Canadian Administrative Law (NCA) Review

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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 someentitlements 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 statuteitself doesn’t 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 appliesmuch 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:

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Does it spell out a procedure to follow? If yes, advise that to be followed, b/c

don’t 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 person’s 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); legislativefunction (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 wouldn’t 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 governsthe 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, doesn’t mean a police officer shouldn’t get anyopportunity for a hearing whatsoever. This isn’t a judicial decision, it was an admindecision. 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 ( theconsequences 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 thatthere 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 beheard 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 theSegregation Review Board; Director didn’t 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 decisionswhich affect the rights, privileges and interests of an individual)

Question is what the duty may reasonably require of an authority, and what is to beconsidered 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 Director’s decision on the appellants, proceduralfairness 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 theminimal 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: K’s employment contract stipulated that he could be terminated either by 3months’ 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 Board’s lawyers and his lawyers. K brought action alleging wrongfuldismissal. 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 proceduralfairness, and could only be removed for cause. The Board appealed.

ANALYSIS:

Procedural protections he was seeking didn’t exist in statute, but at common law, it’sabout 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 person’s 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 (don’t have to get to the thresholdof 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 employee’s dismissal, butwould only require the admin body to give the officer holder reasons for the dismissaland 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 theindividual. Courts have recognized that the loss of employment against office holder’swill 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 respondent’s general right to procedural fairness has beenrestricted: 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 andits 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 board’s 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 party’s



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 thathe 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 toadministrative, 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 adecision is legislative, look at:

( 1) Is there a lis (a dispute between parties)? If it’s a policy ba sed decision, with no core

argument,

then it’s 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 doesn’t apply to legislative decisions if theyare 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 CRTC’s decision. Bell Canada filed reply. Inuit Tap. preparing finalreply, 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 NationalTransportation 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 don’t have

immunity.

What makes a decision legislative: (1) Is there a lis (a dispute between parties)? If it’s a policy based decision, with no core argument, then it’s more likely to be legislative (2) Is

it between a defined number of parties with defined interests, or is it something that ismore 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, wasexercising 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 whichParliament 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 todetermine whether the Governor in Council has performed its functions in accordance

with Parliament mandate. *Basically, the Cabinet’s 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 ministerialdecisions 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 it’s a purely legislative decision, the court’s won’t impose further requirements (Question: Whether it is the legislative exception principled, or is it a way

of not interfering with an admin’s decision).

Also, the issue/doctrine of “legitimate expectation” raised – that is, based on the conductof 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 isno 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 notfetter the decision following the representations. Parliamentary government would be

paralyzed if the doctrine could be applied to prevent the gov. from introducing legislationin Parliament.

HELD - Appeal allowed. The rules governing procedural fairness do not apply to a bodyexercising 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 towhich Wells had been appointed. HELD - Wells’ argument that he should have beenaccorded procedural fairness was rejected by the Court which stated: “Legislatures aresubject 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, don’t need admin/public

law; Modifies Knight ):

FACTS: D hired as Court Services Legal Officer. He was an employee under NB’sCivil 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 D’s right to procedural fairness not breached. D appealed.



ANALYSIS:

“We are of the view that the principles established in Knight relating to the applicabilityof 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 employee’s 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, officeswere 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 weredismissed could only sue for damages. This conception of public office has

faded. Second, the dismissal from public office involves the exercise of delegatedstatutory power and therefore should be subject to public law controls, unlike the

dismissal of a contractual employee which only implicates a public authority’s privaterights as an employer. Third, unlike contractual employees, office holders did nottypically 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 employee’s status, is the crucial consideration. Where theemployment 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 isn’t 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 they’ve 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 onthe 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 don’tengage 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 theissue and further requests cannot be submitted. E.g., if there’s a privativeclause, 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 tointerview all applicants doesn’t diminish the procedural protections thatthey 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 befollowed, 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 thatexpected outcome)

o E.g. In Congregation, the Municipality followed an involved process in

responding to the Congregation’s first rezoning application, in doing sogiving rise to Congregation’s legitimate expectation that futureapplications 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 reasonableexpectation 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 thatthey 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 generalstatement 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/inthe sphere where Municipalities have expertise beyond the judiciary. But

this doesn’t carry much weight where there is no record to indicate that theMunicipality has actually engaged its expertise in evaluating theapplications.



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 residentstatus. 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 madesubmissions, through lawyer and Children’s Aid, including that she was sole caregiver

for 2 of her children, and that the other 2 depended on her for emotionalsupport. 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 decision’srole is within the statutory scheme as an exception — - These factors suggest morerelaxed 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 can’t 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 begiven 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 doesn’trequire 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 don’t 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 judicialreview. 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 rightswould 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

won’t work)(CUPE v Ont).

