IntroductionSOME CRITICAL UNDERLYING QUESTIONS TO KEEP IN MINDThroughout the course, consider:

the apparent role of the rule of law in shaping administrative lawthe validity of the “functionalist critique” of the judicial role in administrative law the extent to which Canadian courts appear to have recognized and responded to “functionalist” concerns

SOME SPECIFIC QUESTIONS IN THIS REGARD INCLUDE...To what extent do courts tend to impose inappropriate “court like” processes on administrative tribunals?

E.g. In Baker developed 5 factor testTo what extent (and how) do judicial decisions in administrative law tend to favour the status quo and property interests to the detriment of state attempts to regulate in the public interest and to redistribute wealth?

Tend to see certain interest favoured in admin law over other interests E.g. private property interests tend to be highly protectedWhereas newer interests such as welfare rights tend to be less strongly protected

To what extent do courts claim to have a monopoly on “correct” interpretations of statute law in the context of undertaking substantive review of administrative decisions?

Tendency in past decades has been towards accepting the courts are not always in the best position to give the best answers on questions of law – growing focus on institutional expertise

To what extent have Canadian courts attempted to strike a balance between “rule of law concerns” and “functionalist concerns”? (How have they attempted to do this? Have they achieved a balance that you judge to be appropriate?)

Particularly appears in substantive reviewAN OVERARCHING QUESTION...

What do you think the goals and values of administrative law and judicial review of administrative action should be and how can those values and goals be achieved?

Some suggest that courts applying and developing administrative law should (among other things):

Ensure procedural openness and enhance accountability in public administration

E.g. encourage broader public participation in admin d/makingProtect the interests of the intended beneficiaries of an administrative program

E.g. closely scrutinize admin decisions that seem contrary to the interests of intended beneficiaries)

Prevent administrative agencies from subverting the clear meaning of an enabling statute (making due allowance for agency expertise, linguistic ambiguity, and legislative purpose)

OTHER CURRENT CONCERNS IN ADMIN LAWMalleability of administrative law “tests” lead to a lack of certainty and predictability in outcomes when administrative decisions are challenged in the courts

Sometime specific step-wise test will be set out (e.g. in Baker), but often uncertain how heavily each of these factors should be weighed

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Claims for “administrative independence”: to what extent should some administrative decision-makers enjoy guarantees of independence from control by the executive branch? which tribunals are deserving of this kind of “independence”? does the current state of administrative law provide for a desirable level of independence for tribunals?

Administrative Law - General PurposesThe major and sometimes conflicting concerns of administrative law include:

To control governmental power as exercised by the executive and administrative branches of the state

to confine govt power to its proper scope Courts generally define the boundaries of the law

to curb potential for abuses of powerto ensure proper procedures are followed in the exercise of powers that affect the rights/interests of citizens

Generally the state making decisions that could affect individuals in a negative wayBut procedures must be applied in a flexible way, sensitive to the particular context

to ensure performance of mandatory statutory dutiesE.g. remedy of mandamus

To foster accountability in the administrative and executive branches of government and greater participation by interested parties in the decision-making processes of government that affect them

Relationship between the citizen and the state – what rights does the individual have against the state (procedural protections)

E.g. democratic / participatory rightsTo ensure that the administrative branch of government effectively performs the tasks assigned to it by the legislature

Consider whether the ways in which courts intervene is actually helpfulE.g. whether tribunals are required follow court like procedures (however, not always appropriate) In some contexts, procedural protections may be very important when a lot is

at stake for the individual (e.g. mental health, child custody, etc.) But in some circumstances, a very high volume of cases may make high level

procedural requirements too burdensome, especially where there is nothing very important at stake

Administrative Law vs. Constitutional Law

Administrative law can be distinguished from Constitutional Law as a subject of study ... but, in a broad sense, admin law can also be seen as a subset of constitutional law

unlike Constitutional Law, admin law is NOT usually concerned with the validity or vires of statutes admin law is primarily concerned with exercises of power by governmental officials and agencies that are made under statutory authority

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i.e. admin law is mostly concerned with exercises of powers that have been delegated by the legislature to government officials and agencies through statutes (control of the exercise of statutory powers)more rarely, admin law is also concerned with certain of the powers that may be exercised by government under Crown prerogative

However, issues of Crown Prerogative are often not justiciable

Administrative Law is rooted in fundamental constitutional principles such as:the rule of law

Any government actor and the government itself is subject to the lawJudges establish what the rule of law requiresSee works of Dicey

legislative supremacy/Parliamentary sovereignty (subject to the constitutional division of powers and the Charter)the constitutionally protected and inherent jurisdiction of s. 96 superior courts and the principles of judicial independence

