than one function (i.e. investigate,
make decision about prosecution and then sit on hearing may lead to bias);
o EX: If staff lawyer advices each stage, then its might be institutional
bias);
o EX: Internal consultations a person who makes decision should make
decision based on info theyve heard. If there is consultation, that may
give rise to institutional bias.

Moore v New Brunswick Real Estate Assn:

FACTS: M was a licensed real estate agent who was charged w/ professional misconduct
for failing to submit an offer to purchase to his client. A complaint was made, and the
matter was brought before the Real Estate Associations Discipline Committee. At the
discipline hearing the chair of the committee suggested that they should deal with the
penalty issue AT the hearing in case the committee found the defendant guilty. Ms
counsel initially objected but eventually agreed to proceed w/ the issue. M found guilty.

ANALYSIS:

(1) Institutional Bias Test: Its about how the tribunal operates as opposed to the
identity of one of the decision makers. The TEST is: would a well-informed person,
viewing the matter realistically and practically, and having thought the matter
through, have a reasonable apprehension of bias in a substantial number of cases?
(2) Allegation of Bias (Here): Having the penalty hearing within the guilt finding process
may not give accused notice on what they are making submissions about (i.e. of the 5
offences charged, which one are they making the submissions on?); also, when they are
making submissions about penalty, they may be interpreted as admitting to guilt**

(3) No Institutional Bias Found: Court looked at these factors:

(a) Not contrary to the legislation (ie. nothing in the legislation requiring two hearings);

(b) Administrative realities (costs); e.g., every real estate needs to be called in for a
hearing, so we cant separate the

two hearing issues to two days

(c) Importance of our interest affected (what are the penalties?), e.g., M was fined and
had to pay $ 2000; its not the

end of his career

(d) This is fairly common practice w/ Boards

(e) Can argue in the alternative, so people can avoid some of the bias;

(f) Court looked at two BC cases, noting that in those cases, the types of allegations
pursued before securities

regulator, and the consequences of a finding of professional misconduct have the air
of quasi-criminal

proceedings, then a separate hearing may be needed.

INDEPENDENCE AND BIAS

Overarching question is, again, whether a reasonable apprehension of bias exists


because of the alleged inadequacy of independence

Independence refers to a tribunals ability to decide matters without improper


interference.

First, assess the enabling statute:


o Role of statutes in this is critical. The rest of common law duty of
procedural entitlement. Common law rules of independence and bias can
be overruled by statute unless you have a Charter argument. A statute can
authorize a person explicitly or by necessary implication to carry out his
decisions with bias and even without non-independence (Ocean Port)

Second, determine the level of independence required (See Bell independence spectrum),

Third, analyze whether the three Valente principles can pass the threshold of
independence (security of tenure, financial security, and administrative control): ask,
would a reasonable, informed person, viewing the matter realistically and practically
and having thought the matter through, concluded that it is more likely than not that the
decision maker (consciously or unconsciously) will not decide fairly (Newfoundland
Telephone)?

Bell Canada v Canadian Telephone Employees Association (Definitions of


impartiality/independence; Factors associated with determining levels of impartiality
and independence):

FACTS: The Tribunal was responsible for responding to allegation of discrimination in


wages by Bell. Bell thought that the arrangement between the Tribunal and the
overseeing Commission violated principles of impartiality and independence. The
Commission had the power to issue guidelines setting out the extent and manner in which
any provision of the Act applies. Specifically, the allegation of bias was twofold: (1)
Guidelines fetter tribunal and leads to bias (impartiality/neautrality issue); and (2) they
say tribunals chairpersons power to extend tenure of decision maker is discretionary
which affects independence and impartiality.

ISSUES:

(1) Distinction b/w Independence and Impartiality: Both are components of the rule
against bias (nemo debet esse judex in propria sua causa). Tests for both require us to
ask: What would an informed person, viewing the patter realistically and practically, and
having thought the matter through conclude? But the requirements arent identical.

1. Impartiality refers to a state of mind or attitude in relation to the issues and the
parties, and connotes absence of bias (i.e. whether or not decision maker has the
ability to decide fairly based on proper considerations). Determining the level of
impartiality, we look at: (i) the function of the decision maker (i.e adjudicative?
Policy making?); (ii) The provisions of the enabling statute; (iii) the purpose of
the statute (e.g. here, it was eliminating discrimination in society). These factors
determine the spectrum of required for impartiality.

1. Independence connotes not merely a state of mind or attitude, but a status or


relationship to others that rests on objective conditions (its about the structure,
e.g., is there adequate independence from the government?). In determining the
degree of independence required (i.e. degree of separation from executive), look
at: (i) The function of the tribunal (e.g., some tribunals have primary purpose to
develop government policies and may require little procedural protection, and
others are more adjudicative requiring higher level of independence) (note, we
look at all of the functions of the tribunal, which may be at varying ends of the
spectrum, and balance them); (ii) The statute involved and (iii) what are the
interests involved

E.g., The main function of the Canadian Human Rights Tribunal is adjudicative. Also,
consider the interests that

are affected by proceedings before the Tribunal. Both factors suggest a high degree of
independence. There is

nothing in the legislation to suggest that anything but a high degree of independence is
required (e.g. a

Chairperson is removable only for cause; fixed terms etc).

Spectrum of Independence

Fewer procedural
Protection More Procedural
Protections

(Less structural separation from (More


court-like, more separation

Executive) from
executive)

- Part time appointments


Longer, fixed appointments

- Appointed at pleasure of
Full time appointments

Minister or executive
Process for determining workload

- Remuneration may be discretionary


Remuneration guarantees

Bells Challenges to the Tribunal


(1) The Guideline Power: Bell alleges that the Commissions power to issue binding
guidelines regarding proper interpretation of the Act undermines the Tribunals
impartiality by raising a reasonable apprehension of bias (in Bells words, that it usurps
the power of the Tribunal to make its own decisions concerning the interpretation and
application of the Act):

(a) Guideline Power fetters the Tribunal in its application of the Act: Bells argument
assumes that the sole mandate of the Tribunal is to apply the Act, and not also to apply an
other forms of law that the legislature has deemed relevant such as guidelines. Court
says guidelines are like legislation and therefore valid considerations. A functional and
purposive approach of the nature of the guidelines reveals that they are a form of law
(akin to regulations). Their argument also conflates impartiality w/ a complete freedom
to decide a case in any manner one wishes.

(b) Tribunal is more likely to favour the Commission during a hearing b/c of
guidelines: When the Commission appears before the Tribunal, it is in no different a
position from any representative of government who appears before a court, and in that
context, there is no argument for lack of impartiality in that context.

(c) Parliament has placed in the same body the function of formulating guidelines,
investigating complaints, and acting as a prosecutor before the Tribunal (Institutional
Bias): Court responds while in some cases it may, it doesnt in this case: (1) This
overlapping of functions in a single administrative agency is not unusual and doesnt on
its own give rise to bias; (2) The legislature clearly intended the overlap and when there
is clear legislative intent, this limits the court to read in bias, unless there is a violation
of Charter;

(3) Benefit of overlap = guideline power may have been way of ensuring the Act would
have been interpreted in a way that was sensitive to the needs of the public/country, and
thus, that it would be interpreted by the Tribunal in a manner that furthered the aims of
the Act as a whole (thus, PURPOSIVE reasons why there is an overlap)

(d) Placing the guideline power and prosecutorial function in a single agency allows the
Commission to manipulate the outcome of a hearing: Problem w/ argument: (1) Bell
didnt provide any evidence of this practice; (2) Since the guidelines that apply to Bell
were introduced years before the complaints arose, it is difficult to see how they could
have been formulated w/ the aim of unduly influencing the Tribunal against Bell; (3) The
guideline power cannot be used retrospectively

(2) The Chairpersons Power to Extend Appointments: Bell challenges the


Chairpersons power to extend appointments of Tribunal members in ongoing inquiries,
saying that it threatens members impartiality (e.g. members may feel pressure to adopt
the views of the Chairperson in order to remain on a panel beyond the expiry of their
appointment). Court says that there is an obvious need for flexibility in allowing
members of the Tribunal to continue beyond the expiry of their tenure, in light of the
potential length of hearings and the difficulty of enlisting a new member of a panel in
middle of lengthy hearing. It would not be practicable to suggest that members simply
retire upon expiry of their appointment

The independence of the judiciary is a firmly entrenched concept. An issue in the


following case is whether there should be a parallel requirement for admin tribunals:

Canadian Pacific Ltd v Matsqui Indian Band (Requirements for independence listed, e.g.
security of tenure, security of remuneration and administrative control):

FACTS: M is a first nation band, and in 1988 they were given power to assess and
collect property taxes. One of the first parts of assessment is to determine what land falls
in assessment and what doesnt. CP argued they dont have jurisdiction to put them on
assessment.

They point to a lack of certainty of tenure of tribunal members and the uncertainty as to
whether they will receive remuneration and that the members of the Band determine the
tax liabilities of the people who appoint them (independence question)

ANALYSIS:

Independence of Tribunal Members:

- Respondents alleged that a reasonable apprehension of bias exists b/c tribunal


members may not be paid, lack of security of tenure and are appointed by the ban chiefs
and councils.

- In Valente, the court pointed to 3 factors which must be satisfied in order for
independence to be established (in context of s 11(d) where person charged w/ offence):
security of tenure, security of remuneration and administrative control:

(a) Security of Tenure: The pay one makes shouldnt be based on the decision one
makes. What are we looking at: is it an appointment at pleasure (if high degree of
independence needed, must be a fixed term the high water mark is fixed term for
length); who looks at whether someone has been dismissed w/ cause (is it a judge,
minister etc);

(b) Security of Remuneration (Financial security): The right salary and pension should
be established by law and not be subject to arbitrary interference by the Executive in a
manner that could affect judicial independence.

(c) Administrative Control: If administrative decision maker makes a decision, they


shouldnt be stripped of administrative power. What are the guarantees of administrative
support to hire staff, are there guarantees of resources they have; if they need to higher
staff, do they need to go to a minster?
- Note that the REQUIREMENTS of institutional independence (i.e security of
tenure, financial security and administrative control) will depend on the LEVEL of
independence (see Bell Canada case above): THE GREATER THE LEVEL OF
INDEPENDENCE REQUIRED, THE MORE STRICTLY THESE CRITERIA
MUST BE ABIDED BY. And note that when analysing, look at STATUTE FIRST.

Independence Concern

- It is alleged that a reasonable apprehension existed because tribunal members may not
be paid, lack security of tenure and are appointed by the band chiefs and councils, there is
nothing stopping arbitrary dismissal mid-term:

(i) There is nothing preventing band chiefs and councils from paying members only
AFTER they have reached a decision in a particular case, or stopping them from not
paying at all (this could lead to members being re-fused members who reached
conclusions contrary to interests of band)

(ii) Chiefs and band councils select members of their tribunals, in addition to controlling
their remuneration and tenure, which suggests a dependency relationship b/w the tribunal
and band;

(iii) While members of the appeal tribunals are required to take an oath of office that they
will be impartial, the fact that an oath is taken cannot act as a substitute for financial
security or security of tenure.

HELD Based on a flexible application of the Valente principles (b/c of the issue is
merely taxation), a reasonable and right minded person, viewing the whole
procedure in the assessment by laws, would have a reasonable apprehension that
members of the appeal tribunals are not sufficiently independent. Three main
factors are:

(1) Complete absence of financial security

(2) Security of tenure is either completely absent or ambiguous

(3) The Tribunals are being asked to adjudicate a dispute pitting the interests of the bands
against outside

interests

IT IS THESE FACTORS IN COMBINATION which lead to conclusion of bias


not each on their own.

Ocean Port Hotel v British Columbia (General Manager, Liquor Control and Licensing)
(When Statute is silent or ambiguous, can assume intention of independence. But if
legislation shows intention to allow lack of independence, and intention is CLEAR,
courts cannot interfere with it, unless there is a valid constitutional restraint)

FACTS: Liquor licence violations occurred. OP claimed that appeal panel didnt have
requisite amount of independence. CoA held that panel adjudicated claims and imposed
penalties so required high degree of independence. CoA concluded that at pleasure
appointments to administrative agencies which impose sanctions for violations of statutes
cannot satisfy security of tenure. Thus, the board lacked necessary degree of
independence

ISSUE: Whether members of the Liquor Appeal Board are sufficiently independent to
render decisions on violations of the Act and impose penalties it provides.

ANALYSIS:

(1) Absent constitutional constraints, the degree of independence required of a particular


government decision maker is determined by its enabling statute. Confronted w/ silent or
ambiguous legislation, courts infer that Parliament intended the tribunals process to
comport w/ principles of natural justice. Must defer to the legislators intention in
assessing the degree of independence required. Legislation allowed service at
pleasure (no security of tenure) and part time positions. B/c the intention is clear,
there is no room for importing common law doctrines of independence.

(2) Administrative tribunals dont have the same level of independence of executive as
courts

(3) When legislation is silent or ambiguous, courts will infer that legislators intended the
tribunal to be as independent and impartial as required by principles of natural justice
[*Note, there is room to argue whether the statute is ambiguous/clear]

(4) Qualification: If there are any relevant constitutional constraints, the enabling statute
can be attacked even if its intentions are clear.

(5) Constitutional law arguments (which the Court rejected): (1) Judicial independence is
at root an unwritten constitutional principle recognized and affirmed by the preamble to
the Constitution Act 1867 (2) Constitutional guarantee of independence extends as a
matter of principle to administrative tribunals, given the preambles reference to a
constitution similar in principle to that of the UK

(6) Application: The statute specifically said members will hold office at pleasure and
part time positions, and therefore overrides common law security of tenure arguments.

COMMENT: Re: constitutional attacks on clear legislative provisions, it is possible to


also raise s 7 arguments when the circumstances are appropriate (i.e. Suresh). What
about s 11(d) (i.e. right to a fair and public hearing by an independent and impartial
tribunal)? Elle v Alberta says it only applies to criminal offences; Reference re
Remuneration of Judges of the Provincial Court of PEI says that 11(d) is limited to
offences, and likely only applies to criminal offences.

SUBSTANTIVE JUDICIAL REVIEW AND STANDARD OF REVIEW


ANALYSIS

Crevier v A.G. (Quebec) et al (Constitutional duty of court to ensure that public


authorities do not overreach their lawful powers enabled by statute):

FACTS: Tribunal set up to supervise all self-governing professions. Professional


tribunal to be appeal mechanism. Challenge by C who was subject to one of these
decisions, and then decided to challenge jurisdiction to be final. Privative clause
existed. Normally, courts look at clause and shows clear legislative intent admin
tribunal not subject to interference by the courts.

ANALYSIS: Why doesnt that clear privative clause prevent courts from looking at
decision?

(1) Putting together this provincial tribunal whose only function was to review [.] was
tantamount to a provincial government setting up a s 96 court which, however, is the
function of the federal government.