You can’t 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 gov’t changed and the new Minister wanted to shut themdown 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-à-vis the permit

when it promised to issue it, and acted outside competence limits when refused to issue

permit.

ANALYSIS (Minority’s 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 arekept 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 substantiverelief 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 proceduralfairness as a subset of legitimate expectations may complicate the development of highly

flexible rules of fairness; on the other hand, concern that using Minister’s prior conductas 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 shewas aware of such conduct, or that it was relied on with detrimental outcomes.

(iv) Cites Reference re Canada Assistance Plan: Court notes this authority, whichregarded 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 therewould 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 USsimilarly 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 appropriatetransitional 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 can’t 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 appointsretired judges that weren’t 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) Minister’s 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 saythat his decision affected the vital interest of union members (earning a

livelihood). Cour t held that “assuming the existence of a duty to consult, I think it wassatisfied” – 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 thereturn to the “sector based system” was HLDAA, including the broad latitude afforded tohim 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 resolutioncommission. 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 Minister’s 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 doesn’t establish a firm

practice in the past of appointing HLDAA arbitrators, or proceeding by way of mutualagreement

COMMENT: Past practice of the government official and quality of evidence of analleged 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 can’t 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 can’t 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 don’t 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 thematter, 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 unlessagreement had been fully carried out, or the Village consented. Appellent Homex bought

most of subdivision with Village’s 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 wasthe 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.

- Won’t 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 beingundertaken and (iii) the general circumstances prevailing at the time of action must be

taken into account.

HELD – Here, statute doesn’t 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 reportedculmination 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 Statutedoesn’t displace the old rule of audi alteram partem and the resultant duty in Council tohear 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 wouldnot – 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 doesn’t

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 wouldeventually 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. Noticesgiven 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 wasn’t 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 City’s decision making power, the statutory scheme and the City’s rolein 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. *Thesefactors may attenuate the duty that might otherwise exist to meet the expectations

of the interested parties. Court was satisfied that City’s procedure was fair process (e.g. the ODP by-law originally drafted raised no expectation that thecorridor 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 proceduralgrounds – the City’s conduct in enacting the by law complied with the requirements of



fair process. Also, the City didn’t exceed its powers granted to it by the Vancouver Charter.

DISCLOSURE

Disclosure is a key component to exercising one’s 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 challengethe 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 waslikely 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 copyof the immigration officer’s memorandum, nor with the opportunity to respond to itorally 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,it’s 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, it’s a PROSPECTIVE decision, which courts don’t 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 ishighly 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 securityconcerns. *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 beinformed 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 safeguardingconfidential public security documents.

(iv) ALSO, fundamental justice requires (remember, this is a Charter decision) that anopportunity 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 wouldn’t betortured upon return to Sri Lanka. S and his counsel disagreed with this, yet it wasn’t

disclosed.

In determining the content of procedural fairness, context is everything. In Ahani vCanada (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 Minister’s 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 inCharkaoui 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 thatthe 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 won’t 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 CSIS’s duty to retain and

disclose information. *This conclusion flows from the serious consequences theinvestigation 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 isthose things which would be injurious to national security (comes from the Act). In theend, 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 RightsCommission, Commission didn’t process complaint. P wanted to challenge decision, and

argued that P was entitled to all documentation Commission possessed, including in

house counsel’s 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 doesn’t 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 Council’s decision

HELD - Although appellants aware of issues given in meetings, it doesn’t follow thatthey 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 thecase 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 City’s duty totreat CPR fairly. Court said City’s 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 Clerk’s office. CPR complained that

the City failed to disclose documents related to an investigation by the BCBuilding. 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 complainant’s trauma in sexual harassment cases of havingto 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 reportsetc – it might be better to present it in writing. It might be harder to getthis information across orally.

Baker v Canada (No presumption of oral hearing): The court rejected Baker’s 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 onappeal. 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 anoral hearing. The appellants allege that the procedural mechanisms in the Act denythem 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) isone 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 wisdomthat 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 encompassfreedom 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 aminimum 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 statusmeet this test of procedural fairness (i.e. do they provide an adequate opportunity for aclaimant 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, it’s

“difficult to conceive of a situation” where the claimant would not be entitled to

prior discovery of the Minister’s 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, andcomplainants 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 resultingfrom 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 (thecauses 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 thedelay.