There is also a growing intersection between Constitutional and Administrative law in certain contexts because of the Charter

s.7 of the Charter has become a relevant focus of study in administrative law in relation to the guarantees of procedural fairness that it provides in certain contexts

Who Are Administrative Decision-Makers?Administrative Law is primarily concerned with individuals and bodies or agencies exercising powers under statutes (delegated decision-making authority):

administrative agencies tribunals, boards, commissions (e.g. Workers Compensation Board, Labour Relations Board, Human Rights Commission)

public inquiries e.g. Krever Commission on the blood supply

professional associations exercising statutory powers of self-regulation e.g. Law Society, College of Physicians and Surgeons

municipal gov't agencies and officials, school boardsElected bodies (affects concept of bias)

Cabinet (Governor in Council, Lieutenant Governors in Council) and individual Ministers of the Crowndepartmental officials (usually exercising delegated power in the name of the Minister)

The Scope of Administrative Law and the Public/Private Dichotomy – Uncertain Boundaries...

Becoming a bigger issue as governments continue to privatize traditionally governmental areas

The “boundaries” of Administrative Law are not always easy to define:Private corporations that merely receive their existence by incorporation under general incorporation statutes do not exercise statutory powers in the sense that brings them within the ambit of administrative law

The fact that incorporation is administered by the state, this does not make corporations subject to admin law principles

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Bodies such as universities (or hospitals) have sometimes in the past been treated as though they were private corporations rather than public bodies; however, now they are usually treated as decision-makers that are bound by admin law principles in much of what they do (e.g. in making decisions about the tenure and promotion of Faculty members or decisions about student discipline)

E.g. generally, subject to laws of procedural fairness in its relationship to students and staff

Some of the principles of admin law are extended to so-called "domestic tribunals" – “private” bodies that do not exercise statutory powers but that do hold quasi-monopolistic powers in relation to the governance of certain spheres of public activity e.g. sports associations, clubs, religious bodies

In this realm, courts will often apply the principles of administrative law that are related to procedural propriety – that is, such tribunals may have obligations to deal with their members in a manner that is procedurally fair

Not all actions of government are dealt with by the application of administrative law principles

For example, where the government acts in ways that are similar to the private sector, such as purchasing goods or dealing with employees, the principles of contract law or tort law or employment and labour law may be more relevant and administrative law principles and remedies may not be applicable

The Wide Range of Administrative AgenciesThe 20th century saw the rise of “the regulatory state” and a consequent growth in administrative agencies of various kinds engaged in the delivery of a wide variety of public programs under statutory authority such as:

industry regulatorselectricity/gasrailway/transportation telephone/telecommunications (t.v. and radio)agricultural marketing boardsfood and drugs/liquor (licensing)

land use regulatorsdrains, sewersfire safetyzoning/dwelling densitypollution/environmental impactforest, mining and industry practices

consumer protection and health servicesfood and drugretail productsfinancial institutionshuman rights public medical and drug plans

employment and income supportlabour relationsemployment standards

health and safety/workers compensation unemployment insurance/CPPhuman rights/employment equitysocial welfare/housing

economic regulation (general)

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competition law (mergers)securities marketingtaxation

trades and professions(licensing and discipline bodies)law/medicine/dentistry/nursingreal estate taxi driversstreet vendors/direct sellers

social controlprisons/parolepsychiatric institutionsimmigration and deportation

The Wide Range of Administrative Tools and Decisions Administrative agencies differ widely in the kinds of administrative tools they use to implement their mandates and in the kinds of decision-making they may be involved in. Most are involved in use of more than one kind of tool and may make various kinds of decisions – they almost always are multi-functional

Some regulate relationships or resolve disputes between private persons on an individual case by case basis through adjudication much like courts

E.g. human rights agencies; labour relations arbitratorsSome give approvals/permits/licenses to individuals, groups, corporations, to allow them to do certain things

E.g. CRTC radio and T.V. licensing, liquor licensing, environmental impact assessments, zoning approvals

Some confer benefits on those who meet the statutory qualifications to receive them

E.g. social welfare benefits; workers comp; unemployment insurance)Some impose restrictions/penalties on individuals or grant relief from them

E.g. prison and parole decisions; conditions on licensing; professional disciplinary boards

Some are primarily involved in broad policy making as opposed to making decisions in individual cases (regulatory rule making)Some do not make final decisions but only investigate and report the products of the investigation, with or without making recommendations to another decision-maker who has the authority to decide the matter

Independent Administrative AgenciesWhat Are “Independent" Administrative Agencies (And Why Do They Exist)?These agencies are within the executive branch, but are recognized as straddling the boundary between the executive and judicial branch due to their quasi-judicial function. Generally look at two questions:

Why were they created (what is their function)?Why did they choose to have an administrative agency perform the function rather than the courts?