(2) Superior courts can always review administrative tribunal for matters related to
JURISDICITON, b/c if admin tribunal has last word on jurisdiction, then it would have
completely supplanted the courts

(3) Therefore, there is a CONSTITUTIONAL REASON why there is judicial


review. Courts have the inherent function that the laws are complied with. So when it
comes to an area of jurisdiction, tribunal can express an opinion (i.e. to the tribunal first),
but that decision can always be reviewed and changed by our courts, b/c thats a question
of law that the court supervises.

(4) Privative clauses indicate level of deference but in the end, that doesnt prevent the
court from supervising the jurisdiction from the admin decision maker.

Comment: Court has an indirect authority to review decisions of statutory delegate as a


result of presumption that admin decision maker has limited jurisdiction, and superior
courts have inherent jurisdiction to ensure that admin body is within its
jurisdiction. When the legislature gives power to an admin tribunal, if the legislature
gives them too much of the wrong kind of power, they can start to look like superior
courts and that infringes on the entrenchment of s 96 courts

Bell v Ontario Human Rights Commission (Jurisdictional Question): Idea developed


that any question can be turned into a preliminary question (namely a jurisdictional
question); and once its turned into a jurisdictional question, tribunal only retains
jurisdiction when its right
CUPE v NB Liquor Corporation (Not every question is a jurisdictional one Courts can
interfere only where the admins decision was PATENTLY UNREASONABLE and if
no convincing reasons can be put forward):

FACTS: The main controversy was the interpretation of s 102(3) of the Public Service
Labour Relations Act, which says that during a strike, employer shall not replace striking
e/ees or fill their position w/ another e/ee and no e/ee shall picket, parade or in any
manner demonstrate in or near any place of business of the e/or. Can managers fill
in/hire replacement workers? Union said they cannot.

ANALYSIS:

- Traditional approach was to apply a correctness std to a decision of a tribunal on what


they call a jurisdictional question. This meant that lawyers were debating over what a
jurisdictional question was. Labelling something as jurisdictional just isnt clear and its
impractical

- Court here said that when youre interpreting legislative provisions, there will often be
more than one reasonable answer:

(1) Privative clause in this case showed clear statutory direction that public sector labour
matters be promptly and finally decided by the Board. This ties into the special
knowledge of the Board in dealing with collective bargaining issues. The interpretation
of s 102(3) logically lies at the heart of the specialized jurisdiction given to the
Board. The Board isnt required to be correct in its interpretation, and if it erred,
such an error would be protected by the privative clause.

(2) Argument was made, however, that the interpretation of s 102(3) was so
unreasonable that it took the exercise of its powers outside the protection of the privative
clause. In Nipawin, court noted examples of such error would include acting in bad
faith, breaching provisions of natural justice and misinterpreting the provisions of the Act
so as to embark on an inquiry or answer a question it was not remitted to;

(3) Was the Boards interpretation so patently unreasonable that its construction
cannot be rationally supported by the relevant legislation and demands intervention
by the court upon review? In short, court held no.

Comment:


o In this case, the statute was very badly drafted. The fact that the board
could choose between various competing interpretations means we cant
really define whether it is patently unreasonable because they did actually
choose a logical interpretation of the statute.
o Thus, a high level of deference must be paid to courts. Only when the
interpretation is patetently unreasonable does the court have the
authority to intervene and change the tribunals decision; Tribunal has
right to be wrong about certain questions as long as there are several
reasonable interpretations. If there are no convincing reasons that can be
put forward, it becomes patently unreasonable
o What did and didnt CUPE do here? A beginning of a shift (like
Nicholson).

- Abandoned the categorical approach to determining std of review.

- More deferential approach in later cases.

- Some of the same concerns articulated in new type of language. Looking at privative
clause,

what was the board set up to do, what is its purpose?

We havent left the categories of jurisdiction out completely as we will see they
creep

in different aspects of the analysis, but the analysis is better it seems.

UES v Bibeault (Rejects preliminary question entirely; issue is LEGISLATIVE


INTENT; Pragmatic and functional analysis/Contextual analysis):

- Preliminary question phase no longer needed

- Main question: Did legislature intend the question to be within the jurisdiction
conferred on the tribunal?

- In answering this question, engage in a pragmatic and functional analysis, and


determining the level of deference to be paid to tribunal, and look at:

(1) What are the context and purpose of the legislation in question? What are the reasons
for its existence?

(2) Presence or absence of privative clauses

(3) What are the area of expertise of its members and the nature of the problem before the
tribunal?

(4) What significance is to be attributed to the language in which a grant of statutory


power is worded?

- The above approach, as opposed to the preliminary or collateral question inquiry,


offers advantages, e.g., it focuses inquiry directly on the intent of the legislator
- Role of court is guardian of jurisdiction, and standing against bad faith/natural justice
it isnt to intervene at every point. So these are the goals we are trying to meet by
moving to a contextual analysis

Canada v Southam Inc (Creates 3rd Standard = Standard of unreasonableness):

FACTS: It was found that Southams ownership of three different newspaper


publications substantially lessened competition in the newspaper business. The decision
maker here was interested in dismantling the anti-competitive situation (Southam had
somewhat of a monopoly in the newspaper business) and ordered Southam to sell one of
its newspaper publications. There was an appeal by Southam to the Fed Ct of Ap, and the
Fed Ct of Ap did its own analysis and wanted to send it back to the decision maker to re-
assess the situation. CoA overturns tribunal decision, saying they didnt consider expert
evidence properly and substituted opinion in part. This is appealed to SCC.

ANALYSIS:

- Two issues raided: First, whether the Fed Court erred in concluding that it owed no
deference to the Tribunals finding about the dimensions of the relevant market and
substituting one of its findings for its own (standard of review); Second, whether the Fed
Court erred in refusing to set aside the Tribunals remedial order.

(1) Pragmatic and Functional Analysis: The legislative intent of statutory right of
appeal is clear. The issue is what limits an appellate court should observe in exercise of
its statutorily mandated appellate function. Appellate courts must have regard to: the
nature of the problem, the applicable law properly interpreted in light of its purpose
and the expertise of the tribunal

(a) Nature of the Problem before Tribunal:

- Fact? Law? Mixed law and fact?

- Questions of law are questions about what the correct legal test is. Questions of fact
are questions about what actually took place b/w the parties (very specific to
case). Questions of mixed law and fact are questions about whether the facts satisfy the
legal tests

- The question is whether the Tribunal erred in the way the respondent says it erred,
namely in law.

- Iacabucci sets out tests to examine these: Questions of law are those which have
precedential value in future cases. Questions of fact is who, what, when, where and
how, b/c answers to these will be useless in future cases. Mixed fact and law are not
easily distinguishable, but basically, you look at whether the facts in this particular case
satisfy a legal requirement.
- In this case, Court said Tribunal was in applying the law to the facts, which is a
matter of mixed law and fact. But b/c the decision depended so fully on the facts of this
case, the decision is too particular to have any great value as a general precedent. And as
the level of generality of the challenged proposition approaches particularity, the matter
approaches pure application, and becomes a question of mixed law and fact (this suggests
some deference)

(b) Purpose of the Statute and the Tribunal Administers: The aims of the Act are more
economic than strictl legal, and some of its concepts are matters which business woman
and men/economists are better able to understand than a judge. Given such expertise, it
is suggested that the purpose of the act is better fulfilled by appellate deference to the
Tribunals decisions

(c) Privative clause: Absence of privative clause was important here

(d) Area of Expertise: Expertise which in this case overlaps with the purpose of the
statute is the most important to the factors the courts must consider on setting the
standard of review. Here, the Tribunal comprises 4 judicial members and 8 lay members
who are learned in economics/commerce etc. Looking at the dispute, its more about
economics than law (i.e. looking at indirect evidence).

(2) The Standard of Review:

- Considerations which suggest deference: (i) The dispute is over a mixed law and fact;
the purpose of the Act is broadly economic, and is better served by exercise of economic
judgment; application of competition law falls squarely w/in expertise of Tribunal

- Considerations which suggest a more exacting form of review: (i) Existence of


unfettered statutory right of appeal; (ii) presence of judges on the Tribunal

- On balance, proper standard of review fits somewhere between the ends of the
spectrum. B/c the expertise of the Tribunal, which is most important consideration
suggests deference, a posture more deferential than exacting is warranted.

1. Standard of Correctness
2. Standard of Unreasonableness (simplicitor):

- An unreasonable decision is on that, in the main, is not supported by any reasons that
can stand up to somewhat probing examination.

- Must look to see whether any reasons support it. The defect, if noted, could be in the
evidentiary foundation (i.e. an assumption that had no basis in evidence or is contrary to
overwhelming evidence) or logical process (contradiction in premises or invalid
inferences)
Pushpanathan v Canada (Minister of Citizenship and Immigration) (If human rights at
issue (e.g. deportation), then courts will owe less deference):

FACTS: P (refugee) convicted of offence. After released, P renewed his refugee


claim. B/c he was convicted of offence, a conditional deportation was ordered, the
condition of which was that he must not be a Convention Refugee. The question was
whether the conviction disqualified him from having a Convention Refugee status.

ANALYSIS:

- Clear statement that preliminary question is not the issue. Jurisdiction by itself no
longer determines the standard of review.

- Bibeault 4 Factors in determining the proper standard of review:

1. Presence or absence of privative Clauses: Evidence this clause shows that a


court ought to show deference to the tribunals decision, unless other factors
strongly indicate the contrary. Even a full privative clause is not determinative of
the standard of review.
2. Expertise: Most important factor; Making an evaluation of expertise has 3
dimensions: (a) Characterize the expertise of the tribunal (look at the source of
their expertise, i.e. specific knowledge, specific procedure that is non court
related, non-adversarial) (b) Consider courts expertise relatively (i.e is this
something the courts do all the time?) (c) Identify the nature of the issue in
question relative to the expertise (does the tribunals expertise relate to the issue
in question)?

E.g.: (i) Human rights commissions expertise relative to courts is not greater, b/c courts
deal with these issues; (ii) Securities commissions (interpreting provisions of securities
act) have greater expertise its not drawing on legal principles, and is drawing on
technical info; if its more statutory interpretation in general, than not expertise).

1. Purpose of Act as whole, and relevant provision in particular: Is the purpose


to adjudicate on a legal standard, or to balance on many issues; is the purpose
legal, or economic (or policy related); is the purpose to protect the public, or is it
based on 2 interests: (a) Where legal principles are vague, open textured, or
involve a multi factored balancing test, then lower standard of review; basically,
existence of polycentricity a polycentric issue is one which involves a large
number of interlocking and interacting interests/considerations; its not within the
courts realm to deal with polycentric issues; (b) Consider the effect of the court
supervising and substituting their view on the overall purpose of the act. So, what
is the purpose, and does the decision fit within this purpose?

1. Nature of the problem (Question of law or fact?): Generally, less deferential of


decisions which are questions of pure law. But even pure questions of law may
be granted wide degree of deference where other factors suggest that such
deference is in the legislative intent

HELD Board should be subjected to the correctness standard for the following
reasons:

(i) The key to the legislative intention as to the standard of review is the use of the
words a serious question of general importance; the general importance of the question,
that is, its applicability to numerous future cases, warrants judicial review by court; and
that review wouldnt serve any purpose if court could defer to incorrect decisions of the
Board.

(ii) No privative clause

(iii) Not a question necessarily w/in expertise of board. The court is just as qualified to
answer questions about human

rights law

Comment: The overall aim of the pragmatic and functional approach is to discern
legislative intent and ultimately determine the degree to which deference may be given

Dr. Q v College of Physicians and Surgeons (Even if right of appeal, court must still
apply pragmatic and functional analyis, even though an appeal provision will direct
strongly toward correctness standard):

FACTS: The inquiry committee of the appellants College found that the respondent
physician had taken physical and emotional advantage of one of his female patients and
was guilty of infamous conduct. In reaching its conclusion that sexual acts had occurred,
the committee stated that it accepted the patients evidence and disbelieved that of the
respondent. On an appeal under the Act the reviewing judge set aside the committees
decision disagreeing with the finding with respect to credibility. The CA dismissed the
Colleges appeal as it could not conclude that the reviewing judge had erred.

ANALYSIS:

- Right of Appeal: Opposite of privative clause; Even where appeal provision exists, the
need for a pragmatic and functional analysis is necessary. While an appeal provision
may direct strongly to a correctness standard, court still needs to go through the
assessment of the 4 factors.

- Review and update of the 4 contextual factors (remember, as court clearly states,
overall goal is to decipher legislative intent through these factors):

(1) Statutory scheme: A statute may afford a broad right of appeal to a superior court or
provide for a certified question to be posed to the reviewing court (suggesting a more
searching standard of review). Further, may contain a privative clause, the more
deference may be due.

(2) Relative expertise: Remember, relative concept; greater deference may be called for
only where decision making body is more expert than the courts and the question is one
that falls within the scope of the greater expertise. Three dimension analysis: (a) Court
must characterize the expertise of the tribunal in question; (b) consider its own expertise
relative to the tribunal; (c) identify the nature of the specific issue before the decision
maker relative to this expertise

(3) Purpose of statute: (a) A statutory purpose that requires a tribunal to select from a
range of remedial choices or administrative responses, is concerned with the protection of
the public, engages policy issues, or involves the balancing of multiple sets of interests or
considerations will demand greater deference. E.g. provisions which require decision
maker to have regard to all such circumstances as it considers relevant will generally
suggest policy-laden purposes;

(b) Courts should also consider the breadth, specialization and technical/scientific nature
of the issues that are being asked to consider;

(4) Nature of problem: Pure fact = deference; Pure law = less deference (particularly
where the decision will be one of great precedential value); Mixed fact and law = if fact
intensive, more deference and if law intensive, less deference

Comment: Court also notes difference b/w role of reviewing court and role of court of
appeal; When application for judicial review comes at first instance, then its purely
administrative law principles; when youre doing an appeal of the first instance
decision, its going to be an appellate standard (question of law/fact etc appellate
standard of correctness).

Chamberlain v Surrey School District:

Facts: School Board (the administrative decision maker) passed resolution banning books
which depicted same sex parenting. Parents were outraged based on their religious
beliefs. Resolution was challenged as being outside their mandate (note that the decision
was also challenged on constitutional grounds but court said b/c administrative law
principles are applicable, no need to go into that)

Issues/Points:

Majoritys Judgement

- First look at standard of review analysis:

1. Privative clause: No privative clause = less deference.


2. Expertise: Its an elected Board balancing multiple concerns (such searching for
bests interests of different groups with different moral outlooks) and human rights
aspects = some deference
3. Purpose of the legislation: Purpose was to allow for local input on choosing
supplementary classroom materials. As a result, Board was in best position to
know what types of families and children fall within its district and what materials
will best serve their needs. But, the School Acts requirement that the discretion
to approve supplementary material conform to norms of tolerance, respect for
diversity, mutual understanding and acceptance suggest little different is owed,
b/c courts must exercise a fairly high level of supervision over decisions involving
tolerance and diversity.
4. Nature of the problem: Accommodating community concerns and tolerance
less deference

- The 4 factors suggest a reasonableness simpliciter standard

HELD The Boards decision not to approve the proposed books depecting same sex
parented familes was unreasonable, b/c the Board failed to act in accordance w/ the
School Act.