In present case, communication b/w parties was ongoing. Further, the delay must havecaused prejudice of such a magnitude that the public’s 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 beidentified 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 caseare and how much time is needed for procedural safeguards of the individuals

involved

2. The cause of the delay3. 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 thecomplaints)

(3) B’s 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 remediesare: 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 beconsidered 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 arisingout 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 it’s not just about t he 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 Children’s Aid that process needed to stop. Child taken from Foster parentshome. They complained to Children’s Aid (HCAS) and were referred to external review process in Jan 04. In Feb 04, foster parents requested a Director’s review of decision to

have child with them. Hearing in June 04, Foster parent called evidence that movingchild would cause harm. Director proposed assessment was needed, which wascompleted 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 andconfirmed 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 reportfrom 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 wasn’t 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 purposeof 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 asreasons for delay were in accordance with purpose of the statute (which is protecting

the child’s best interests), procedural unfairness won’t 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 madea 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, suspensionand 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

didn’t respond.

Grounds of appeal: The Commission has an obligation to act fairly and reasonably tothe 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 public’s sense of decency and fairness is affected and would bring theadministrative process into disrepute and so constitute an abuse of process? This must beviewed 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 theCommission, 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 wasn’t that bad);

The key question is “does the above constitute inordinate delay that has caused actual

prejudice of such a magnitude that the public’s 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 bylegislation 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 morecomplex 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 reviewand 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/outcompensation. 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 timewith 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 Conventionrefugees seeking resettlement (CRSRs). Applications denied, and following judicial

review, were sent back for re-determination. Their lawyer requested to be present at 2

nd

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 fairnessmay 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 thelegal 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 involvedconsideration 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 hiswritten submissions. Third, the appellants’ interview cannot be classified astaking place at a preliminary stage in the process and, therefore, the Dehghani v

Canada decision that the principles of fundamental justice did not include theright 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 Officer’sdecision (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 officersnot obliged to interview all applicants doesn’t diminish the procedural protectionsthat 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, givenapplication 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 arenever 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 besent 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 duringthe interview, the case must be sent back to a different visa officer to hold another interview and reconsider the appellant’s 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 clearlyrelevant 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 panel’s

decision is final and binding, and its role is adjudicative; the decision clearly impacts onthe member’s 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: it’s a final decision

3. Importance of decision to individual affected: Decision that directly impacts themember’s livelihood

4.

Legitimate expectations of party challenging the decision: anticipation of highstandard of fairness5. Nature of deference accorded the body: Didn’t 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 didn’t happen, andthe appellant was not told that the panel didn’t receive this info. The panel may havetaken 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, theerror would likely be a “technical irregularity”, meaning that the decision isn’tnecessarily void.

REMEDY: “Appeal allowed. The medical review panel’s decision is quashed and thematter 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 don’t 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 theresponse 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 theduty 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 publicinterest 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 andPlanning 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 Congregation’s 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 Congregation’s first rezoning application, in doing so giving



rise to Congregation’s legitimate expectation that future applications would be carefullyconsidered.

(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 doesn’t carry much weight where there is no record to indicate that theMunicipality has actually engaged its expertise in evaluating the applications.

2nd Zoning Application: Congregation applied for rezoning a new lot. Municipalitydenied request summarily, without giving reasons. They noted that there were P-3 lots

available, but didn’t 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 weren’t 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 deniedapplication again, offering no reasons. This time didn’t 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 theimportance of the decision. M acted in a manner that was arbitrary. C’sapplications 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 didn’t 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. Thecommissioners 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 anadversarial role on the board champion consumer rights.

The board commissioned an accounting firm to provide cost analysis of NTC, and in lightof report of the Board, and decided to hold a public hearing. Prior to hearing, Wells had

described the pay/benefits of NTC’s executives as ludicrous/unconscionable.

The Board’s 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 appellant’s



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 wasn’t 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 whiminvestigate. 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 (Impartialityrequirement 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, statementsmanifesting 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 acommissioner 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 hearinglead 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. Itfollows 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 reliedon. 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. impartialityconcern)?

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 shouldn’t 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 don’t have the same wackoconcern – throwing out stuff that really isn’t material);

(2) As a general rule, all the members who will actually participate in the decision musthave 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 boardheard 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 caseaccording to one’s 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/wasn’t takendown/no minutes were taken

(no official document); didn’t challenge the facts; SCC agrees w/ Chairman. Full board

meeting wasn’t improper.

(b) I’ts ok to decide policy issues, if it’s the panel that’s 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 don’t apply a strict testsuch 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 financialinterest 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 hadn’t 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 membersof 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 they’ve heard. If there is consultation, that maygive rise to institutional bias.

Moore v New Brunswick Real Estate Assn:

FACTS: M was a licensed real estate agent who was charged w/ professional misconductfor failing to submit an offer to purchase to his client. A complaint was made, and the

matter was brought before the Real Estate Association’s 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. M’scounsel initially objected but eventually agreed to proceed w/ the issue. M found guilty.