Common features of "independent" administrative agencies (boards, commissions, tribunals):

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Absence of direct control by the executive: they all enjoy some measure of "distance" and freedom from direct control by the Cabinet, the responsible Minister, and departmental officials in making decisionsHearing processes: they typically engage in some sort of hearing process before making a particular decision or policy (although the nature of these processes may vary widely from agency to agency)

More specific, e.g. for granting licenses or statusGeneral, such as content of Canadian programming for the CRTC

Individualized decision-making: they typically make decisions in individual cases (i.e. they apply the provisions of a statutory scheme to the situation of particular individuals or groups)Specialization: they operate within a particular statutory scheme and usually deal with only one statute or even with only a part of a statute (they deliver a particular public program or part of one)

Recognizing that the expertise of the tribunal goes much beyond the expertise of the court

Why might the legislature assign decision-making or policy development to an independent administrative agency rather than to a government department?

Legitimacy: there may be a need to "insulate" the decision-making or policy development process from partisan politics and pressures to attain more legitimacy for the decisions made

If you create a bit of distance, improves perception of neutrality by distancing from the bureaucracyE.g. where the decision "pits the government against the citizen" (b/c it concerns eligibility for a benefit or imposition of a liability), the credibility, legitimacy, and "acceptability" of the decisions made or policies developed may be enhanced if the matter is distanced from the bureaucracy

Better decisions: decisions reached may be better in quality because the administrative agency may be better able to

draw upon the expertise needed to make decisions develop more open and participatory processes to hear those who are interested HOWEVER (Crane): government departments could also be capable of making informed, expert decisions

Expediency: it is sometimes more convenient for govt to shed direct political responsibility for decision-making in sensitive policy areas (e.g. to avoid unfavourable publicity associated with the decision-making in question)

Why might the legislature assign decision-making to an independent administrative agency rather than a court?Government must have had certain reasons in mind when it decided to assign the subject matter to an administrative agency – affects how jurisprudence will be interpreted.

Policy laden subject-matter: the nature of decisions to be made may be deemed inappropriate for adjudication

Multi-faceted policy laden matters are not well suited to resolution through an adversarial judicial system (e.g. environmental impact assessments, setting utility rates; setting marketing quotas; licensing vendors; etc.)

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Tribunals can be mandated to develop policy and to initiate processes in that respect

Volume of decisions: the number of decisions to be made would clog the courts e.g. appeals from social welfare denials or workers compensation claims

Procedural and efficiency concerns: courts are formal, slow, expensive and require lawyers

A more informal, more accessible, quicker and less expensive decision-making process may be desiredOften comes into effect with procedural fairness issues – if the tribunal must apply the same standards as courts, lose many of the advantages of speed and efficiency

Expertise and specialization - the matter to be decided may be a matter that requires specialized expertise rather than the general legal expertise of a judge e.g. environmental assessments; financial regulation

“Judges are generalists”

Ideology: sometimes the perceived ideology of the judiciary may be thought to be an impediment to the legitimacy and effectiveness of the statutory scheme

E.g. labour relations - courts did not have much legitimacy in the eyes of labour unions because of the history of the court favouring property and contract rights over workers rights

Have used privative clauses to prevent the courts from being involved

Broader public participation is desired: the legislature may want the decision-maker to have input from a wide cross-section of the public before making a decision and courts are not well set up to deal with that kind of participation

Control of Government PowersNon-Judicial Mechanisms for Control of Government Powers

General legislative oversight and politics (success and application of these processes varies widely)

scrutiny of legislation before enactmentreview of regulations by standing committeesscrutiny of appointments to agenciesannual or special reports to Parl by agenciesquestions to Minister in the legislatureelections and electoral politics

Ombudsman (has power to receive complaints from individuals who feel they have been wronged by the government, may investigate, but have no authority to create binding resolutions, but may shed light on the issue and create pressure for change), access to information legislationInformal internal control mechanisms

day to day management and accounting policies and procedures (a government’s general “culture” and the role of government lawyers is an important factor in control)internal reviews of operations and policiesinternal reviews and reconsideration of individual decisions

Formal non-judicial appeal mechanismsFormal internal appeal mechanisms i.e. statutory appeals to other administrative bodies or to the Minister, or to Cabinet