Dissent (Gonthier and Bastarache JJ) They agree w/ the standard of review, and that
we get a standard reasonableness standard. They disagree on the application. They
thought the decision was reasonable.

Dissent (Lebel) Held that we are concerned with is whether its a legal decision or not,
given that it is an elected body who has political accountability. You wouldnt expect to
see privative clause, b/c they are separate from the Courts, so doesnt make sense of
speaking of the effect of a lack of one: The insulation of the judicial and political
spheres from each other does not only protect our independent judiciary from political
interference, it also protects political bodies from excessive interference by courts. It is
beyond the scope of legitimate judicial review to apply a reasonableness standard to the
actions of local policy making entities like municipalities or school boards. So,
judgment important for questioning level of deference for an elected decision maker.

Barrie Public Utilities v CCTA:

Facts: CCTA wanted to use Utilities power poles to transmit television. Utilities
disagreed, and CCTA appealed to the CRTC to grant order. It found that the relevant
statute granted it authority over the Utilities poles (since it found that the phrase the
supporting structure of a transmission line was broad enough to include the Utilities
power poles). On appeal, this authority was rejected.

Issues:

Majority judgment
- Standard of Review Analysis (on a correctness standard):

(1) Presence/absence of privative clause/statutory right of appeal: Presence of a statutory


right of appeal in this case suggests a more searching standard of review

(2) Relative expertise: (a) Remember that in determining the standard of review, the
focus is on the particular provision (i.e. its purpose) being invoked/interpreted by the
tribunal; In this case, the issue is the meaning of the phrase the supporting structure of a
transmission line. No technical meaning simply stat interpretation; (b) CRTCs
expertise lies in the regulation and supervision of Canadian broadcasting and
telecommunications in this case, its expertise is not required to answer this problem

(3) Purposes of the legislation and provision: No polycentric questions; its a question of
proper construction of provision

Dissenting judgment

Segmentation:

- There were two questions the majority dealt with: one is constitutional and the other is a
general question of CRTCs interpretation of s 43(5).

- Reasons for separating the questions (i.e. failure to separate frustrates the process of
judicial review in two ways): (1) combination may skew the standard of review for an
agencys decision (it will drive towards the correctness standard (by combining a straight
statutory interpretation question which falls under their jurisdiction to a constitutional
question outside their jurisdiction, they skew the review to a more invasive standard) (2)
where a constitutional question is raised, failure to isolate the constitutional question can
limit the agencys ability to give the legislation at issue the full import intended by
legislature

- Constitutional question: Issue raised was whether any interpretation of s 43(5) would
be ultra vires Parliament. The pragmatic and functional approach applies to this question,
like all matters of judicial review of admin tribunals; and it is settled that an application
of the P and F approach to a question of constitutional law yields a correctness standard.

- Standard of Review re: the Interpretation Issue: If the constitutional question which
arose within the Board is meritless, it should not serve to dictate the level of scrutiny by
the court reviewing the administrative decision.

1. Privative clauses and Statutory Right of Appeal: No privative clause plus right of
appeal suggests deference
2. Relative expertise: (a) The CRTC has specialized expertise and unlike Gonthier J
who suggested that all CRTC was doing was statutory interpretation, it appears
more like administration of that statute; (b) In terms of the courts expertise
relative to the CRTC, the CRTC will have greater expertise for technical and
policy related matters, including the determination of legal questions, associated
with the specialized enabling statutes; (c) The provision requiring interpretation
isnt merely a legal question, as it draws heavily on the CRTCs expertise; the
phrase The supporting structure of a transmission line is not a familiar one to
lawyers/judges it is a technical question best answered by the specialized
agency in whose enabling legislation it arises; the question isnt simply one of
statutory interpretation
3. Purpose of Act and the particular provision: Polycentric concerns
4. Nature of problem: Interpretation of s 43(5) is a question of law. But even pure
questions of law may lead to deference

Appropriate standard is reasonableness

Comment: By differently dividing how questions are asked, different outcomes can arise
on the standard of review analysis.

Toronto (City) v CUPE:

Facts: Person convicted of sexual assault, dismissed from employment, and reinstated by
labour arbitrator.

Issues/Points:

Lebel J

- In such a case as this one, where the question at issue is so clearly a question of law that
is both of central importance to the legal system as a whole and outside the adjudicators
specialized area of expertise, it is unnecessary to employ the pragmatic and functional
analysis in order to reach standard of review of correctness.

- More important concern relates to application of standards of review.

(i) Correctness standard of review: Should not subject all labour relations decisions to
correctness standard

- Even though this case gave rise to 2 standards of review to 2 different issues raised, this
does not mean that this approach should often be used.

- Further, there is a tendency to draw a strict correlation b/w general questions of law and
the correctness standard; in some cases, tribunals may be best placed to develop a body of
jurisprudence that is tailored to the specialized context in which they operate. There is a
place for the correctness standard, but it must be confined to matters clearly outside the
authority and competence of the admin decision makers.

(ii) Patent unreasonableness standard of review:


- Because courts have described various ways of arriving at a patently unreasonable
decision, the parameters of this standard are not clear.

- Interplay b/w patent unreasonableness and correctness: Is the search for patent
unreasonableness a search for legal error, or is it a more flexible inquiry into whether
there is a rational basis for the decision?

- Interplay between patent unreasonableness and reasonableness simpliciter in practice is


untenable: Both standards are rooted in the guiding principle that there are many
acceptable solutions. The two ways they have attempted to be distinguished is by using
the notion of relative magnitude of the defect and the immediacy or obviousness of
the defect. Each approach is unsatisfactory.

- The magnitude point of distinction is unsatisfactory b/c something is or is not rational


(there are no degrees). So, the idea of defects of a greater magnitude than simple
irrationality is incoherent.

- The obviousness of defect point is vague and unworkable; the somewhat probing
test is not clear, as the distinction b/w somewhat probing and those which are probing is a
fine one.

- Also, each of these ideas is inconsistent with the role of judges in upholding the rule of
law (the idea of letting unreasonable or irrational decisions stand, whether because they
are not irrational enough, or because they require some work to discover, is in conflict
both with the principle of parliamentary supremacy and rule of law.

- Also, if we start with whether they are right or wrong, weve turned judicial on its
head. We start with whether there are reasons to support. So from this perspective, cant
have 2 standards: its either we have reasons to support, or there are not (we cannot say
that we dont have adequate reasons and continue the analysis, as that would offend the
rule of law)

Comment (Summary of Lebel J): The dual thesis of Lebel Js critique is that the
modern jurisprudence on the standards of review exhibits conceptual confusion and
inspires deep methodological uncertainty, which results in an intolerable unpredictability
as to which standard will be deemed appropriate in a given case. We want to get squarely
at the inquiry into legislative intent against the backdrop of the courts constitutional duty
to protect the rule of law.

Comment (Segmentation): Clear statement that we have different standards of


review. The majority held that they must be correct on the general law issue (i.e. res
judicata; whether the arbitrator is bound by the criminal conviction); and the patent
unreasonable standard applies to the issue as to whether the worker should be
reinstated. Lebel J noted that while this may be a case where segmentation is the proper
approach, there is a caution that segmentation will generally not be employed. In this
case, there were 2 very separate issues.
Levis (City) v Fraternite des Policiers de Levis Inc:

Facts: Police officer engaged in criminal conduct and question was whether he should be
sanctioned by the law governing police or by municipal law. Both Acts say different
things about what should happen with the police officers employment; one says he should
be fired, and the other says no. The grievance arbitrator held that the Police Act rendered
the municipal Act inapplicable.

Bastarache J (Marority)

Compatibility of the Acts Analysis:

- The pragmatic and functional approach may lead to different standards of review for
separate findings. This will most frequently be the case when an arbitrator is called upon
to construe legislation. Reviewing courts must be careful not to subsume distinct
questions into one broad standard of review. Multiple standards of review should be
adopted when there are clearly defined questions that engage different concerns under the
pragmatic and functional approach.

- In this case, the arbitrators interpretation of the legislation may be reviewable on a


different standard than the rest of the decision. The two statues in this case give rise to
separate concerns as to whether the arbitrator properly interpreted and applied the Police
Act

- For both Acts, the nature of the question and relative expertise suggest searching
review is necessary. Whether the Acts are in conflict is a pure finding of law. Further,
this determination has important precedent value.

- On balance, standard of correctness applies.

- Another comment on segmentation; the legislatures/parties didnt intend for this to be


in arbitrators jurisdiction, and therefore question of which legislation applies isnt part of
their core function, and therefore we should be revisiting it on a correctness
standard. [But if we have a clear statement that legislatures allow grievance to deal with
the issues in a final and prompt manner, does segmentation destroy this intention?]

Interpretation and Application of Police Act analysis:

- The question of whether the arbitrator correctly interpreted the Police Act was a
question of mixed fact and law.

- Also, arbitrator had to decide what sanction was appropriate (which is in line with
traditional function of grievance arbitrator);

- It is a decision that requires the balancing of competing interests (polycentric)


- But other factors point to less deference: there is a significant legal component

- Taking these factors into account suggests something less than the most deferential
standard of review (reasonableness)

Abella J (Dissent)

- Disagrees on the point that different standard should have been applied

- There is a danger of segmentation leads to an unduly interventionist


approach. Segmentation invites parties to frame the question in much the same way the
majority did here. The effect of segmentation is that if there is a problem at the root, then
entire decision flawed; this begins to look like a preliminary or collateral matter.

- Legal issues ought not be declared as separate when they are intertwined with the
decision makers expertise. In such circumstances, the decision ought to be reviewed as a
whole. This integrated approach is reinforced by the idea that not every element of the
reasoning must independently pass a test for reasonableness (as there are more than one
way in which the decision may be reasonable).

Council of Canadians with Disabilities v VIA Rail Canada:

Facts: VIA Rail was outfitting its trains in order to meet wheel chair accessibility
requirements. The Canadian Transportation Agency was responsible for determining
whether there was an undue obstacle to the mobility of persons with disabilities. Where
such obstacles are found to exist, the Agency is responsible for determining corrective
measures. Contrary to Agencys directions, VIA made modifications to its new cars, and
would not provide cost estimates to the Agency. The Agency ultimately ordered that 30
of its trains be altered.

Majority

Segmentation:

- A way to attack the invasive way of a deciding is to question whether it has the effect of
removing things away from admin which they have expertise. In this case, segmentation
has an effect of undermining admin bodys expertise

- Thus, Court adopted a non-segmentation approach in this case

Standard of Review:

- At the Federal Court level, it was held that the Agencys interpretation of VIAs
jurisdiction under s 172 was addressing human rights and therefore was owed less
deference (and reviewable on standard of correctness)
- The Court also concluded that the standard for reviewing the Agencys decision on the
issue of whether the obstacle is undue is patent unreasonableness. This approach was
correct, the former was not.

- Unravelling the essence of the decision undermines the characteristic of the Agency
which entitles it to highest level of deference its specialized expertise.

- s 172 is an example of a provision which reflects a clearly worded decision by


legislature to use an open ended grant of power that has the effect of narrowing the ambit
of jurisdictional review

Dissent

Segmentation:

- Minority defends segmentation. Subjecting all aspects to a single standard of review


doesnt allow for a diverse standard of review. Asking for greater flexibility; need to
zero in on specific proportions of decision. If we look at decision as whole, wont be
able to tailor it in that way.

Standard of Review:

- Consideration of all the factors points to no deference accorded to Agencys decision

- The Agencys jurisdiction and determination of human rights principles are questions of
pure law. Because these exact issues havent been determined before, result will have
important precedential value

- No privative clause in respect of the questions of law/jurisdiction; rather, there is a


statutory appeal procedure

- On questions of jurisdiction and human rights law principles, Agency doesnt have
greater expertise than court

- Purpose of s 172 is to grant Agency an adjudicative role to consider application from


persons with disabilities; issues generally involve a dispute b/w aggrieved party and
transportation carrier. While ultimate analysis involves balancing of interests, the
questions of the Agencys jurisdiction and determination of applicable human rights law
do not

- On balance, the questions of the Agencys jurisdiction and determination of applicable


human rights principles are to be reviewed on standard of correctness

DUNSMUIR DECISION:

THE NEW STANDARD OF REVIEW ANALYSIS


1. Have previous cases already determined degree of deference for this category of
question? Look at previous cases. In every case, we are not starting a new. Look
at previous categories that establish degree of deference

1. If not (e.g. its difficult to make analogies) then analyse the factors to determine
the standard of review (standard of review analysis) (note that this need not be a
mechanical analysis in which each of the factors necessarily has to be
considered):

1. Presence/absence of Privative clause

Not determinative, but depending on completeness, suggests reasonableness (a


full privative clause is one that declares that decisions of the tribunal are final and
conclusive from which no appeal lies and all forms of judicial review are
excluded)
No privative clause is consistent with less deference (but this is only one factor,
and it does not imply a high degree of scrutiny, where other factors indicate
greater deference)

1. Purpose of tribunal as determined by interpretation of enabling legislation:

A discrete and special administrative regime in which the decision maker has
special expertise suggests reasonableness
Polycentricity is relevant, namely a large number of interlocking and interacting
interests
Provisions which require decision maker to have regard to all such
circumstances as it considers relevant will generally suggest policy-laden
purposes;
E.g. in Dunsmuir, tribunal was meant to resolve dispute in a timely and cost
effective method of resolving employment disputes, which suggests
reasonableness standard
E.g. in Southam, aims of the Act are more economic than strictly legal, and some
of its concepts are matters which business woman and men/economists are better
able to understand than a judge which suggested deference
E.g. in Dr Q, court noted that on the one hand, the legislatures intent for the
legislation as a whole was to assign the College the role of balancing competing
interests and multiple policy objectives, like the protection of the public,
education, qualification of members. This suggests deference. But, the discrete
issue of adjudicating a claim of professional misconduct the particular issue that
the statute puts before the Committee is quasi judicial and militates against
deference. Thus, this goes neither in favour or against deference
E.g. in Barrie Utilities, majority noted that much of the CRTCs work involves the
elaboration and implementation of telecommunications policy, but the policy
objectives of the Act were less in evidence in the provision under question than
elsewhere in the Act it is not a polycentric question. It is a question of
whether the section, properly construed, gives the CRTC jurisdiction to hear the
parties dispute (pointing to less deference)

1. Nature of question

If factual/policy driven, then reasonableness suggested


If legal and factual issues cannot be readily separated, then reasonableness
suggested
If interpreting questions of law in own statute, then reasonableness suggested,
Constitutional questions (e.g. Either, do they have provincial or federal
jurisdiction and whether they stayed within given jurisdiction, OR s 96 courts
question, whether they have been given authority that can properly be delegated)
suggests correctness
True questions of jurisdiction (e.g. where the tribunal must explicitly determine
whether the statutory grant of power grants them authority to decide the matter in
question) suggests correctness
Questions of general law (e.g. interpretation of statute outside their home statute,
or whether they are bound by the finding of fact that a sexual assault happened)
suggests correctness
E.g. in Barrie Public Utilities, interpretation of a phrase of an act, namely the
supporting structure of a transmission line was held to be a matter for which no
deference was to be owed, as it was a pure legal question ultimately for the
province of the judiciary (the minority disagreed on this point)
E.g. in Dr Q, finding of credibility was determined to be a question of fact, and so
deference was to be owed
[One more]

1. Expertise of tribunal relative to court:

Greater deference may be called for only where decision making body is more
expert than the courts and the question is one that falls within the scope of the
greater expertise. Three dimension analysis: (a) Court must characterize the
expertise of the tribunal in question; (b) consider its own expertise relative to the
tribunal; (c) identify the nature of the specific issue before the decision maker
relative to this expertise
[One more]

1. Remedy (assuming the decision is challenged successfully):


o

Depends whether challenge is on appeal or JR (different
remedies)
Where Board failed to act in accordance with its enabling
statute, the question of whether the books should be
approved was remanded to the Board to be considered
according to the criteria laid out in its regulation, the
curriculum guidelines and the principles of tolerance
underlying the School Act (Chamberlain)

Dunsmuir v New Brunswick (Summary):

Facts: D employed by Department of Justice. Placed on probationary term and


subsequently his employment was terminated due to several incidents which arose. D
filed a grievance with respect to his discharge, citing that the reasons for the employers
dissatisfaction were not made known; that he did not receive a reasonable opportunity to
respond to the employers concerns; that the employers actions were w/out
notice/procedural fairness; and the length of the notice period was inadequate. The
grievance was denied. D then referred the grievance to adjudication under the
PSLRA. The adjudicator ultimately declared that the termination was void ab initio.