ANALYSIS:

(1) Institutional Bias Test: It’s about how the tribunal operates as opposed to theidentity 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 can’t 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; it’s 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 tribunal’s 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 thedecision 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 inwages by Bell. Bell thought that the arrangement between the Tribunal and theoverseeing 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) theysay tribunal’s chairperson’s 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 ruleagainst 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, andhaving thought the matter through conclude? But the requirements aren’t 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 (it’s about the structure,e.g., is there adequate independence from the government?). In determining thedegree 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 theinterests 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 (Morecourt-like, more separation

Executive) fromexecutive)

———————————————————————————————————

————————————————

- 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

Bell’s 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 Tribunal’simpartiality by raising a reasonable apprehension of bias (in Bell’s words, that it usurpsthe 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 : Bell’s argumentassumes 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. Courtsays 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 thatcontext, 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 doesn’t in this case: (1) Thisoverlapping of functions in a single administrative agency is not unusual and doesn’t onits 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 wouldhave been interpreted in a way that was sensitive to the needs of the public/country, andthus, 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) Belldidn’t provide any evidence of this practice; (2) Since the guidelines that apply to Bellwere 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 Chairperson’s Power to Extend Appointments: Bell challenges the

Chairperson’s power to extend appointments of Tribunal members in ongoing inquiries,saying that it threatens members’ impartiality (e.g. members may feel pressure to adoptthe 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 allowingmembers 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 fallsin assessment and what doesn’t. CP argued they don’t have jurisdiction to put them onassessment.

They point to a lack of certainty of tenure of tribunal members and the uncertainty as towhether 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 tribunalmembers 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 shouldn’t be based on the decision onemakes. 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, theyshouldn’t 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 reachedconclusions contrary to interests of band)

(ii) Chiefs and band councils select members of their tribunals, in addition to controllingtheir 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 thatmembers 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 didn’t haverequisite 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 tribunal’s process tocomport w/ principles of natural justice. Must defer to the legislator’s 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 don’t have the same level of independence of executive ascourts

(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 it’s 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 amatter of principle to administrative tribunals, given the preamble’s reference to aconstitution 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 impartialtribunal)? 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 thesedecisions, 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 doesn’t 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 toJURISDICITON, 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 itcomes 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 that’s a questionof law that the court supervises.

(4) Privative clauses indicate level of deference but in the end, that doesn’t prevent thecourt 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 legislaturegives 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 admin’s 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 strikinge/ee’s 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 whatthey call a jurisdictional question. This meant that lawyers were debating over what a

jurisdictional question was. Labelling something as jurisdictional just isnt’ clear and it’simpractical

- Court here said that when you’re interpreting legislative provisions, there will often bemore 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 isn’t 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 sounreasonable 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 badfaith, 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 Board’s 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 can’treally 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 didn’t 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 haven’t left the categories of jurisdiction out completely as we will see theycreep

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”, anddetermining 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 isn’t 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 Southam’s 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 hadsomewhat 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 didn’t consider expertevidence 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 nodeference to the Tribunal’s finding about the dimensions of the relevant market andsubstituting one of its findings for its own (standard of review); Second, whether the Fed

Court erred in refusing to set aside the Tribunal’s 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 purposeand 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 andhow”, 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 asthe 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 womanand 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

Tribunal’s 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 thestandard 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 abouteconomics 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 tooverwhelming 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 waswhether the conviction disqualified him from having a Convention Refugee status.

ANALYSIS:

- Clear statement that “preliminary question” is not the issue. Jurisdiction by itself nolonger 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 tribunal’s decision, unless other factorsstrongly 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 court’s expertise relatively (i.e is thissomething the courts do all the time?) (c) Identify the nature of the issue in

question relative to the expertise (does the tribunal’s expertise relate to the issuein question)?

E.g.: (i) Human rights commissions’ expertise relative to courts is not greater, b/c courtsdeal with these issues; (ii) Securities commissions (interpreting provisions of securities

act) have greater expertise – its not drawing on legal principles, and is drawing ontechnical info; if its more statutory interpretation in general, than not expertise).

1. Purpose of Act as whole, and relevant provision in particular: Is the purposeto 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; it’s not within thecourts 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, whatis 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; andthat review wouldn’t serve any purpose if court could defer to incorrect decisions of theBoard.

(ii) No privative clause

(iii) Not a question necessarily w/in expertise of board. The court is just as qualified toanswer 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 appellant’s College found that the respondent

physician had taken physical and emotional advantage of one of his female patients andwas guilty of infamous conduct. In reaching its conclusion that sexual acts had occurred,the committee stated that it accepted the patient’s evidence and disbelieved that of the

respondent. On an appeal under the Act the reviewing judge set aside the committee’sdecision disagreeing with the finding with respect to credibility. The CA dismissed theCollege’s appeal as it could not conclude that the reviewing judge had er red.