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Judicial Mechanisms for Control of Administrative Action Appeals

There is no inherent right to appeal – therefore, must be found in statute to existMust look for the right to appeal in the statute

Appeals to a court from an administrative decision may be provided for by statute [for there to be any such appeal rights, there must be a statutory provision creating the appeal and setting out its parameters]

“Judicial review” jurisdiction of the courtsSuperior courts in the provinces exercise a power to engage in judicial review of administrative action that is, in its origins, a common law power exercised as a matter of the superior courts’ inherent supervisory jurisdiction over “inferior tribunals”This jurisdiction is constitutionally protected as part of the inherent powers of superior courts under s.96 of the C.A. 1867: Crevier SCC,1981In the federal realm, this kind of jurisdiction is exercised by the Federal Court operating under the powers granted to it in the Federal Court Act

“Original jurisdiction" of the courtsGovernment action may breach contract or constitute a court, so you can also sue the government under contract or tort lawSometimes an administrative action may amount to a tort or a breach of contract or a trespass to property (etc.) or a Charter breach; if so, the matter can be brought before the courts in an “ordinary” court action

Primary Grounds for Judicial ReviewProcedural impropriety - judicial review of the manner in which statutory powers of decision are exercised and by whom they have been exercised:

breach of procedural fairness obligations breach of the “rule against bias”lack of the requisite degree of independenceimproperly constituted or authorized d/maker

"Substantive" illegality and irrationality - review of the substantive adequacy of the factual and legal basis of decisions made under statutory authority (review of “the merits” of the decision). Grounds for review, depending on the circumstances, include:

Errors made in interpreting the scope and meaning of the statutory powers (errors in interpreting the enabling legislation which may be characterized as errors of law or jurisdiction) Reviewable errors of fact (e.g. deciding without a sufficient evidentiary basis)Abuse of discretionary powers (unreasonable or unauthorized exercises of discretion)Unconstitutional exercises of power (breach of division of powers or Charter violations) [these are governed by Constitutional Law]

Overview of Administrative Law RemediesHistorically At Common Law

Exercise of the supervisory jurisdiction of the superior courts in England was largely based on a number of special remedies that were reserved for public law cases involving the exercise of public duties and powers

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These remedies were known as the prerogative writs and 3 of them were particularly important:

certiorari: an order that quashes or sets aside a decisionprohibition: an order that prohibits a tribunal from proceedingmandamus: an order requires the performance of a public duty

Each of these writs were discretionary and could be issued only by a superior court; their essential purpose was to ensure that bodies that had been given statutory powers did not exceed or abuse those powers

NOTE: another prerogative writ that has been important in both administrative law and other kinds of public law (e.g. criminal law) is the writ of habeus corpus which enabled courts to review the lawfulness of a detention of “the (live) body” of a person

OTHER PUBLIC LAW REMEDIESIn addition to the prerogative writs, the other main remedies that could historically be used in a public law context to control administrative agencies were the private law equitable remedies of:

declarations (to declare rights) and injunctions (to restrain conduct)

Remedies under “Modern” Judicial Review Procedures StatutesRemedies that are similar to certiorari, mandamus, prohibition, declaration, and injunction remain the key tools used by superior courts in exercising judicial review powers today

HOWEVER, in many provinces, including B.C. procedural reforms mean that the prerogative writs of certiorari, mandamus, and prohibition can no longer be applied for or issued per se

Instead, in B.C. under the Judicial Review Procedure Act, one makes an application for judicial review by means of an originating application (a petition) The JRPA provides that on an application for judicial review the court

"may grant any relief that the applicant would be entitled to" in proceedings for relief in the nature of certiorari, prohibition or mandamus or for a declaration or injunction”

The procedures for making judicial review applications in the Federal Court are set out in the Federal Courts Act

habeus corpus remains available to review the lawfulness of a detention and it has not been subsumed in the remedy of an application for judicial review (that is, one may still apply for this writ as a writ)

THE CONSTITUTIONAL BASIS FOR JUDICIAL REVIEWKey Issue: to what extent does the Constitution guarantee the power of superior courts to review the decisions of administrative agencies for procedural or substantive errors?

To frame this issue another way, to what extent, if any, can a provincial legislature legislate in such a way as to shield an administrative tribunal from judicial review on “administrative law” grounds?