Bastarache, Lebel J (Majority)

(1) Judicial Review:

- The process of judicial review involves two steps: (i) Ascertain whether the
jurisprudence has already determined in a satisfactory manner the degree of deference to
be accorded with regard to a particular category of question; (ii) Where this is not the
case, must analyse the 4 main factors to see which of the standards of review apply (see
below)

(2) Two Standards of Review:

- The two variants of reasonableness review should be collapsed into a single form of
reasonableness review; this collapsing of the 2 standards ought not result in having less
deference overall (we are not simply adopting the lower standard of reasonableness)

(a) Reasonableness:

- The reasonableness standard is underpinned by principle that there may be more


than one reasonable conclusion. Assessing reasonableness takes into account
both the process of reasoning (existence of justification, transparency and intelligibility
within the decision making process) and the outcomes (whether decision falls within the
range of possible outcomes) [Note: this modifies the approach Abella J taks in VIA Rail,
under which the conclusion isnt the important part]

- Types of questions where reasonableness is generally presumed as the standard: (i)


Questions of fact and policy; (ii) When legal and factual issues cannot be readily
separated; (iii) Where tribunal is interpreting own statute; (iv) Where tribunal has
developed particular expertise in the application of general law or civil law (e.g labour
law
(b) Correctness:

- The correctness standard, when applied, means that a reviewing court will not show
deference to the decision makers reasoning process; it will rather undertake its own
analysis of the question. If the court doest not agree with the decision maker, the court
will substitute its own view and provide the correct answer.

- Types of issues which give rise to correctness standard: (i) Constitutional questions
first, regarding division of powers (i.e. do they have provincial or federal jurisdiction and
whether they stay within that jurisdiction); second, s 96 courts and the types of authority
that can be delegated (legislatures can decide and give authority to decision makers, but
there is a constitutional limit); (ii) Competing specialized tribunals (true questions of
jurisdiction) e.g. if you have a human rights tribunal who has jurisdiction over some
issue and an arbitrator also has jurisdiction and the former makes a finding they have
jurisdiction in that area we have a grey area where there can be overlap admin
decision maker can make a decision but have to be correct; true jurisdiction questions
arise where the tribunal must explicitly determine whether the statutory grant of power
grants them authority to decide the matter in question (interpretation the grant of their
jurisdiction); (iii) Questions of general law e.g. res judicata issue of whether they are
bound by a criminal conviction, binding them to a finding of fact that a sexual assault
happened; or, interpretation of statute outside their home statute.

(c) Standard of review analysis (no longer to be called the pragmatic and functional
analysis):

(a) Privative clause: Strong statutory direction from Parliament indicating need for
deference and thus indication of review pursuant to standard of reasonableness; but it is
not determinative. *The rule of law requires the constitutional role of courts be preserved
and neither Parliament nor any legislature can completely remove courts power to
review actions and decisions of admin bodies (the power is constitutionally protected)

(d) Purpose of Tribunal as Determined by Interpretation of Enabling Legislation

(c) Nature of Problem at Issue: Where its one of fact, discretion or policy, deference
will normally apply automatically (same where legal and factual questions are
intertwined and cannot be separated). A question of law that does not rise to the level of
having central importance to the legal system may be compatible with a reasonableness
standard. Where there is a jurisdiction issue (i.e. question of whether the tribunals
statutory grant of power gives it authority to decide a particular issue) will lend itself to a
correctness standard.

(d) Expertise: A discrete and special administrative regime which has special expertise
(e.g. labour relations) leads to reasonableness standard.

- In this case, a reasonableness standard arises (full privative clause; labour decision =
expertise etc). The decision itself, however, cannot be said to be reasonable on any
interpretation of the Act, as the adjudicator failed to take into account the explicit
contractual terms which allowed for dismissal without stating cause.

Binnie J (Concurring):

- Problem court is trying to address is that the 2 reasonableness standards are not
predictable; cant tell when they will be applied, and this forces parties to do a lot of
arguing before getting into the real issues. A practical concern is access to justice, given
the costs involved.

- There are three basic limits on the allocation of administrative discretion: (1) The
Constitution restricts the legislators ability to allocate issues to admin bodies which s 96
has allocated to courts; (2) Admin action must be founded on statutory or common law
powers; (3) Procedural limits are placed on admin bodies by statute and common law

- Implications of having 2 standards of review: (i) The existence of a privative clause,


while not conclusive, presumptively forecloses judicial review on the basis of outcome
unless the applicant can show that the clause, properly interpreted, permits it or there is
some legal reason why it cannot be give effect; (ii) Further, another presumption should
be that the standard of review of any admin outcome on grounds of substance is not
correctness but reasonableness; the fact that the legislature designated someone other
than the court as the decision maker calls for deference (absent a broad statutory right of
appeal); the onus is on the applicant to show otherwise; (iii) An applicant urging for the
correctness standard should be required to demonstrate that the decision rests on an error
in the determination of a legal issue not confided to the admin decision maker to decide
(whether in relation to jurisdiction or general law)

- Scope of the reasonableness standard: Incorporates both the degree of deference


formerly reflected in the distinction between patent unreasonableness and reasonableness
simpliciter, and an assessment of the range of options reasonable open to the decision
maker in the circumstances, in light of the reasons given for the decision

- Judging reasonableness: Reasonableness must be judged according to context;


important to look at terms and objectives of governing statute, because in some cases, a
range of permissible decisions may arise. But court can take into account as many
contextual factors as it considers relevant and material.

Deschamps J (Dissent):

- The 4 factors which have become synonymous with substantive review need not all be
considered in every case

- When an issue is limited to questions of fact, there is no need to enquire into any other
factor in order to determine that deference is owed. Questions of law, by contrast, require
more thorough scrutiny when deference is evaluated (a decision of law may attract
deference where it concerns the interpretation of the enabling statue and provided there is
no right of review). For questions of mixed fact and law, the same deference is owed to
admin body as a court of appeal owes a lower court

- Where there is a privative clause, Parliaments intent to leave the final decision to that
body cannot be doubted and deference is usually owed to the body. But privative clauses
cannot totally shield an administrative body from review (e.g. if it is asked to interpret
laws of which it does not have expertise, then constitutional responsibility of superior
courts as guardians of rule of law compels them to insure the laws falling outside and
admin bodys core expertise are interpreted correctly)

- So, main focus is on nature of question.

Comment: An overview of the case suggests that the role of the court in judicial review
is this: If admin tribunals decision is within a range of reasonable outcomes among
which admin decision maker can choose, then court should not interfere. If they make
decisions outside statutory authority, or if legislation purports to confer jurisdiction is
unconstitutional, or if deeply flawed reasoning process leads to unreasonable result, then
thats where Courts engage in judicial review.

THE CHARTER AND JUDICIAL REVIEW

[Exam: s 15 = inequality will be the claim of the 3rd parties]

These cases help demonstrate the intersection b/w constitutional law and judicial review
of the substance of a decision; also, they help understand how to identify when a
standard of review analysis is needed, and when it isnt. Unless one can use the
Charter, one is stuck with judicial review. And one should not go to the Charter if
administrative law can solve the problem.

There is a link between discretion and Charter infringements. There can be exercises of
discretion by decision makers that result in infringement of Charter (therefore, this is still
an examination of discretionary decision making, but a very specific aspect of it). So, if
we are dealing with a tribunals decision, rather than the statute itself, it will be because
the legislation allows for a range of outcomes, one of which may result in a Charter
violation.

Summary of Charter Intersection with Admin Law

1.
o If the question is whether the decision is one the agency had authority or
jurisdiction to make under the legislation, then administrative law applies
and go to Standard of review analysis
o If the question is whether the order or act of tribunal is a valid exercise of
state power under the Charter, then this is about constitutionality of the
decision and admin law standard does not apply (Multani, Whatcott)
o If the reviewing court is asked to review the admin tribunals application
and interpretation of constitution, then reviewing court will look at
whether the tribunal had the jurisdiction had to decide a constitutional
challenge, and if so, the tribunals decision must be correct (Martin)
o My summary: In Multani, the decision couldnt be challenged under
admin law because it was within the DMs discretion as set out in the act
to make the decision. Because that decision offended a Charter right,
however, it was reviewable under a Charter analysis. If the decision can
be challenged under admin law, then the Charter should not be used; so
first ask whether the decision is one the agency had
authority/jurisdiction to make:
1. When it is the compliance of the DMs decision with
requirements of the Charter at issue, rather than the decisions
validity from the point of admin law, then you go to Charter
2. In Multani, there is no suggestion that the council did not have
jurisdiction from an administrative law standpoint to approve the
Code of conduct
3. Nor is the administrative and constitutional validity of the RULE
against carrying weapons in issue.
4. It is the fundamental effect of the decision, as noted in Whatcott,
that infringes the Charter right

Slaight Communications v Davidson:

FACTS: First time Supreme Court of Canada met intersection of administrative law and
charter. Administrator decision maker found employee had been dismissed
unfairly. Remedy crafted was that Slaight was forbidden from making any negative
comments about Ds work performance to possible future employers. Slaight challenged
decision as being unconstitutional, saying it infringed its freedom of expression
guaranteed under s 2(b)

ISSUE: Was this to be evaluated under administrative law principles, or charter free
expression principles?

HELD Order infringed freedom of expression but was rationally connected to


purpose of legislation (remedying inequality of bargaining powers b/w employees and
employers. This is the basis of the orthodox approach (focusing on the 2 step Charter
analysis).

Multani v Commission Scolaire Marguerite-Bourgeoys (Where it is the constitutional


validity of an admin decision or order that is at issue, the constitutional analysis must
be conducted):

FACTS: Ms religious beliefs requires him to wear a kirpan at all times. His schools
governing board held that wearing a kirpan violated s 5 of the schools Code of
conduct. There was no suggestion that the commissioners did not have jurisdiction to
approve the Code of conduct, from an administrative law standpoint. Superior Court
ordered that the decision originally made that the kirpan be sewn up in clothing be in
effect until a final decision was rendered. This order was subsequently overturned, and
now M appeals.

Majority Judgment:

- Deal with issue in constitutional law standards, not administrative: Judicial review
may involve a constitutional law and administrative law component. In this case, it is the
compliance of the commissioners decision w/ requirements of Charter that is central, not
the validity from point of admin law. The complaint is entirely based on constitutional
freedom; the CoA erred in applying the reasonableness standard to its constitutional
analysis. There is no suggestion that the commissioners did not have jurisdiction, from
an administrative law standpoint to approve the Code of conduct, nor is the
administrative and constitutional validity of the rule against carrying weapons and
dangerous objects at issue. The appellant argued that it was in applying the rule (i.e.
categorically denying M to wear the tirpan) that the council of commissioners upholding
the original decision infringed Ms freedom of religion. Must address s 1 analysis,
regardless of whether what is in issue is the wording of the statute itself or its application.

- If this appeal had instead concerned the review of an admin decision based on the
application and interpretation of the Charter, it would have been necessary to apply the
correctness standard.

- It is the constitutional validity of the decision that is at issue in this appeal, which means
that a constitutional analysis must be conducted

- Infringement of Charter right: Commissioners decision prohibiting M from wearing


kirpan infringes his freedom of religion, and therefore must be justified under s 1, which
it cannot (the decision effectively prevented M from attending school because of their
religious beliefs)

Concurring Judgment (Deschamps and Abella JJ):

- Admin law or Constitutional law: Case is more appropriately decided by recourse to


admin law than constitutional law justification for two main reasons:

(1) The purpose of the constitutional justification is to assess a norm of general


application, such as a statute,

and the analytical approach for that is not easily transportable where what must be
assessed is the validity of

an admin bodys decision;


(2) Basing analysis on admin law averts the problems resulting from blurring principles
of consti justification and

admin law

- Standard of Review: Court must determine the standard of deference to be applied to


the school boards decision, which had an impact on freedom of religion, right of equality
and right to physical inviolability (taking approach in TWU and
Chamberlain). Reasonableness standard applies. The prohibition on wearing of a kirpan
cannot be imposed w/out considering the conditions that would interfere less with
freedom of religion. The school board did not sufficiently consider either the right to
freedom of religion or the accommodation measure proposed by the father and student; it
applied the Code of conduct literally; decision was unreasonable.

- Inappropriateness of Constitutional Law Justification: The administrative law approach


must be retained for reviewing decisions and orders made by admin bodies. A
constitutional analysis must be carried out when reviewing the validity of enforceability
of a norm such as a law.

(a) Review of Lamer Js approach in Slaight: Idea that norms of general application
should be dealt with in the same way as decisions or orders of admin bodies as suggested
by Lamer may be theoretically attractive, but there is no advantage of adopting it.