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 theassessment 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) Courtmust 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 generallysuggest 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 (particularlywhere the decision will be one of great precedential value); Mixed fact and law = if factintensive, 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 you’re doing an appeal of the first instance

decision, its going to be an appellate standard (question of law/fact etc – appellatestandard of correctness).

Chamberlain v Surrey School District:

Facts: School Board (the administrative decision maker) passed resolution banning bookswhich 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:

Majority’s 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 deference3. 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 materialswill best serve their needs. But, the School Act’s requirement that the discretionto 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 involvingtolerance and diversity.

4. Nature of the problem: Accommodating community concerns and tolerance – less deference

- The 4 factors suggest a reasonableness simpliciter standard

HELD – The Board’s decision not to approve the proposed books de pecting 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. Theythought the decision was reasonable.

Dissent (Lebel) – Held that we are concerned with is whether it’s a legal decision or not,given that it is an elected body who has political accountability. You wouldn’t expect tosee privative clause, b/c they are separate from the Courts, so doesn’t make sense of

speaking of the effect of a lack of one: “The insulation of the judicial and politicalspheres from each other does not only protect our independent judiciary from politicalinterference, 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 relevantstatute granted it authority over the Utilities poles (since it found that the phrase “thesupporting 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 statutoryright of appeal in this case suggests a more searching standard of review

(2) Relative expertise: (a) Remember that in determining the standard of review, thefocus 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 su pporting structure of a

transmission line”. No technical meaning – simply stat interpretation; (b) CRTC’sexpertise 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; it’s 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 ageneral question of CRTC’s 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

agency’s decision (it will drive towards the correctness standard (by combining a straightstatutory 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 canlimit the agency’s ability to give the legislation at issue the full import intended bylegislature

- 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 deference2. 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 expertiserelative 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

isn’t merely a legal question, as it draws heavily on the CRTC’s 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 isn’t simply one of statutory interpretation3. 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 adjudicator’s

specialized area of expertise, it is unnecessary to employ the pragmatic and functionalanalysis 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 andthe 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 manyacceptable 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 simpleirrationality 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, we’ve turned judicial on its

head. We start with whether there are reasons to support. So from this perspective, can’thave 2 standards: its either we have reasons to support, or there are not (we cannot say

that we don’t have adequate reasons and continue the analysis, as that would offend therule of law)

Comment (Summary of Lebel J): The dual thesis of Lebel J’s critique is that themodern 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 court’s constitutional dutyto 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 bereinstated. 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 besanctioned 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 renderedthe 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 distinctquestions 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 arbitrator’s interpretation of the legislation may be reviewable on adifferent standard than the rest of the decision. The two statues in this case give rise toseparate 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 didn’t intend for this to be

in arbitrators jurisdiction, and therefore question of which legislation applies isn’t part of their core function, and therefore we should be revisiting it on a correctnessstandard. [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 aquestion 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 deferentialstandard 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 themajority 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 maker’s 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 thereasoning must independently pass a test for reasonableness (as there are more than oneway 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 accessibilityrequirements. The Canadian Transportation Agency was responsible for determining

whether there was an undue obstacle to the mobility of persons with disabilities. Wheresuch obstacles are found to exist, the Agency is responsible for determining corrective

measures. Contrary to Agency’s directions, VIA made modifications to its new cars, and

would not provide cost estimates to the Agency. The Agency ultimately ordered that 30of 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 body’s expertise

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

Standard of Review:

- At the Federal Court level, it was held that the Agency’s interpretation of VIA’s 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 Agency’s decision on theissue 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 ambitof jurisdictional review

Dissent –

Segmentation:

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

doesn’t allow for a diverse standard of review. Asking for greater flexibility; need tozero in on specific proportions of decision. If we look at decision as whole, won’t beable to tailor it in that way.

Standard of Review:

- Consideration of all the factors points to no deference accorded to Agency’s decision

- The Agency’s jurisdiction and determination of human rights principles are questions of

pure law. Because these exact issues haven’t been determined before, result will haveimportant precedential value

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

- On questions of jurisdiction and human rights law principles, Agency doesn’t havegreater 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 Agency’s jurisdiction and determination of applicable human rights law

do not

- On balance, the questions of the Agency’s 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 amechanical 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 (afull 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 indicategreater 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 suchcircumstances 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 legislature’s intent for thelegislation 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 discreteissue 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 CRTC’s work involves theelaboration 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 “thesupporting structure of a transmission line” was held to be a matter for which nodeference 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 theexpertise 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 it’s regulation, thecurriculum guidelines and the principles of toleranceunderlying 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. Dfiled a grievance with respect to his discharge, citing that the reasons for the employer’sdissatisfaction were not made known; that he did not receive a reasonable opportunity to

respond to the employer’s concerns; that the employer’s actions were w/out

notice/procedural fairness; and the length of the notice period was inadequate. Thegrievance 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 lessdeference overall (we are not simply adopting the lower standard of reasonableness)