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[Note: challenges to administrative action that are based on constitutional grounds, such as the division of powers or the Charter, are obviously always possible and no Canadian legislative body has authority to exclude challenges based on such grounds]

IMPLIED CONSTITUTIONAL RIGHT TO JUDICIAL REVIEWJudicature provisions of C.A. 1867 (ss. 96-101) have been interpreted so as to guarantee the power of superior courts to conduct judicial review of administrative action on certain, limited grounds

This was determined in the Crevier case, SCC 1981

BACKGROUND TO CREVIER CASE Prior to the Crevier decision, it had been determined by the SCC that the judicature provisions of CA 1867 limits provincial legislatures when they are creating administrative tribunals in terms of the kinds of adjudicative powers that can be given to the tribunals:

Provinces do not have constitutional authority to create an admin tribunal and give it adjudicative powers that ought, according to the courts, to belong to “a s. 96 court”

Key case was Re Residential Tenancies Act, 1981, SCC

Re Residential Tenancies Act 1981, SCC A 3 step approach is called for to determine if a province can give a particular kind of power to an administrative tribunal:

STEP (1) historical inquiry whether the impugned power is one that was exclusively exercised by a s. 96 court at confederation

If not, end of story, can give the power to an admin tribunal

STEP (2) if so, second step: court must consider if the power is a “judicial” power as opposed to a legislative or administrative power

Judicial power for this purpose is one that involves a private dispute between parties…that must be adjudicated through the application of a recognized body of rules…and that must be adjudicated in a manner consistent with fairness and impartiality

STEP (3) if it is a judicial power, then, third step, must look at the power in the context of its overall institutional setting to determine whether that setting changes the character of the power sufficiently so that it should be allowed to be exercised by the tribunal and not be considered a power that belongs exclusively to a s. 96 court

NOTE: the “institutional setting” argument will apparently not save a judicial power that is the sole or central function of an administrative tribunal ... -- but it will save a judicial power that can be characterized as a “necessarily incidental aspect” of, or ancillary to, a broader, more comprehensive and complex regulatory scheme

CREVIER DECISION – SCC 1981 Facts: Quebec legislation (the Professional Code) created the Professions Tribunal (the PT) and gave it exclusive appellate jurisdiction over decisions made by the discipline

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committees of most self-governing professions in Que. (this was the sole function of the PT)

PT members were 6 PCJs appointed by Que.Statute contained a privative clause – s. 194 purported to bar all evocation proceedings (equivalent judicial review applications)

Evocation proceedings are the Civil Code’s equivalent to an application for judicial review

If s. 194 was valid, it would preclude superior courts in Quebec from exercising any judicial review powers over the PT – the courts would not be able to intervene in the PT's decisions even for errors of jurisdiction (i.e. even if the Tribunal was alleged to have exceeded its statutory authority)

Two Issues:1) Does the PT contravene s. 96 b/c the PT exercises powers that ought properly to belong exclusively to a s. 96 court (this is the Residential Tenancies Act type of question)

HELD: YES (?) – the PT has no function other than being a general and exclusive tribunal of appeal and this means it operates like a s.96 court and contravenes s. 96

2) Is the s. 194 privative clause constitutionally valid? – can provincial legislation create an admin tribunal and then immunize it from all JR by superior courts, thus making the decisions of the Tribunal final and beyond judicial review?

HELD: NO s. 194 is not valid – a province cannot constitutionally do this

WHY is the privative clause unconstitutional? Chief Justice Laskin appeared to say the key problem is that such a tribunal would be capable of determining its own jurisdiction and that is something only superior courts can do

s. 96 prohibits a province from giving a provincially appointed tribunal the power to determine finally the limits of its own jurisdiction without the possibility of appeal or review

This means that PRIVATIVE CLAUSES cannot be effective to completely shelter an administrative tribunal from all JR...

RESULT: a provincially constituted tribunal cannot constitutionally be immunized from JR on questions of jurisdiction.

A privative clause that attempts to do this will be invalid and ineffective – in practice it will be “read down” so as to preserve the power of the superior courts to review tribunal decisions for “errors of jurisdiction”

OUTCOME/EFFECT OF CREVIER Judicial supremacy over provincial admin tribunals is constitutionally enshrined by the judicature provisions

It is part of the “core jurisdiction” of s. 96 courts to review the decisions of administrative tribunals for “jurisdictional error and this jurisdiction cannot be taken away”

What are “jurisdictional errors?”