(b) Meaning of Law in s 1: An admin body determines an individuals rights in


relation to an issue; a decision or order is not a law or regulation, but the result of a
process provided for by statute and by principles of admin law. The expression of law
should not include the decisions of admin bodies

(c) Analytical Consistency: The mechanisms of admin law are flexible enough to make it
unnecessary to resort to the justification process under s 1 when a complaint is not
attempting to strike down a rule of general application. The standard of review is one of
the tools that has already been developed that can deal with issues of a decision or order.

COMMENT: The idea of an admin decision maker makes a decision that is an


interpretation of the Charter, that decision, if appealed, will come within admin law under
correctness. But when youre looking at an act that is not challenged within that sphere,
but instead that THIS admin action offends my Charter right, you start with s 1 analysis.

Whatcott v Saskatchewan Assn of Licensed Practical Nurses (Application of Multani


decision):

FACTS: Finding of professional misconduct made (within meaning of s 24 of Act) by a


professional nursing body against one of its members for words expressed in opposition
to the activities of a planned parenthood organization. The Discipline c/ee did not
address the issues raised before it in relation to the Charter that any discipline would
infringe his freedom of religion.
ISSUES:

- What is the appropriate review model: In light of Multani, two matters are clear:

(1) An administrative tribunals decision can be challenged on the basis that the decision
itself has infringed the

Charter rights;

(2) The issues and arguments raised in relation to the decision must be considered to
determine which standard

of review model is to be applied

- Application: This case is like Multani. It is the compliance of the Discipline c/ees
decision with the requirements of the Charter that is central to the within appeal. The
fundamental effect of the decision was to preclude Mr W from both picketing in the
manner he chose and working as a nurse until he pays the fine. He was denied the ability
both to express himself in the way he has chosen and to work. Thus, its necessary to
leave aside the administrative standard of review and consider whether the decision
infringes freedom of expression

- Should the Decision be Remitted back to the Discipline C/ee to Consider Charter
arguments (Because the C/ee didnt Address them)?: Court held it should not be remitted
back.

- Does the Decision infringe Ws Freedom of Expression (on a standard of correctness):


Clear that only purpose and effect of decision is to curtail his communication

- Section 1 Analysis: When decision falls within Charter context (i.e. the effect of the
decision is on a Constitutional guarantee), onus is on the SALPN to prove the
infringement is reasonable and can be demonstrably justified in a free and democratic
society; they failed to discharge that onus and the decision is therefore unconstitutional

- Remedy Pursuant to s 24(1): Decision must be set aside, but s 24(1) also allows for
court to issue such remedy as it considers appropriate and just in the circumstances; W
relies on s 24(1) to request that costs be awarded on an extraordinary basis; Court
declined this.

To what extent can administrative tribunals themselves, rather than courts reviewing
admin tribunals decisions, consider the Charter? Section 24 of the Charter refers to a
court of competent jurisdiction as being able to provide remedies. The SCC examines
an administrative actors competence to apply the Charter in the following case:
Nova Scotia (Workers Compensation Board) v Martin (Test for whether admin tribunal
can decline to apply a provision of its enabling statute on the ground that the provision
violates the Charter):

FACTS: The Nova Scotias Workers Compensation Act and its regulations excluded
chronic pain sufferers from receiving benefits under the regular workers compensation
system and provided, in lieu of benefits usually available to injured workers, a 4 week
functional restoration program beyond which no further benefits were available. As a
result of the statutory exclusion, the Workers Compensation Board denied benefits to
two workers suffering chronic pain. Workers appealed, alleging infringement of s
15(1) by denying them equality under the law and discriminating against them on
the basis of their disabilities. The Appeals Tribunal held it had jurisdiction to hear
the Charter argument and concluded that the statutory exclusion violated
Charter. The Board challenged Tribunals jurisdiction.

ISSUE: Did the section of the WCB Act preventing benefits for chronic pain sufferers
violate s 15 of the Charter? Could the Appeals Tribunal decide the constitutional validity
of a provision of a provision of an enabling statute?

Framework for Determining whether a Tribunal can Interpret the Charter:

(1) First question is whether the tribunal at issue has jurisdiction, explicit or implicit,
to decide ANY questions of law arising under the challenged provision. If it does,
then the tribunal will be PRESUMED to have the concomitant jurisdiction to
interpret/decide that question in light of Charter

(2) Explicit jurisdiction must be found in the terms of the statutory authority granted
(e.g. power to determine all questions of fact or law that arise in any matter before
it). Where express, no need to go beyond language of statute.

(3) Absent express grant, it is necessary to consider whether the tribunal has implied
jurisdiction by looking at the statute as a whole. Relevant factors to consider include:

(a) The statutory mandate and whether deciding questions of law is necessary to fulfilling
its mandate effectively;

(b) Interaction of the tribunal in question with other elements of the administrative
system (e.g. does the tribunals

implied jurisdiction extend beyond the Act itself, to other questions of statutory
interpretation/common law raised in

the course of dispute e.g. can the tribunal interpret questions including the law of
contracts, evidence,

employment, etc);
(c) Whether the tribunal is adjudicative and therefore more capable of deciding Charter
issues; and

(d) Practical considerations, including the tribunals capacity to consider questions of law
(consider workload,

expertise of tribunal, whether tribunal members are lawyers, will they be able to
recognize a Charter claim; BUT

court cautions that practical considerations about capacity shouldnt be used to override a
clear implication of

jurisdiction of questions of law while they may be helpful to confirm legislatures


intent, they are of little weight on

their own to confer upon admin body power to consider and decide questions of law)

(4) If either express or implied authority, presumption is set. Once presumption has
been raised, the next question is wether presumption has been rebutted. Burden is on
the party who alleges that the admin body lacks jurisdiction to apply the
Charter. Presumption may only be rebutted by an explicit withdrawal of authority
to decide constitutional questions or by clear implication to the same effect, arising
from the statute itself rather than from external considerations; question to be asked is
whether an examination of the statutory provisions clearly leads to the conclusion
that the legislature intended to exclude the Charter from the scope of the questions
of law to be addressed by the tribunal (e.g. an express conferral of jurisdiction to
another admin body to consider Charter issues or certain complex questions of law
deemed too difficult or time consuming for the initial decision maker, along with
procedure allowing such issues to be efficiently redirected to such body, could give rise
to a clear implication that the initial decision maker was not intended to decide
constitutional questions) [Note: If presumption exists, practical considerations cannot
override a clear implication from the statute itself]

Application in This Case:

(1) + (2) The Act clearly confers explicit jurisdiction to decide questions of law. Court
went into analysing factors for implicit conferral of jurisdiction, b/c thats where parties
arguments were (but court didnt have to) (provision stated that subject to the rights of
appeal provided in Act, the Board has exclusive jurisdiction to inquire into, hear and
determine all questions of law and fact)

(3)

(a) The power to decide questions of law is necessary for Appeals Tribunal effectively to
fulfil its mandate, b/c any conclusion to the contrary would contradict legislatures intent
to create a scheme for resolving workers compensation disputes
(b) The Appeals Tribunals jurisdiction extends beyond the Act itself, to other questions
of statutory interpretation arising from the operation of the workers compensation
scheme;

(c) Appeals Tribunal is fully adjudicative; its independent of the Board, it has powers to
summons witnesses, compel testimony, require production of documents, punish persons
for contempt; all the appeal commissions have been admitted to the bar

(d) CoA was wrong to take into account the backlog of cases that accumulated at the
Appeals Tribunal prior to 1999 amendments. Practical considerations of this nature are
of little force with clear legislative intent. On balance, jurisdiction conferred.

(4) Respondents argue for the rebuttal of this jurisdiction. They argue that the authority
conferred upon the Chair of the Board to direct certain issues from the Appeals Tribunal
to the Board of Directors is incompatible with the idea that Appeals Tribunals was itself
intended by the legislature to decide Charter questions; i.e., legislature cannot have
intended that Charter issues be postponed to a policy-making executive body with no
special expertise/powers. But this misunderstands the procedure. Board of Directors is
not entitled to take over an appeal raising a Charter issue and decide it itself; at most, they
can adjourn the procedure to adopt a policy that better responds to the general issues
raised. Therefore, nothing in the act produces the kind of clear implication capable of
rebutting the presumption.

Reasons Why Tribunal can Determine Constitutional Validity

1. Most importantly, s 52(1) of the Constitution Act states that the supreme law of
Canada, and any law that is inconsistent with the provisions of the Constitution is,
to the extent of the inconsistency, of no force or effect, If a law is
constitutionally invalid, it ts invalid ab initio. So, invalid provisions dont
need court declaring it, because they are of no force and effect; thus, it is not
proper courts, or admin tribunals alike, to be applying invalid laws. Obviously,
every government official cannot be required to decide for herself the
constitutional validity of every provision called upon to apply. However, if she is
endowed wit the power to consider questions of law relating to a provision, that
power will normally extend to assessing the constitutional validity of that
provision, b/c the consistency of a provision with the Constitution is a question of
law arising under that provision.
2. Concern of double litigation: Canadians should be entitled to assert the rights and
freedoms that the Constitution guarantees them in the most accessible forum
available. In many cases, individuals have to go to admin tribunals (e.g. labour
boards) first, given their exclusive initial jurisdiction over disputes relating to
their enabling legislation; if tribunals dont have jurisdiction to apply the
constitution, then forcing them to refer Charter issues to courts would result in
costly and time consuming proceedings.
3. Admin tribunals as good fact finders: Charter disputes require a thorough
understanding of the objectives of the legislative scheme being challenged, as
well as the practical constraints its faces and the consequences of proposed
constitutional remedies. This need is heightened when it becomes necessary to
determine whether a prima facie violation of a Charter right is justified under s
1. Factual findings and record compiled by an administrative tribunal, as well as
its expert view of the various issues raised by a constitutional challenge, will often
be invaluable to a reviewing court
4. Not usurping s 96 courts powers: Tribunal making decision of constitutional
validity will still be reviewed by courts and therefore will not be usurping s 96
power of courts. Doesnt interfere with role of judiciary as the arbiter of the
constitution
5. The effect of a tribunal making constitutional finding of whether a provision is
valid/invalid: Will not apply outside admin scheme, and inside admin scheme,
does not have weight in the same way a courts decision would

-----

Comment: Section 24(1) of the Charter (Remedies Provision) and Admin Tribunals

- s 24(1): Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such remedy
as the court considered appropriate and just in the circumstances

- Is an admin tribunal a court of competent jurisdiction? I

- Weber v Ontario Hydro: Look at the statute/intention of the legislature in determining


whether tribunal is a court of competent jurisdiction. Test is: Provided they have
jurisdiction over the parties, the subject matter of the dispute and are empowered to make
the orders sought, then can give Charter remedies under s 24(1).

The practical import of fitting Charter remedies in tribunals is that litigants have direct
access to charter remedies in the tribunal charged with deciding their case (you dont
need to first get determination, and then go to courts). Not all tribunals have that ability
to give a remedy under s 24(1). So, jurisdiction must be over parties, subject matter
and remedies

This same test doesnt apply to s 96/superior courts, as they possess inherent jurisdiction

Comment: Legislative Responses to Martin

- E.g BC Administrative Tribunals Act (applies to most tribunals in BC): Tribunal


without jurisdiction over constitutional questions; s 44(1) The tribunal does not have
jurisdiction over constitutional questions; (2) Subsection (1) applies to all applications
made before, on or after the date that the subsection applies to a tribunal; s 45(1): The
tribunal does not have jurisdiction over constitutional questions relating to the Charter

- Charter issues would be referred to Superior Courts as a stated case


- Concern that lay persons coming in front of tribunals would be forced to hire lawyers
in order to advance/defend constitutional allegations, and that would increase costs, and
take away efficiency and accessibility; also, the determination is not precedent setting,
and therefore each time it will have to be re-litigated

- This is consistent with Martin, b/c we are looking at legislative intent

THE USE AND MISUSE OF DISCRETION

[Exam: say that this is a grey area, and give 2 sides, then conclude with one]

What is discretion? The concept of discretion refers to decisions where the law does not
dictate a specific outcome, or where the decision maker is given a choice of options
within a statutorily imposed set of boundaries (Baker v Canada).

Dicey and the Rule of Law: The rule of law means the absolute supremacy or
predominance of regular law as opposed to the influence of arbitrary power, and the rule
of law excuses existence of arbitrariness or even wide discretionary authority. Major
concern is wherever there is discretion, there is room for arbitrariness. He thought that
why we have law is to control arbitrary use of state power. Without supervision of
courts, power of state will be brought down on individuals in an arbitrary or unfair way.

But discretion hasnt been always seen as intrinsically unfair. Given the extent of
regulation and state exercise of power, Diceys version isnt really plausible.

How can Discretion in Administrative Powers be Justified?

1. Legislatures cant foresee each individual circumstances cant develop a


comprehensive set of rules that apply in all circumstances, so we need to have that
area in which the decision maker can tailor broad principles to those individual
circumstances.
2. Our legislatures neither have the time, resources or expertise to develop those
norms in certain areas (e.g. nuclear waste management, immigration); knowledge
of individual circumstances in specific countries, for example, isnt within the
expertise of your legislatures. They depend on other people, and grant that
discretion to people who have that expertise
3. Allows increased flexibility. Some times decisions need to be made quickly

Roncarelli v Duplessis (There are implied limits on how discretion may be exercised,
including that it must be exercised for legitimate purposes, which derive from statute):

FACTS: R owned a high class restaurant. R used his profits from restaurant to post bail
for arrested Jehovahs Witnesses who were illegally distributing pamphlets. This agitated
Premier Duplessis. He instructed liquor Commission to remove Rs liquor license
because he thought the money being used pursuant to the liquor licence was contrary to
the interests of Quebec. The Act governing the Commission said may cancel any permit
at its discretion.

HELD Majority gave judgment to R in light of 2 findings: First, even though the
licence had been formally cancelled by the Quebec Liquor Commission, the latter had
acted on Duplessiss orders. Second, the authorities had been motivated by a desire to
curb what they perceived to be seditious activities of the Jehovahs Witnesses and to
punish R. Duplessis lacked legal basis for acting and so did the commission,
notwithstanding the wording of the relevant statutory provision, which stipulated
that the commission could cancel any permit at its discretion. Discretion to be
exercised legally has to be exercised for legitimate purposes (that is, there are implied
limits on it, which come from purpose of statute). There is always a perspective
within which a statute is intended to operate, and any clears departure from its lines
or objects is just as objectionable as fraud or corruption

The Baker decision marked the turning point in the law of discretion in Canada:

Baker v Canada (Beginning of new approach as to how a court should evaluate


discretion):

FACTS: B, Jamaican, entered Canada in 1981. Never received permanent resident


status. Four children (who were all Canadian citizens) while living in Canada. B applied
for exemption from requirement to apply for permanent resident outside Canada,
pursuant to Immigration Act, based upon humanitarian and compassionate
considerations. Immigration officer was delegated task of Minister to decide, on a
discretionary basis, whether B should be exempted from normal operation of Act. E.g.
The Minister is authorized to grant an exemption where the Minister is satisfied that this
should be done, owing to the existence of compassionate or humanitarian considerations

ANALYSIS:

Review of Exercise of Discretion:

- The concept of discretion refers to decisions where the law does not dictate a specific
outcome, or where the decision maker is given a choice of options within a statutorily
imposed set of boundaries. Implies that we are not bound by a legal standard

- Discretion must be exercised in a manner that is within a reasonable interpretation


of the margin of manoeuvre contemplated by the legislature, in accordance with the
principles of rule of law, etc.