(a) Reasonableness:

- The “reasonableness” standard is underpinned by principle that there may be morethan 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 isn’t 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 showdeference to the decision maker’s 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 andwhether 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 someissue 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 preservedand neither Parliament nor any legislature can completely remove courts’ power toreview 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 it’s one of fact, discretion or policy, deferencewill 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 tribunal’sstatutory 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; can’t 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) TheConstitution restricts the legislator’s ability to allocate issues to admin bodies which s 96has 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 outcomeunless the applicant can show that the clause, properly interpreted, permits it or there issome 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 deferenceformerly 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, arange 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 beconsidered 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, Parliament’s 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 interpretlaws 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 body’s 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 tribunal’s decision is within a range of reasonable outcomes amongwhich admin decision maker can choose, then court should not interfere. If they makedecisions outside statutory authority, or if legislation purports to confer jurisdiction is

unconstitutional, or if deeply flawed reasoning process leads to unreasonable result, thenthat’s 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 isn’t. 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 tribunal’s decision, rather than the statute itself, it will be becausethe 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 constitutionalchallenge, and if so, the tribunals decision must be correct (Martin)

o My summary: In Multani, the decision couldn’t be challenged under

admin law because it was within the DM’s 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 DM’s decision with

requirements of the Charter at issue, rather than the decision’s

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 dismissedunfairly. Remedy crafted was that Slaight was forbidden from making any negative

comments about D’s 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 freeexpression 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: M’s religious beliefs requires him to wear a kirpan at all times. His schoolsgoverning board held that wearing a kirpan violated s 5 of the school’s 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, andnow 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 thecompliance of the commissioners’ decision w/ requirements of Charter that is central, notthe 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, froman 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 upholdingthe original decision infringed M’s 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 thecorrectness standard.

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

- Infringement of Charter right : Commissioners’ decision prohibiting M from wearingkirpan 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 body’s 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 tothe school board’s decision, which had an impact on freedom of religion, right of equalityand right to physical inviolability (taking approach in TWU and

Chamberlain). Reasonableness standard applies. The prohibition on wearing of a kirpancannot 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 approachmust be retained for reviewing decisions and orders made by admin bodies. A

constitutional analysis must be carried out when reviewing the validity of enforceabilityof a norm such as a law.

(a) Review of Lamer J’s 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 individual’s rights inrelation 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 “lawshould 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 notattempting 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 you’re 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 tribunal’s 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/ee’sdecision 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 themanner 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, it’s necessary toleave aside the administrative standard of review and consider whether the decisioninfringes freedom of expression

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

back.

- Does the Decision infringe W’s 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 democraticsociety; 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 tribunal’s 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 actor’s 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 Scotia’s Worker’s Compensation Act and its regulations excluded

chronic pain sufferers from receiving benefits under the regular workers’ compensationsystem 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 totwo 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 Tribunal’s 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 validityof 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 beforeit”). 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 administrativesystem (e.g. does the tribunal’s

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 tribunal’s 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 shouldn’t be used to override aclear implication of

jurisdiction of questions of law – while they may be helpful to confirm legislature’sintent, 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 theCharter. 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 toanother 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 decideconstitutional 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 that’s where partiesarguments were (but court didn’t have to) (provision stated that “subject to the rights of

appeal provided in Act, the Board has exclusive jurisdiction to inquire into, hear anddetermine 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 legislature’s intentto create a scheme for resolving workers’ compensation disputes



(b) The Appeals Tribunal’s jurisdiction extends beyond the Act itself, to other questionsof statutory interpretation arising from the operation of the workers’ compensationscheme;

(c) Appeals Tribunal is f ully adjudicative; it’s independent of the Board, it has powers to

summons witnesses, compel testimony, require production of documents, punish personsfor 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 theAppeals 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 nospecial 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, theycan 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 isconstitutionally invalid, it ts invalid ab initio. So, invalid provisions don’t

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 andfreedoms 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 don’t have jurisdiction to apply theconstitution, 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 thoroughunderstanding 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 s1. 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 court4. Not usurping s 96 courts’ powers: Tribunal making decision of constitutionalvalidity will still be reviewed by courts and therefore will not be usurping s 96

power of courts. Doesn’t interfere with role of judiciary as the arbiter of theconstitution

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 court’s 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 beeninfringed 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 determiningwhether 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 directaccess to charter remedies in the tribunal charged with deciding their case (you don’tneed 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 doesn’t 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 applicationsmade 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 ruleof 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 hasn’t been always seen as intrinsically unfair. Given the extent of regulation and state exercise of power, Dicey’s version isn’t really plausible.