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The meaning of “jurisdictional” error is malleable and is capable of expansion by the courts. For this purpose, “jurisdictional errors” include:

breaches of PFmaking certain kinds of errors of law (errors of law that are held to “go to jurisdiction”)deciding a matter on a finding of fact for which there is no evidence

Crevier also holds that a privative clause can exclude JR for “mere” errors of lawi.e. errors of law that are made “within the jurisdiction of the tribunal” and that do not “go to” jurisdiction or that do not “assume jurisdictional proportions”

[These rather mysterious distinctions between “mere” errors of law and errors of jurisdiction will be explored in more detail in the “substantive judicial review” portion of the course]

What about the federal Parliament?Is Parliament similarly limited or can it create administrative tribunals that have the powers of a s.96 court?

There remains some uncertainty, but...It appears that the federal Parliament is likely similarly bound: See discussion in Text and see also Macmillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725 (powers that form part of the core jurisdiction of superior courts of the provinces cannot be removed by either the federal Parliament or the provincial legislatures)

End of Jan 8th

SOME THEORETICAL CONCERNS AND RECENT DEVELOPMENTS IN ADMINISTRATIVE LAWRULE OF LAWComplex notion – contested meaning

Rule of law is a general principle of constitutional law inherited from British constitutional law and referred to in the Charter’s preamble

Cannot, by itself, be used to challenge the validity of primary legislation (statutes)!

Not an independent means to find a statute ultra vires - can’t just say it invalid because it violates rule of law

Identified in Reference re Seccession of Quebec (1998 SCC) as one of the four underlying principles of the Canadian constitution:

Federalism, democracy, constitutionalism and the rule of law, and the protection of minorities

Compliance of laws with the constitution is an example of abiding by the rule of law

But the rule of law is broader than this!Underlies much of administrative law and provides an important rationale for what courts do (i.e. courts act to “vindicate the rule of law”)

Manitoba Reference (1985) (SCC)In paras. 59/60, SCC stated that the Rule of Law means at least 2 things:

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(1)the law is supreme over officials of govt as well as private individuals and is therefore preclusive of the influence of arbitrary power (supremacy of law over govt)

Really what admin law is all about – making government subject to law

(2) rule of law requires the creation and maintenance of an actual order of positive laws (the existence of a system of public order)

But doesn’t say anything about the content of the law! Debate: Can’t really be rule of law unless that law has a certain quality or character – SCC doesn’t address this issue

See also the reference to Raz, para 62Dr. Raz has said: " `The rule of law' means literally what it says: the rule of the law.... It has two aspects:

(1) that people should be ruled by the law and obey it, and (2) that the law should be such that people will be able to be guided by it"

Law must be “knowable” – plain meaning, not vague or uncertain Issues of retroactivity However, this is not something that will in itself render a law invalid

The rule of law simply cannot be fulfilled in a province that has no positive law.Having no law in a system would itself be contrary to the rule of law!

Imperial Tobacco (2005) (SCC)Makes it clear cannot use rule of law to overrule the legislature

Para 60: Rule of law [apart of course from the role of Constitutional law] constrains primarily executive and judicial branches

Actions of the legislative branch are constrained too, but only in the sense that they must comply with legislated requirements as to manner and form (i.e., the procedures by which legislation is to be enacted, amended and repealed).”

Para 58: Rule of law embraces 3 principles:

(1)Rule of law means law is supreme over officials of govt... (Man Lang Ref)

(2) Rule of law requires an actual order of positive laws... (Man Lang Ref)

(3) Rule of law requires that the relationship between the individual and the state be regulated by law (Quebec Secession Reference)

Para 59: “So understood, it is difficult to conceive of how the rule of law could be used as a basis for invalidating legislation such as the Act based on its content. 

That is because none of the principles that the rule of law embraces speak directly to the terms of legislation.” 

BASIC (TRADITIONAL) UNDERSTANDINGS OF THE RULE OF LAW (“Diceyan”)Two fundamental concepts rooted in the rule of law are relevant in thinking about and understanding administrative law:

(1)Government must act only with lawful authority13

If the government is going to interfere with individual rights or interests, there must be legal authority for this

(2)Government is subject to the ordinary law administered by the ordinary courtsIf you want to challenge the government, you do it in the ordinary courts (not like in a separate court like in the French civil law system)

Dicey was not a fan of discretion

“Government acts only with lawful authority”

Principle of legality: there must be lawful authority for all state actions that interfere with the rights and liberty of citizens

“no one should be made to suffer except for a distinct breach of the law”

There should be clear and knowable legal rules: broad discretionary power is therefore suspect and dangerous (might be used in an arbitrary or discriminatory manner and makes accountability difficult)

All power is legally limited: courts can determine the limits of government power and hence the lawfulness of government action