- But no strict dichotomy could be made b/w discretionary and non-discretionary


decisions (most decisions involved discretion)

- Must apply standard of review analysis: Here, the amount of choice lefty by
Parliament to the admin decision maker and the nature of decision made are important in
the analysis. These factors must be balanced to arrive at appropriate standard of
review. Court held that b/c decision is discretionary, it will generally merit wide
degree of deference, but that it is only one factor to look in the standard of
review. In this case, Court held that reasonableness is the appropriate standard (noting
the fact-specific nature of the inquiry, its role within the statutory scheme as an
exception, the fact that the decision maker is the Minister and the considerable discretion
evidenced by the statutory language; yet, the absence of a privative clause, and the
individual rather than polycentric nature of decision suggest that the standard should
not be as deferential as unreasonableness).

How to Apply Reasonableness Standard When Looking at Discretionary Decision?

- Overarching question is whether stayed within a range of reasonable choices

- In assessing reasonableness, must take into account issues arising from the serious
question of general importance, which is the question of the approach to be taken to the
interests of children. The officers notes indicate that the approach taken to the childrens
interests was unreasonable, notwithstanding the important deference that should be given
to his decision (this was a serious error).

- Determining whether the approach was unreasonable requires a decision maker


to consider the following when making a discretionary decision:

(a) Values/mandate Underlying Statute (e.g. stated objective of ct): Here, indicates
keeping families together is important

(b) International Law: Ratification by Canada of the Convention on the Rights of the
Child, recognition of importance of children rights and best interest of children. Even
though provisions have no direct application in Canadian law, the values may inform
contextual approach to stat interpretation. Note that the doctrine of legitimate
expectations does not mandate the result consistent with the wording of any international
instruments, the decision must be made in a way that respects humanitarian and
compassionate values.

(c) Ministerial Guidelines: Officers expected to make decision that reasonable person
would make, with special considerations of humanitarian values. The guidelines show
what the Minister considers a H & C decision, emphasizing officer should take into
account hardship that a negative decision would impose on claimant/close family
members. Officer did not consider impact on children, was not alert and alive and failed
to give them substantial weight; therefore was an unreasonable exercise of power.

Comment: Distinguish between weight/re-weighing factors vs Identifying factors that


need to be taken into account (by stating that the primary factor was to take into account
the interests of the children, they are placing weight on the factor). Also, by looking at
implied guidelines, are we just creating rules? What is the Court really doing? Is it in
accordance with the framework they set out? Concern that we cannot transform
discretion into the application of a legal test. So, there is a strong statement that the
exercise of discretion must follow an approach of what was authority granted, but
concern still about how to determine grant of authority.

Baker opened up that courts have a role in identifying factors relevant in the exercise of
discretion, which is a step forward from Roncarelli (where it was determined how
discretion can be used improperly).

Suresh v Canada (Limits scope of Baker cant re-weigh factors; main concern is
whether there was a capricious or vexatious error in the exercise of discretion, taking
account the Act, Minister guidelines etc)):

FACTS: Refugee claimant faced deportation to Sri Lanka, where he claimed he was
likely to face torture. Minister deported him. The appellant presented written
submissions and evidence to the Minister, but had not been provided with a copy of the
immigration officers memorandum, nor with the opportunity to respond to it orally or in
writing. This was a discretionary decision, b/c it allowed Minister to act when they are of
a certain opinion, namely when a person constitutes a threat to the security of Canada;
a person shall not be deported except where the Minister is of opinion that they constitute
this threat.

ISSUES: First, whether this provision was constitutional. Second and third questions
dealt with the discretionary issue, namely whether Ss presence in Canada constitutes a
danger to national security and whether S faced torture upon return to Sri Lanka. Fourth
issue was the adequacy of procedures that led to the admin decision.

ANALYSIS:

- Court reviewed where standard of review analysis applies (in general): Where
constitutional issue arises, no deference. For the discretionary decision, standard of
review applies. For the procedural fairness issue, it doesnt.

(1) The Ministers decision that a refugee constitutes a danger to the security of Canada:

- Here, the reviewing court should adopt a deferential approach, and should set aside
Ministers discretionary decision if it is patently unreasonable (it quickly looked at the
standard of review analysis).

- The court should not reweigh the factors or interfere merely b/c it would have
come to a different conclusion

- Weighing of relevant factors is not the function of a court reviewing the exercise of
ministerial discretion. Court says that Baker does not authorize courts reviewing
decisions on the discretionary end of the spectrum to engage in a new weighing process,
but draws on an established line of cases concerning the failure of ministerial delegates to
consider and weigh implied limitations and/or patently relevant factors [This is a
questionable interpretation]

- The courts task, if called upon to review, is to determine whether the Minister has
exercised her decision making power within the constraints imposed by legislation
and Constitution. Court cannot set aside even if it would have weighed the factors
differently and arrived at a different conclusion

- Parliaments task is to establish the criteria and procedures governing deportation,


within limits of Constitution; The Ministers task is to make a decision that conforms to
Parliaments criteria and procedures as well as the Constitution.

- So, where there is a broad grant of discretion, courts role is limited to determining
simply whether there was an error in the exercise of their discretion (was it
capricious or vexatious). When we are looking at this, we are looking at all sorts of
things, such as the Minister guidelines, the Act itself etc. (see Baker factors)

(2) Ministers decision on whether the refugee faces a substantial risk of torture upon
deportation.

- This question is largely a fact driven inquiry, and requires consideration of human rights
record of the home state, the personal risk faced by claimant, etc. Largely out of realm of
courts expertise. Therefore, deference must be given my reviewing court. Court may
not reweigh the factors considered by the Minister, but may intervene if the decision
is not supported by evidence.

- In sum, Court ought to be looking for constraints established by


PARLIAMENT. In applying standard of review, trying to identify constraints that
have been set by parliament either explicitly or more problematically implicitly

COMMENT: The approach we have is that limits are always there (either explicitly or
impliedly, by saying that the objectives of the statute require that the power of the grant
of discretion needs to do X)

CUPE v Ontario (Minister of Labour) (Not re-weighing factors, but you are entitled to
consider factors as relevant or irrelevant; but not every relevant factor failed to be
considered will be fatal it has to be a central factor):

FACTS: Compulsory arbitration health care workers have been an essential service,
which means they cant go on strike. Balancing of negotiating power of union has been
removed. In order to compensate for that is compulsory arbitration the purpose of
which is the arbitrator defines the terms of the collective bargaining agreement. If the
parties cant agree, then the Minister is able to appoint someone who in the opinion of
the Minister, is qualified to act. Historically, what went into that is that this person has
legitimacy, has knowledge of health care, etc. In Ministers opinion, arbitrators should
be retired judges. Decision was challenged
ISSUE: Union alleges that Minister used his power of appointment to influence
outcomes rather than process, to protect employers rather than patients, and to change the
appointments process in a way of attempting to seize control of the bargaining
process. Minister points to a number of reasons for his conduct which were closely
associated with purpose of statute. Ascertaining legislative intent of the HLDAA is the
main issue.

MAJORITY JUDGMENT:

- A statutory decision maker is required to take into consideration relevant criteria, as


well as to exclude from consideration irrelevant criteria

(1) First issue, must examine legislative scheme of HLDAA, particularly s 6(5):

- Words of the act must be read in their entire context, harmoniously with the
scheme/object of Act and with intention of Parliament

- Discretion of Minister is constrained by the scheme and object of the HLDAA as a


whole, which the legislature intended to serve as a neutral and credible substitute for
the right to strike/lockout

- Areas to look to determine to what is relevant:

(1) The history of the Act (i.e. commission reports) (e.g. what was said about it when it
was being created);

(2) The Ministers record (what did the Minister say about what the purpose was to be
e.g. in the Ministers

letter).

- Although s 6(5) is expressed in broad terms, the legislature intended the Minister,
based on the above factors, to have regard to relevant labour relations expertise as well as
independence, impartiality and general acceptability within the labour relations
community (i.e. track record in labour relations community)

(2) Second issue, must determine degree of deference which the Minister is entitled
to receive in exercise of discretion: In this case, majority determined that patent
unreasonableness was appropriate.

(3) Third, engage in analysis Under the Patent Unreasonableness Standard:

- Remember, in applying any standard, you are not reweighing the factors. But we
ARE entitled to have regard to the importance of the factors that have been excluded
altogether from consideration.
- Court notes that not every relevant factor that the Minister Fails to consider is
fatal has to be a central, relevant factor [Note: this creates a grey area, and room for
argument].

- The problem here is that the Minister expressly excluded factors that were not
only relevant, but went straight to the heart of the HLDAA legislative scheme (when
he appointed retired judges as a class to chair the HLDAA arbitration boards)
(namely, the need for appointee to have expertise etc.)

- [Note: but, what is re-weighing criteria if its not saying this is at the heart of the
scheme].

(4) Conclusion: Having regard to legislative intent manifested in HLDAA, the


Ministers approach to appointments was patently unreasonable.

DISSENTING JUDGMENT:

General Points:

- Agree that a contextual approach is required for determining relevant criteria Minister
should take into account. Disagree as to what the essential criteria are.

- In clear cases, criteria will be spelled out in legislation. Other cases, they will be
spelled out in guidelines/regulations. In other cases, they may be unwritten, derived from
the purpose/context of statute.

- They prefer a more limited, less searching approach. Looking at specific things that
must be found more explicitly in legislation (e.g. things in regulation, international
instruments which give interpret weight etc.).

- Relevant factors should be relatively explicit, and shouldnt be inferring


purpose/factors

- Distinction b/w relevant and irrelevant considerations. Relevant considerations can be


laid out in advance. The irrelevant considerations cannot be anticipated in advance in the
same way (e.g. so these can be implicit).

Relevant Factors in this Case:

- Statute does not say much. Says appointees must be qualified to act. It also states
that it is in the opinion of the Minister that such persons must be qualified to act. Are
there any other relevant factors? I.e. Can reviewing court infer other factors relevant to
the Minister in appointing chair?
- The factors majority implied, i.e. need for labour relations expertise, independence
and impartiality, reflected in broad acceptability are not obvious, and does not
constitute a basis for implying dominant factors

- The HLDAA called the Minister to reach his own opinion, not to consider a
specific factor

- It is difficult to consider the Ministers appointments as immediately or obviously


defective, particularly when the factors are not themselves immediately or obviously
ascertainable

ADMINISTRATIVE RULE-MAKING

Introduction

Administrative actors can sometimes make subordinate legislation, including:

regulations
orders in council
rules
by laws
orders
designations
guidelines
policy statements

Basically, this refers to the ability to make legally binding or non-binding norms (either
substantive or procedural).

Regulations/Rules

- Regulations are usually covered by The Regulations Act, which sets out procedure to
be followed when they make regulations. First, look at governing Act itself, to see if it
gives power to make regulations. Then, look to other statute (generally the Regulations
Act), to see if it followed the proper procedure to make the regulation.

- Rules are like regulations, but they wont fall generally in Regulations Act. They have
binding requirements. Need authority to make them under statute, and will have force of
law

Soft law

- Contrast rules and regulations with soft law. Those norms developed by executive
(admin actor), but do NOT have force of law. They are operating principles that can be
deviated from if the decision maker think that the individual circumstances merit
them. E.g. manuals, guidelines, non-statutory policy statements.
- Difference with these is that the admin actor doesnt need an explicit grant of statutory
authority to make soft law.

Why We Have Delegated Legislative Authority

- Legislature cant do it all

- Expertise (for highly technical areas, wouldnt want elected members of parliament
where they dont have the expertise, and they dont have the time to gather that expertise

- Allows local concerns to be accommodated/responded too

- Need flexibility. E.g. may need to adjust minimum wage quickly when legislative
assembly isnt in session

Risks of Delegation

- Will the agent actually stay true to the mandates/purposes/reason why they have the
delegated legislative power? Will they enact legislative rules that promote the purpose of
elected members of the legislature?

- Is the agent actually tying to promote public interest?

- Issues of accountability no direct accountability

- Is this legislative authority being contracted out to private actors?

- Certainty of law

Controls on Delegated Powers

- Legislative structure to control discretion as to what legislation is going to made they


can decide who is going to exercise discretion, and also can decide the resources to
provide to that decision maker (and can decrease amount of resources if dont want over
exercise of discretion)

- But legislative oversight may bring in problems b/c of the spot check approach it can
delay implementation, and defeat the idea of having an expert board (who can be
overseen by generalists)

- Further, there are substantive legislative oversights built in (namely the statute)

- When controlling such power, we are looking at judicial review. Does the decision
accord with the decision set out in the act? In Inuit Tapirisat, when decision is acting in
legislative capacity, no common law requirement of breach of procedural fairness. But
control can come from statute itself (e.g. was external consultation required prior to
passing guidelines, was public participation required)

- Judicial review of the substance (substantive judicial review) courts monitoring the
substance of the rules, to ensure they acted within bounds of power delegated to make
that decision whether mistakes were made, bad faith etc.

- As we have seen in CUPE, courts are hesitant to review where there is a broad grant of
discretion

HARD LAW (RULE MAKING)

When were looking at hard law (passing regulation), no duty of procedural fairness
(simply must follow statute) (Inuit Tapirisit). Still must be constitutional of course.

Generally, ability to make regulations, its permissive. So, if they havent done it, then
wouldnt be able to bring mandamus (but always looking at statute). So, when looking at
law making ability, its generally permissive. When looking at how you can challenge
that, ask whether it stays within the jurisdiction:

Enbridge Gas Distribution Inc v Ontario Energy Board (Outlines how courts review rule
making power, which is a jurisdictional question and a matter of statutory
interpretation and then a question of whether the correct procedures were followed in
making that rule):

FACTS: Appellants are 2 gas distributors. Each delivers gas through pipelines to
consumers. Gas vendors provide customers with gas supply, but do not transport
them. Board makes rule saying its up to vendor to decide billing. Distributors were
upset, and wanted to deal directly with their own customers.

ISSUES:

(1) Was Divisional Court right in finding standard of review of correctness was to be
applied in appeal of the making of the GDAR?

(2) Does the Board have the jurisdiction to make a rule with the billing provisions
contained in the GDAR?