How can Discretion in Administrative Powers be Justified?

1.

Legislatures can’t foresee each individual circumstances – can’t develop acomprehensive set of rules that apply in all circumstances, so we need to have thatarea 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); knowledgeof individual circumstances in specific countries, for example, isn’t within theexpertise 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 bailfor arrested Jehovah’s Witnesses who were illegally distributing pamphlets. This agitated

Premier Duplessis. He instructed liquor Commission to remove R’s 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 Duplessis’s orders. Second, the authorities had been motivated by a desire tocurb what they perceived to be seditious activities of the Jehovah’s 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 residentstatus. Four children (who were all Canadian citizens) while living in Canada. B appliedfor 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 adiscretionary 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 byParliament 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 discretionevidenced by the statutory language; yet, the absence of a privative clause, and theindividual – 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 seriousquestion of general importance, which is the question of the approach to be taken to the

interests of children. The officer’s notes indicate that the approach taken to the children’sinterests 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. Eventhough provisions have no direct application in Canadian law, the values may inform

contextual approach to stat interpretation. Note that the doctrine of legitimateexpectations 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 intoaccount 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 accountthe 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 howdiscretion can be used improperly).

Suresh v Canada (Limits scope of Baker – can’t 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 theimmigration officer’s 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 constitutethis threat.

ISSUES: First, whether this provision was constitutional. Second and third questionsdealt with the discretionary issue, namely whether S’s presence in Canada constitutes adanger 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 doesn’t.

(1) The Minister’s 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

Minister’s 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 havecome 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 court’s 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 factorsdifferently and arrived at a different conclusion

- “Parliament’s task is to establish the criteria and procedures governing deportation,within limits of Constitution; The Minister’s task is to make a decision that conforms to

Parliament’s 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) Minister’s decision on whether the refugee faces a substantial risk of torture upondeportation.

- This question is largely a fact driven inquiry, and requires consideration of human rightsrecord 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 thathave 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 can’t 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 can’t 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 Minister’s 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 thescheme/object of Act and with intention of Parliament

- Discretion of Minister is constrained by the scheme and object of the HLDAA as awhole, 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 Minister’s record (what did the Minister say about what the purpose was to be –

e.g. in the Minister’s

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 weARE 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 (whenhe 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

Minister’s 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 bespelled 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, internationalinstruments which give interpret weight etc.).

- Relevant factors should be relatively explicit, and shouldn’t 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 thesame 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 statesthat 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, independenceand 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 Minister’s appointments as immediately or obviouslydefective, particularly when the factors are not themselves immediately or obviouslyascertainable

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 won’t 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 bedeviated 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 doesn’t need an explicit grant of statutoryauthority to make soft law.

Why We Have Delegated Legislative Authority

- Legislature can’t do it all

- Expertise (for highly technical areas, wouldn’t want elected members of parliamentwhere they don’t have the expertise, and they don’t 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 isn’t 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 don’t 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 we’re 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 haven’t done it, then

wouldn’t be able to bring mandamus (but always looking at statute). So, when looking at law making ability, it’s 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 wereupset, 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 conductrelates to [a gas vendor]”

- Appellant says this doesn’t give Board jurisdiction to do what it did; they say it

limits to gover ning only the part of a distributor’s conduct that relates to its businessrelationship w/ vendor, excluding billing provisions which governs conduct with

customers. The Board’s rule making power under s 44(1) states that: “The Board maymake 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 accessto transmission, distribution and storage services provided by a gas transmitted, gasdistri butor or storage company”

- There is nothing in the language to suggest that narrow view. Further, such areading 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 distributorsstill as distributors

- Second, billing provisions go beyond s 44(1)(b), b/c they don’t regulate an existingfield 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) cannotsustain a rule that creates wholesale distributors. Court said GDAR doesn’t takedistributors 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 Board’s 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 regulationviolates 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, asopposed 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 notrequire that refugee claimants always have the right to be questioned first by their

counsel. RPD dismissed T’s 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. RPD’s decision was set aside and matter remittedto another member for re-determination on basis that Guideline is an invalid fetter on theRPD’s discretion in the conduct of the hearing.



Guideline 7:

- Rationale behind G 7: Before issue of G 7, order of questioning was within discretionof individual members, and was decided, in different cities, on an ad hoc basis. The

Board didn’t 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 mustinclude 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 aformal rule for amending procedure is reviewable for patent unreasonableness

Does G 7 prescribe a hearing procedure that breach claimant’s right to procedural

fairness?