“No one is above the law” as administered by the ordinary courts

Governments and citizens alike are subject to the ordinary law of the land as administered by the ordinary courts

No separate court system with separate rules for administrative (public) law as there is in FranceHowever, government is immune from certain types of challenge

Courts are the “final arbiters” of what the law is (i.e. courts must have ultimate authority to determine what a statute means and where its boundaries lie)

Courts act as the citizen’s bulwark against arbitrary government and will protect the rights of citizens against the state

Roncarelli v. Duplessis (1959) (S.C.C.)Facts: Liquor Act allowed licenses to be cancelled by tribunal at its discretion. Roncarelli, as well as having a liquor license, was involved in posting bail for hundreds of Jehovah’s Witnesses who were being charged for distributing literature on the streets (municipal by-law). Duplessis (Premier and A.G.) told the tribunal to cancel Roncarelli’s liquor licence (to punish him for his activities with Jehovah’s witnesses)

Roncarelli brought a tort action against the government for abuse of powerDecision:

Court held this was a gross abuse of power.Cancellation of license was for improper purpose (nothing to do with managing liquor), for irrelevant considerations, in bad faith, dictation, and failure to use discretion.Rand J.: there is no such thing as unrestricted discretion, but rather always a perspective within which statute is intended to operate.

Result: Roncarrelli was awarded damages14

Note: In this case, Courts were simply operating under their tort authorityDemonstrates that:

No matter how broad the discretion, there is always a limit on itEven the highest government official (here, the premier) can be held accountable

“FUNCTIONALIST” CRITIQUE OF RULE OF LAW Functionalists tend to argue that courts should take a more restrained role in interfering with government decisions

Issue: what is the proper balance between the state and the court? Have the courts been too interventionist?

General principles of the functionalist viewpoint:A central concern of administrative law should be to promote the effective functioning of the modern statePurposes of modern state should be fostered by law, not hindered; these purposes include:

regulation of private power in the public interestpromotion of greater social and economic equality through the redistribution of income and benefits

Courts have sometimes used administrative law principles (based on ideas about the rule of law) in a way that operates to uphold the status quo and curbs the interventionist stateCourts should take a more restrained, limited, and “less interventionist” role in their oversight of administrative action

Specific “Functionalist” Concerns

Guided by laissez faire ideology, courts have sometimes too zealously guarded “common law values” against state encroachment

E.g. courts may act in administrative law in order to protect private property rights and freedom of contract in the face of state regulation in a way that unduly inhibits the regulatory state and its redistributive aims and purposes

Courts have imposed an adversarial adjudicative model on administrative decision-makers when it has not been appropriate to do so and this

interferes with the efficiency of the administrative system and favours those who can afford to engage in litigation

Courts have sometimes failed to appreciate the need to infuse policy into statutory interpretation and to recognize that they do not hold a monopoly on how to interpret statutes in a way that is consistent with legislative intent and that will best achieve legislative purposes

RECENT B.C. LAW REFORM: ADMINISTRATIVE JUSTICE PROJECTLaunched in 2001 - first of its kind in B.C. Aim was to reform administrative justice system

Objectives of the Project were to ensure that:administrative agencies meet the needs of the people they serveadministrative processes are open and transparentmandates are modern and relevant

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government fulfills its obligations by providing the legislative and policy framework administrative agencies require to carry out their independent mandates effectively.

To meet these objectives, the Administrative Justice Project:reviewed the mandates of the province's administrative agencies with the goal of ensuring they are relevant to a modern and efficient economymade recommendations to eliminate overlapping jurisdictions and multiple proceedingsmade recommendations to streamline administrative procedures made recommendations for government to support the work of administrative agencies in an appropriate and effective way

MAJOR ACHIEVEMENTS OF ADMINISTRATIVE JUSTICE PROJECT INCLUDE:Changes to individual administrative law systems e.g. human rights systemOngoing Administrative Justice Office – branch of AG’s office

AGO website can be found at: http://www.gov.bc.ca/ajo/Merit based appointments process for administrative tribunals

Enacted Administrative Tribunals Act, S.B.C. 2004 c.45, which can be found at: http://www.qp.gov.bc.ca/statreg/stat/A/04045_01.htm

Generally about providing powers for agencies to create their own rules about a number of things Only applies to administrative agenciesProscribes the standard of review:

What standard should be applied? (generally errors of law or errors of fact, or a mixed question) Possible standards: Correctness Reasonableness simpliciter (used in Baker) Patent unreasonableness (only if the decision was “patently unreasonable”

– completely irrational)These three standards were really codified by the Act

HOWEVER, under common law in Dunsmuir (2006?)(SCC), the Supreme Court got rid of patent unreasonableness!