(3) Did the Board follow the rule making process required by the Act?

ANALYSIS:

Issue (1):

- On appeal, court must determine whether s 44(1) gives Board jurisdiction to make the
rule. No deference to be given
- In essence, applies the correctness standard, but w/out applying standard of review
analysis to determine this

- Therefore, on questions of jurisdiction of subordinate legislation making of tribunal,


always go to correctness

Issue (2):

- Board may make rules governing the conduct of a gas distributor as such conduct
relates to [a gas vendor]

- Appellant says this doesnt give Board jurisdiction to do what it did; they say it
limits to governing only the part of a distributors conduct that relates to its business
relationship w/ vendor, excluding billing provisions which governs conduct with
customers. The Boards rule making power under s 44(1) states that: The Board may
make rules (b) governing the conduct of a gas distributor as such conduct relates to any
person selling or offering to sell gas to a consumer; (c) establishing conditions of access
to transmission, distribution and storage services provided by a gas transmitted, gas
distributor or storage company

- There is nothing in the language to suggest that narrow view. Further, such a
reading would be inconsistent with the purpose of the Act (which is to regulate all
aspects of the gas distribution business, not simply aspects involving a direct business
r/ship with gas vendors)

- But the Appellant raises a number of additional arguments beyond statutory


interpretation:

- First, GDAR has effect of requiring distributor to act as billing service provider or
purchaser for vendors, not as distributors. Court says no, the GDAR treat distributors
still as distributors

- Second, billing provisions go beyond s 44(1)(b), b/c they dont regulate an existing
field of conduct, but create a new field by requiring gas distributors and vendors to
cooperate in billing. Court says no, the rule governs conduct of distributors in relations
to their customers which is not new area

- Third, GDAR turns distributors into wholesale distributors by requiring them to send
their bills to vendors when the latter select the gas vendor-consolidation billing option;
b/c act limits gas distributor to one who delivers gas to consumer, s 44(1)(b) cannot
sustain a rule that creates wholesale distributors. Court said GDAR doesnt take
distributors outside of definition, as they continue to deliver gas to consumer

- Fifth, the vendor billing provisions of the GDAR effectively expropriate their goodwill
by depriving them direct contact with their customers. Court said while the vendor-
consolidation billing option precludes one way for distributor to communicate with
customers, there may be many others

- Sixth, s 44(1)(b) could not have been intended to permit a rule which interferes with
their common law right to have a direct billing relationship with their customers. Court
said that that the appellants have no common law right to engage in gas distribution at all.

- Therefore, s 44(1)(b) gives the Board the jurisdiction to make billing provisions

Issue (3):

- Appellants complain that the Board did not, as required, give a second notice about
anticipated costs and benefits of the proposed as a whole, or its individual provisions,
once it was amended

- Court said that Boards notice fulfilled legislative objective of permitting reasonable
opportunity for written submissions prior to making the GDAR

Comment: Essentially courts will review the substance of rules for whether the
regulation is within the grant of power (as in Enbridge), or whether the regulation
violates Charter, on a standard or correctness.

SOFT LAW

Recognize difference b/w regulations and rules versus guidelines. Broadly speaking,
there are several issues that arise when talking about soft law, including: procedural
fairness, impartiality and fettering discretion.

By fettering discretion, we mean the unlawful controlling of the decision. So, as


opposed to decision maker being free in making a discretionary decision, that discretion
is effectively removed. The consequence of this would be to essentially turn a guideline
into hard law, which would be outside of the power of the admin agency who has not
been given the authority to create them

Thamotharem v Canada (Minister of Citizenship and Immigration):

FACTS: Board issued Guideline 7. T challenged to Guideline, on ground that it


deprives refugee claimants of right to a fair hearing. At the Refugee Protection Division
(RPD), T was questioned first, and the RPD held that the duty of fairness does not
require that refugee claimants always have the right to be questioned first by their
counsel. RPD dismissed Ts claim, and did not find him a person in need of protection
(from being deported). In application for judicial review, T challenged decision on
ground that Guideline was invalid. RPDs decision was set aside and matter remitted
to another member for re-determination on basis that Guideline is an invalid fetter on the
RPDs discretion in the conduct of the hearing.
Guideline 7:

- Rationale behind G 7: Before issue of G 7, order of questioning was within discretion


of individual members, and was decided, in different cities, on an ad hoc basis. The
Board didnt regard this as satisfactory. Also, Idea that it would be more expeditious and
efficient if claimant was questioned first by RPO or member. BUT guidelines must
include in them the ability of a decision maker to deviate from them.

- IRPA confers Chairperson of Board power to issue guidelines and make rules.

ANALYSIS:

Standard of review

- Questions of law, raised about validity of G 7 are reviewable on a standard of


correctness: they concern procedural fairness, statutory interpretation, unlawful fettering
of discretion. The exercise of discretion by the Chair to choose a guideline rather than a
formal rule for amending procedure is reviewable for patent unreasonableness

Does G 7 prescribe a hearing procedure that breach claimants right to procedural


fairness?

- The procedure prescribed by G 7 is not on its face in breach of the Boards duty of
fairness, although some circumstances may require a departure from the standard order of
questioning

Framework for Challenging Soft Law

- Overall question is has the admin actor used a non mandatory tool and created a
compulsory rule (i.e. does it serve the role of guiding)? Or does the guideline attempt to
achieve a high level of compliance?

(1) First, is the guideline hard or soft law? Factors to consider:

(a) Its name (does it say its a guideline/rule/regulation)?

(b) Look at its mandate and ask whether this norm needs to be given the force of law in
order to fulfil that

overarching purpose;

(c) Does it require Cabinet approval? If it does, this suggests that it is hard law, given
that all hard law requires

Cabinet approval. But guidelines may also have cabinet approval, so this isnt
determinative (hard law must
have explicit grant of authority);

(d) Apply basic statutory interpretation techniques, searching for intention of legislature
(but if words arent clear,

can look to the context in which the statute was created, e.g. committee hearings, to
determine whether hard

or soft law).

(a) If G 7 constitutes delegated legislation (hard law), G 7 cannot be characterized as


unlawful fetter on discretion (and see Enbridge): Despite statutory authority of Chair to
issue guidelines, not same legal effects of statutory rules, in particular theyre not
necessarily mandatory. But it is possible that, depending on legislative context,
guidelines may be delegated statute, e.g. where they are issued by an order of a Minister
and approved by the Cabinet, or issued by Human Rights Commission. But IRPA
scheme is different.

(2) If it is soft law, ask whether there is an unlawful fetter on discretion? E.g. Does the
decision maker still have the ability to decide based on the discretion given? If no, then
unlawful fetter. Consider factors:

(a) Look at language (whether it expressly permits a departure from the standard, as was
the case here);

(b) Look at track record (but, remember that the fact that some hearing officers
understand that they are not

legally bound by the guideline does not mean that all hearing officers wouldnt
misunderstand the non-legally

binding effect);

(c) Look at the process (are the members required to justify any deviation); (d) Look at
the consequences of

deviating (punitive?);

(e) Is there any coercion to not deviate inherent in the process?

Application:

(a) Language: Language of Boards police on use of guidelines says the guidelines
apply to most cases, but in
compelling circumstances, discretion can be invoked. Text of G 7 is more
important. Para 19 says it will be

standard practice to question claimant first. This is less strict than must. Also, says
that the standard practice will

be for RPO to start questioning, and may vary order in exceptional circumstances. The
fact that a guideline is

intended to establish how discretion will normally be exercised is not enough to make it
an unlawful fetter, as long as

deviation may exist.

(b) Effect: Evidence that when requested to vary order, RPD exercised discretion. There
is no evidence that members feel coerced by G 7 such that they will undoubtedly follow
it. No sanction for non-compliance.

(3) If there is no unlawful fetter, then one can still challenge the guideline on an
individual basis, namely that the particular decision maker treated the soft law as
legally binding (and unduly constrained their exercise of discretion)

(4) If you want to challenge the guideline on a basis other than fettering discretion or
procedural fairness, may question whether the guideline should have been made under
a rule (which will likely be reviewable on a deferential standard)?

Application:

- Power to issue guidelines is broad enough to include a guideline in respect of the


exercise of members discretion in procedural, evidential and substantive matters. Power
includes creating guidelines for assisting members in their duties, and one members
duty is to conduct hearings as quickly as possible as justice permits.

- But argument is that G 7 is a rule of procedure, and should have received Cabinet
approval and been laid before Parliament.

- Court says that while the Chairs discretion to choose b/w a guideline or a rule is not
beyond judicial review, it was not unreasonable for the Chair in this case to choose to
implement the standard order of questioning through the more flexible legislative
instrument (the guideline)

HELD Dismiss Ts appeal

STANDING and PROCEDURAL ISSUES

STANDING
- Standing: Ability to be heard in court.

Finlay v Canada (Test for general standing and public interest standing on judicial
review):

FACTS: F was a resident of Manitoba, received social assistance, but that was deducted
from him, which left him with insufficient means. The amount he received should have
been sufficient according to legislation. He brings claim not that legislation was invalid,
but that federal payments to province were illegal, b/c province wasnt complying
agreement that governed the relationship He requested a declaration and injunction

ANALYSIS:

Test for Standing

(1) GENERAL STANDING: Does the respondent have sufficient personal interest in
the admin action being challenged to bring him within the general requirement for
standing to challenge an exercise of statutory authority?

Factors to consider: Is there a direct personal interest? Is the respondent likely to gain
some advantage beyond satisfaction of being right or of correcting wrong? Is a legally
recognized interest affected (Real Estate of Alberta v Henderson)?

- Here, respondent surely has personal interest

CAUSAL RELATIONSHIP Sub-requirement: Need causal relationship b/w alleged


prejudice and what is being challenged is the relationship b/w harm suffered and admin
action attacked too speculative? In this case, there was a statement that declaring it
illegal wouldnt necessarily impact province (it was a bit speculative potential problems
with causal relationship); the declaration sought wouldnt necessarily address Fs
concerns about having deductions from welfare payments; even in the face of that
remedy, they could still administer plan; so it wouldnt have the effect of correcting
harm/prejudice.

(2) PUBLIC INTEREST STANDING: Does the Court have discretion to recognize
public interest standing in the circumstances of the present case?

Pre-condition: Issue should be justiciable (appropriate for judicial determination; is it


something the court ought to be looking at, or is the court stepping into the political
arena);

3 Requirements:

(1) Does the application for judicial review raise a serious legal question (e.g.
jurisdictional, Charter claims)
(2) Does the party seeking standing have a genuine interest in the resolution?

(3) Is there no other reasonable/effective manner in which the issue may be brought
before court?

First, public interest can always be brought by A-G, so must question whether it was
realistic to get A-

Gs consent.

Second, and if no A-G consent, look at whether the individual(s) directly affected could
bring the

application on their behalf.

- Must keep in mind the following concerns: (1) We have scarce judicial resources;
(2) We need to have those most directly and personally involved to be heard; (3)
Concern of public interest standing re role of courts.

(3) Application (in this case)

- In this case, the respondent must rely for standing on what is essentially a public interest
in the legality of the federal cost sharing payments, albeit a particular class of the public
defined by the Plan as persons in need:

(a) Justiciability: Where there is an issue which is appropriate for judicial determination,
the courts should not decline to determine it on the ground that b/c of its policy context or
implications, it is better left for review by the legislative/executive branches of
government. There may be cases where the question of provincial compliance with the
conditions of federal cost-sharing will raise issues not appropriate for judicial
determination, but the particular issues raised by respondent are questions which are
clearly justiciable.

(b) Serious issue raised and must have genuine interest: The respondent meets both
requirements. Claim is far from frivolous. They merit consideration. Further, the status
of the respondent as a person in need who complains of having been prejudiced by the
alleged provincial non-compliance shows that he is a person with a genuine interest.

(c) There must be no other reasonable and effective manner in which the issue may be
brought before a court: This deals with concern that in determination of issue court
should have benefit of the contending views of person most directly affected by
issue. Here, based on nature of legislation, there could be no one with a more direct
interest than the P in a position to challenge the authority to make the federal cost-sharing
payments. Note that in so far as a prior request to the A-G to intervene might be
considered to be necessary in certain cases to show that there is no other way issue may
be brought before court, it should not be regarded as necessary in a case like this, where it
is clear that A-G would not have consented.

HELD The respondent has standing for declaratory relief to challenge the legality of
the federal cost-sharing payments, and injunctive relief (no reason why injunctive relief
would not be granted if the former is granted)

Amnesty International Canada v Canadian Forces (Application of Finlay test for public
standing):

FACTS: AIC brought application for judicial review with respect to actions or
potential actions of the Canadian Forces deployed in Afghanistan, and specifically, to
review the conduct of Canadian Forces with respect to detainees held by them. AIC
sought to prohibit further transfers of detainees to Afghan detention until adequate
safeguards were put in place. The respondents filed a motion to strike. It is this motion
that forms the subject of this decision.

ANALYSIS:

The Notice of Application

- AIC seeks a declaration that the Arrangement violates Charter (no adequate
substantive/procedural safeguards against torture)

Standing

- AIC submits that they satisfy the criteria to be granted public interest standing to
allow them to pursue the matter

(1) Action raises serious legal question/justiciable question (raises serious legal issues
and the appellants have a

fairly arguable case)

(2) Party seeking standing has a genuine interest in the resolution of question (yes);

(3) No other reasonable/effective manner in which the question may be brought to


court): Gov says detainees should

bring the application, but the prospect of this happening is slim). But individuals handed
over to Afghan

government do not have any meaningful ability to mount a challenge in this country with
respect to conduct of

Canadian Forces
Any Basis for Judicial Review?

- Respondents argued that even if standing exists, AIC has no chance of success as it
does not raise a matter in respect of which a remedy is available under the Federal
Courts Act, s 18.1(1). Respondents say that AIC does not identify any admin or
executive action that violates/likely to violate Charter of any specific individuals. As
such, it doesnt involve a decision, order, act or proceeding as contemplated by s
18.1(3) of the Federal Courts Act.

- This is not true, there is a chance at success. Court notes things such as the absence of
a decision is not an absolute bar to an application for judicial review, and the role of the
Court has been found to extend beyond the review of formal decisions, and to include
review of a diverse range of admin action nthat does not amount to a decision or order.

HELD Applicants granted public interest standing and respondents motion to strike is
dismissed

ADMINISTATIVE ACTOR APPLYING FOR JUDICIAL REVIEW

Watson v Peel Police Service (Decision maker cannot seek judicial review b/c of
principles of fairness, independence and decision maker being functus if being able to
decide after the fact):

FACTS: W was acquitted w/ criminal charges, but charged w/ discipline offences under
the Police Services Act. W moved for a stay of the discipline proceedings on basis of
abuse of process. Hearing officer granted Ws motion. Chief, who was both investigator
and could hear complaints, wanted to challenge the hearing officers decision. Under the
PSA, Chief has no right to appeal officers decision. But the Chief applied for judicial
review.