- The procedure prescribed by G 7 is not on its face in breach of the Board’s 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 acompulsory 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) It’s name (does it say it’s a guideline/rule/regulation)?

(b) Look at its mandate and ask whether this norm needs to be given the force of law inorder 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 isn’tdeterminative (hard law must



have explicit grant of authority);

(d) Apply basic statutory interpretation techniques, searching for intention of legislature(but if words aren’t clear,

can look to the context in which the statute was created, e.g. committee hearings, todetermine 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 they’re notnecessarily 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 wasthe 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 wouldn’tmisunderstand 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 Board’s police on use of guidelines says “the guidelinesapply 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 theexercise 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 Chair’s 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 legislativeinstrument (the guideline)

HELD – Dismiss T’s 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 deductedfrom 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 wasn’t complyingagreement 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 itillegal wouldn’t necessarily impact province (it was a bit speculative – potential problemswith causal relationship); the declaration sought wouldn’t necessarily address F’sconcerns about having deductions from welfare payments; even in the face of that

remedy, they could still administer plan; so it wouldn’t have the effect of correctingharm/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 wasrealistic to get A-

G’s 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 interestin 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 theconditions 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 statusof 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 bebrought 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 byissue. 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 beconsidered 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 motionthat 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 tocourt): Gov says detainees should

bring the application, but the prospect of this happening is slim). But individuals handedover to Afghan

government do not have any meaningful ability to mount a challenge in this country withrespect to conduct of

Canadian Forces



Any Basis for Judicial Review?

- Respondents argued that even if standing exists, AIC has no chance of success as itdoes not raise a “matter” in respect of which a remedy is available under the FederalCourts 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. Assuch, it doesn’t involve a “decision, order, act or proceeding” as contemplated by s18.1(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 theCourt 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 isdismissed

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 W’s motion. Chief, who was both investigator

and could hear complaints, wanted to challenge the hearing officer’s decision. Under the

PSA, Chief has no right to appeal officer’s decision. But the Chief applied for judicialreview.

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 seeingthe Chief’s 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 hisdelegate by way of appeal, he should not be able to mount a similar attack through the

vehicle of judicial review.



- Given the Chief’s pervasive role in the process, absence of right of appeal, a rejectionof 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 makerbeing 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. realestate 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. Paneldidn’t 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 anddeliberately 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 mayinclude 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 iscarried 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

Legislature’s 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 entrée tothe 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 dependingon wording of statute, but on judicial review, court won’t 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/w1988-89. Respondent filed notices of objection. In 2005, they applied for judicial

review of Crown’s decision to use its discretion to assess them under s 160 ITA, onground 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 strikeapp for judicial review.

ANALYSIS:

- Two reasons why JR was struck: (1) Applicant hadn’t 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 don’t 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 don’t 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 becomeunhealthily 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 complaint’s and grievance process.

ANALYSIS: Whether Court should decline to hear this matter b/c applicant’s did notutilize the internal complaints process?

- There are strong policy and statutory reasons for requiring inmates to use internalcomplaints 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 H’s attempt to shift the burden to the ratepayers in theVillage 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 todo

- The courts will not dictate how the delegate should decide under mandamus, but willorders 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 act2. 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, fileaffidavit 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

(don’t 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

can’t 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 alreadymade, 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 therewas 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 remedy2. 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 dutyof government actor to do X. But, in denying remedy based on balance of

convenience, Court says they don’t 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 won’t grantdiscretionary 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 hasn’t yet been fully implanted,might be a

consideration. But, in order for policy change to be a relevant consideration, mustestablish that

intent to change the policy was in place BEFORE the request for application to decisionmaker.

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 wasmade, there was



no bar to rezoning application – it ought to have been issued, but it wasn’t. Then, policychanges to

by law made it impossible. Decision maker pointed to change in law, to say that this

change came

into effect and now we won’t 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 decisionshas been granted to another decision maker

- Before looking at JR remedies, look at statute for internal mechanisms of appeal, whereit 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 isused 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 toforce 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 hassatisfied 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, asubsequent 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 maker’s discretion is characterized as being

unqualified/absolute/permissive

(iii) in exercise of a fettered discretion, decision maker must act upon relevantconsiderations



(iv) mandamus is unavailable to compel the exercise of a fettered discretion in a

particular way

(v) mandamus is only available when the decision maker’s discretion is “spent”, i.e., theapplicant 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 theyare 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 dismissalof 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 Minister’s 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 Minister’s discretion. The lawshouldn’t preclude the possibility of recognizing the Minister’s right to refuse to performa 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 sucha 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 Court’s Discretion includes discretion to refuse mandamus on the groundsof “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 individual’s right

to pursue personal economic interests; (3)

Documents

Canadian Administrative Law (NCA) Review