ISSUE: Can an admin decision maker seek judicial review of his/her own decision?

ANALYSIS:

(1) Standing

- Reading the Act, the Chief plays two roles in the discipline process: First, he must
decide whether a hearing is warranted and, second, the Chief is central to the hearing
process either he conducts it or delegates the duty. The Division Court erred by seeing
the Chiefs role as purely investigative.

- Also, the Act does not grant a right of appeal to the Chief, and it is logical that the
Chief not enjoy such a right, because he is the decision maker sometimes personally
and other times through appointees. If the Chief cannot challenge the decision of his
delegate by way of appeal, he should not be able to mount a similar attack through the
vehicle of judicial review.
- Given the Chiefs pervasive role in the process, absence of right of appeal, a rejection
of standing for Chief to challenge a decision of a hearing officer by way of judicial
review makes sense.

- If standing is granted for decision maker to challenge its decision after the fact,
the problems with perceived fairness, independence and idea of decision maker
being functus arise.

HELD Appeal allowed no standing.

Real Estate Council of Alberta v Henderson (Executive allowed standing for JR,
because of independence w/ decision maker):

FACTS: The Executive in this case acted as an investigator and prosecutor, but not
decision maker, which was made by a separate hearing panel. Industry member (i.e. real
estate worker) has right to appeal decision of panel, but Exec does not. During hearing,
case officer prosecuting charges on behalf of Exec began asking leading questions. Panel
didnt allow Exec to cross examine H. So, Exec sought JR b/c it objected to procedures.

ISSUE: Is JR available to a statutory delegate in the absence of a statutory right of


appeal?

ANALYSIS:

- JR available to aggrieved parties. The aggrieved person category is undefined and


deliberately so. Much will depend on context. An important factor is the relationship
b/w the applicant and the challenged decision, or how directly the challenged admin act
will affect the legally-recognized interests of the applicant. Affected interests may
include business, professional, employment etc.

- The legislature has expressly conferred on the Council a public interest responsibility to
police the real estate industry and protect the public from abuse by industry
members. The Council has a legitimate concern to ensure that the hearing process is
carried out in accordance w/ law. Thus, decisions of hearing panels that entrench flawed
hearing processes will negatively impact not only on the present, but also the future
ability of the Exec to discharge his/her abilities to the Alberta public.

- Here, the Exec director was prevented from cross examining a compellable witness; the
Legislatures decision to make the industry member compellable would be subverted if
the industry member could then not be cross examined by the Exec.. Thus, the ruling
precluding the Exec is a critical concern to the Council

- What about the assertion that to allow judicial review would permit Council to impeach
its own decision? Here, the legislative regime under the Act provided for independence
b/w the hearing panel and the Executive Director exercising prosecutorial powers on
behalf of the Council. The Act specifically allows an industry member to appeal the
finding or order of the panel, as distinct from the Council itself. The significant point for
the purpose of analyzing whether there is standing for judicial review is that the
legislation expressly recognized the distinctions b/w a decision of Council and that of
a hearing panel, and grants an appeal from the decision of a panel. [Note: Always
look at legislative intent]

REMEDIES

OVERVIEW

- Where statute does not provide for an appeal to the courts, the parties only entre to
the courts is by means of judicial review. But where a statute provides for
reconsideration or appeals, a challenger should generally exhaust those avenues before
making an application for judicial review.

- One difference b/w the two is that remedies available may be different: On appeal, a
court may have the power to vary the decision or substitute its own decision depending
on wording of statute, but on judicial review, court wont do this.

PRINCIPLES AND RULES

(1) As a GENERAL RULE, all internal avenues must be exhausted before making
an application for judicial review (Canada v Addision & Leyen)

Canada v Addison & Leyen Ltd:

FACTS: Minister of Revenue claimed York Beverages entire tax liability from the
respondents, who held shares in that company, and the amount assessed in respect of
respondents was limited to the amount of payments that person received from York b/w
1988-89. Respondent filed notices of objection. In 2005, they applied for judicial
review of Crowns decision to use its discretion to assess them under s 160 ITA, on
ground that the long delay in issuing assessment was abusive, prevented them from
mounting a proper challenge to validity of the assessment etc. Crown moved to strike
app for judicial review.

ANALYSIS:

- Two reasons why JR was struck: (1) Applicant hadnt exhausted all internal remedies;
(2) No valid ground brought forward (similar to striking a SoC)

(2) EXCEPTIONS TO GENERAL RULE:

(a) If abuse of power that requires court control, then dont have to exhaust all
internal processes (Gates v Canada)
(b) Where there is an urgent substantive problem (physical or mental harm) AND
the internal procedures are inadequate, then dont have to exhaust all internal
processes (inadequate procedures showed by (i) delay; (ii) transient problems of
people making complaints; (iii) many complaints were brought up but simply
ignored) (Gates v Canada)

Gates v Canada:

FACTS: Applicants in Temporary Detention Unit (TDU) claim their units have become
unhealthily cold. Doors left open to clear smoke. Acts establish that respondent has duty
to provide healthy environment for applicants. When disputes arise b/w the CSC and an
inmate, the Regulations provide for a complaints and grievance process.

ANALYSIS: Whether Court should decline to hear this matter b/c applicants did not
utilize the internal complaints process?

- There are strong policy and statutory reasons for requiring inmates to use internal
complaints process. It is in cases of compelling circumstances, such as where there is
actual physical or mental harm or clear inadequacy of the process that a departure
from the complaints process would be justified.

- Also, look at regulatory scheme. Here, s 81 contemplated an inmate seeking alternative


legal remedies to those internal remedies.

- B/c, here, there are potential health issues, and complaints process slow, need to
resolve complaints quick

- Also, there is no assurance that the complaints will be acted upon

HELD This is a proper case for departing from the requirement to follow the
complaints process

(3) Remedies as a result of JR are always discretionary: In exercising discretion, ask:

(i) Whether application was premature?

(ii) Alternate remedy available?

(iii) Are issues moot (no practical effect?)

(iv) Was there delay in bringing the application?

(v) Is the applicant a bad actor (unclean hands)

E.g. Homex Realty v Wyoming (Villiage): Judicial review is a discretionary remedy


(Judicial Review
Procedure Act). Court looked at conduct of H: (a) H took inconsistent and even
contradictory

positions throughout proceedings (b) H sought to put its lands beyond the reach of
municipal

regulations by means of checker boarding an apparently legal right but nevertheless a


factor to

consider (c) Of primary concern is Hs attempt to shift the burden to the ratepayers in the
Village by

undoing the municipal action taken in the form of the by-law (d) Village was acting in
the interests of

the public etc

PARTICULAR REMEDIES

Writ of Mandamus (Rules) (Apotex Inc v Canada)

- Mandamus is an application to compel the admin actor to do whatever it has a duty to


do

- The courts will not dictate how the delegate should decide under mandamus, but will
orders delegate to do their duty and to make decision in accordance with the law

- Before courts command an admin decision maker to do something, the following must
be considered:

1. Must be a public duty to act


2. Duty must be owed to applicant
3. Must be a clear right to the performance, established by:
1. Applicant has satisfied conditions precedent (e.g. file application, file
affidavit of a specific form, etc)
2. Prior demand for performance, followed by reasonable time period for
compliance and express or implied refusal to comply (e.g. formal demand
of decision) (in this case, a long period time passed after notice of
compliance given to Minister)
4. If admin decision maker has discretion to perform duty, the following rules apply
(dont need public duty to act):
1. Discretion must be fairly exercised, but if discretion is broad, mandamus
is unavailable
2. Court cannot compel discretion to be exercised in a particular way (i.e.
cant demand outcome) (we can compel discretion to be exercised, but
cant demand a particular result)
3. But difference is if you have a vested right (discretion must be
spent). (Remember Mount Sinai, Minister promised if they moved, then
their operations would be changed issue of whether decision was already
made, or if it was compelling them to follow through. In Apotex, slightly
different way of looking at it discussion of whether right had vested or
not i.e. whether discretion had already been exercised, and then there
was a vested right for the issuance of notice of compliance.

[If discretion is such that they may do something, then mandamus generally not
available, unless exercised already (then they must exercise it properly). If
discretion involves choice between X, Y and Z, then court can make them exercise
their discretion, but cannot compel them to choose which way to go]

The remainder of considerations concern how court exercises its discretion when issuing
all prerogative writs:

1. No other adequate remedy


2. Order of practical value
3. No equitable bar toe relief sought (e.g. clean hands)
4. Balance of convenience favours order of mandamus: Even when all criteria are
met, Court can make decision to not grant remedy. If Court does not grant
remedy when all criteria have been met, then this means that there is a legal duty
of government actor to do X. But, in denying remedy based on balance of
convenience, Court says they dont have to uphold duty. Thus, what would
otherwise be illegal is legal idea of suspension of the operation of law. So,
Court concerned about limiting situations in which Court wont grant
discretionary remedy. Court summarizes these areas:

(i) Where result practically impossible (costs very high, chaos in area of law);

(ii) When a change in policy direction is coming, but hasnt yet been fully implanted,
might be a

consideration. But, in order for policy change to be a relevant consideration, must


establish that

intent to change the policy was in place BEFORE the request for application to decision
maker.

Look, also, at statute does it create authority for decision maker to make
prospective/retrospective

decisions?

(Ottawa v Boyd Builders: Developer applied for rezoning at time application was
made, there was
no bar to rezoning application it ought to have been issued, but it wasnt. Then, policy
changes to

by law made it impossible. Decision maker pointed to change in law, to say that this
change came

into effect and now we wont grant this application. We get sense in Apotex case about
rules issuing

NoC were changed b/c of this, could the court say now the law has changed, and make
the change

retroactive? We get rule that in Boyd Builders, intent to change zoning must have been

there before application was made)

Other Remedies

- Courts have limited authority in this context, given that the authority to make decisions
has been granted to another decision maker

- Before looking at JR remedies, look at statute for internal mechanisms of appeal, where
it is possible that court may be granted power to impose own decision

- When not looking at appeals, we look mainly to ancient prerogative writs:

(a) Certiorari: Quashing/setting aside decision of admin actor (sometimes, if applicant


requires decision to be made, you can ask for remitting with directions)

(b) Prohibition: Issued by an appellate court to prevent a lower court from exceeding its
jurisdiction, or to prevent a non judicial officer/entity from exercising power. This is
used to provide pre-emptive relief, unlike certiorari.

(c) Mandamus (Literally we command): A writ issued by a superior court to compel a


lower court/government agency to perform a duty it is mandated to perform. It is often
used in conjunction with certiorari, namely where certiorari would be used to quash a
decision, for example, for lack of procedural fairness, while mandamus would be used to
force the tribunal to reconsider the matter in a procedurally fair manner.

(d) Declaration: A judgment of a court that determines the legal position of the parties,
or the law that applies to them.

(e) Costs: May also apply for cost orders (e.g. solicitor-client costs, if the decision maker
acted in bad faith (Congregation des temoins v Lafontaine).

- Not looking at damages generally: look to torts of misfeasance in public office for this
-------

Apotex Inc v Canada (Summary):

FACTS: A is a drug manufacturer/distributor. A sought an order in the nature of


mandamus to compel the Minister of National Health and Welfare to issue a notice of
compliance with respect to drug enalapril in order to be in a position to market the drug
in competition with Merck, the appellant, who distributes a similar drug. Merck sought
order prohibiting Minister from issuing the notice to A. A won, and Merk appeals.

ANALYSIS:

(1) Mandamus (Principles):

- Several principal requirements must be satisfied before mandamus will be issued:

(a) Must be a public legal duty to act (e.g. public official/official body; a body governed
by statute)

(b) Duty must be owed to applicant

(c) There is a clear right to performance of that duty, in particular: (i) The applicant has
satisfied all conditions

precedent giving rise to the duty; (ii) There was, first, a prior demand for performance of
the duty, second a

reasonable time to comply with the demand unless refused outright and, third, a
subsequent refusal which can

be either expressed or implied, e.g. unreasonable delay

(d) Where the duty sought to be enforced is discretionary, the following rules apply:

(i) in exercising discretion, decision maker must not act in a manner which can be
characterized as unfair,

oppressive, acting in bad faith etc

(ii) mandamus is unavailable if the decision makers discretion is characterized as being

unqualified/absolute/permissive

(iii) in exercise of a fettered discretion, decision maker must act upon relevant
considerations
(iv) mandamus is unavailable to compel the exercise of a fettered discretion in a
particular way

(v) mandamus is only available when the decision makers discretion is spent, i.e., the
applicant has a vested right to the performance of the duty

(e) No other adequate remedy is available

(f) Order sought will be of some practical value

(g) Court in exercise of discretion finds no equitable bar to relief

(h) On balance of convenience, order of mandamus should/should not issue

(2) Respondent Arguments

- Prematurity: An order of mandamus will not lie to compel an officer to act if they
are not under an obligation to act as of the hearing date, not the application date, as the
respondents argue. As a general proposition, it is open to respondents to pursue dismissal
of application where duty to perform has yet to arise. However, unless compeling
reasons are offered, an application for an orer in the nature of mandamus should not be
defeated on the ground that ti was initiated prematurely.

(3) Did A have a vested right to the NOC at the time of the passing of the Bill (and claim
advantages of old law)?

- Issue is whether A had a vested right to the NOC rather than a mere hope or
expectation

- 4 issues are relevant to the determination of whether A had a vested right to the NOC:

(a) The scope of the Ministers discretion: Fettered discretion

(b) The relevance of legal advice: Merk argued Minister was entitled to seek legal
advice, and therefore was not obligated to issue the NOC prior to March 12,
1993. NO! The inevitable delay resulting from solicitation of legal advice cannot
prejudice the right to performance of a statutory duty

(c) The relevance of pending legislative policy: Merk argued that pending legislative
policy is a consideration relevant to the exercise of Ministers discretion. The law
shouldnt preclude the possibility of recognizing the Ministers right to refuse to perform
a public duty on the basis of policy rationales under scoring impending legislation, e.g,
where Minister acting in good faith believes sale of product may pose health risk; in such
a situation, court may adjourn mandamus hearing if impending legislation (after applying
the balance of convenience test). But here, cannot be said that in exercise of statutory
powers, Minister was entitled to have regard to provisions of Bill C -91 before they were
proclaimed into effect (not a relevant consideration).

(d) De facto decision never made:

(4) Balance of Convenience:

- Weighing competing interests in determining proper exercise of discretionary power

(a) Ambit of Courts Discretion includes discretion to refuse mandamus on the grounds
of balance of convenience

(b) Criteria for Exercise of Discretion: Recognized categories for denying mandamus
include: (1) where admin cost that would follow from order are unacceptable; (2)
potential health and safety risks to publiuc are perceived to outweigh an individuals right
to pursue personal economic interests; (3)