Now only the first two under common law: correctness + reasonableness simplicitorBut in BC all three still exist under the Administrative Tribunals Act

THE BAKER CASEBackground CHAIN OF STATUTORY AUTHORITY/DELEGATIONS OF POWER

Constitution Act 1867: s. 91 Parliament has legis. juris. over immigration

Parliament: enacts Immigration Act s.114(2) (see text p.60); delegates statutory authority to Governor in Council (fed. Cabinet) to make regulations

Immigration Act s. 114(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation

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or that the person’s admission should be facilitated, owing to the existence of compassionate or humanitarian considerations.

Governor in Council: makes regulations under s. 114(2) delegating authority to the Minister to make H & C (humanitarian and compassionate) decisions

Immigration Regulations s. 2.1 (text p.60) provides: The Minister is herby authorized to exempt any person from any regulation made under subsection 114(1) of the Act or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person’s admission should be facilitated, owing to the existence of compassionate or humanitarian considerations.

Minister of Immigration: delegates authority to make H & C decisions to Immigration Officers (departmental officials) and also makes guidelines to instruct the officers as to how to exercise this decision-making authority

Immigration Manual’s Guidelines for H & C Decisions (see Baker, paras 16-17; 72 ): IO must carefully consider all aspects of situation; ask self what a reasonable person wd do; must consider 2 types of criteria that could lead to a favourable decision Public policy considerations: e.g. marriage to a Cdn resident; the fact the applicant has become established in CanadaHumanitarian and compassionate grounds: will unusual or undeserved or disproportionate hardship be caused to the applicant and/or her family if the applicant has to leave Canada?

Junior Immigration Officer Lorenz: makes the initial review of Baker’s application in this case, makes note and recommendations and passes file on to the Senior Immigration Officer Caden

Senior Immigration Officer Caden: considers the whole file, including the notes and decisions of IO Lorenz, and makes the final H and C decision

HOW DID THE BAKER CASE GET TO THE COURTS?

Federal Court Act (FCA) generally provides for judicial review of decisions of federal boards, commissions or tribunals and sets out the grounds for such review (a codification of the common law grounds for judicial review)

BUT Immigration Act s. 82.1(1) (see p. 59) requires that leave is required before decisions under the Immigration Act can be subject to judicial review; s. 82.1(1) provides:

An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder, may be commenced only with the leave of a judge of the Federal Court – Trial Division.

FCTD judge gave such leave in Baker and judicial review under the provisions of the Federal Court Act occurred.

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FCTD judge (Simpson) found against Baker.

Federal Court Act generally provides that decisions made by the FCTD on applications for judicial review can be appealed to the Federal Court of Appeal BUT the Immigration Act imposes a different and more restrictive rule in s.83(1):

A judgment of the Federal Court – Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court – Trial Division at the time of rendering judgment certified that a serious question of general importance is involved and has stated the question.”

Simpson J. in the FCTD, after finding against Baker, stated a serious question of general importance (see Baker case, para 9):

Given that the Immigration Act does not expressly incorporate the language of Canada’s international obligations with respect to the International Convention of the Child, must federal immigration authorities treat the best interests of the Canadian child as a primary consideration in assessing an applicant under s. 114(2) of the Immigration Act?

The stated question was considered by the Federal Court of Appeal per Strayer J. He held he was confined to the stated question only, and could not hear a general appeal of all the issues that were before the FCTD on the original judicial review application. Strayer J. decided the stated question against Baker, and dismissed the appeal. The decision of the Federal Court of Appeal is described in Baker, para.10.

Baker then sought leave to appeal the decision of the Federal Court of Appeal to the Supreme Court of Canada. Appeals from the Federal Court of Appeal to the SCC with leave are provided for under the Supreme Court Act. Leave was granted and the SCC entertained the appeal.

Baker v. Minister of Citizenship & Immigration (1999) (S.C.C.)Facts:

Ms Baker entered Canada on a visitor permit, but overstayed illegally for many years. Had 4 children here (so they are Canadian citizens). Due to diagnosed depression and schizophrenia, she went on welfare and 2 children went to father, other 2 to foster care, but she took these 2 back when recovered.When discovered to be living in Canada illegally she is ordered to be deported under the Immigration Act. Her last resort under the Act is application to the Minister to be allowed to stay in Canada on “humanitarian and compassionate grounds”. Her written application includes medical evidence that if deported she will likely become ill again with no medication, and that she is sole caregiver for 2 children and closely connected with the other 2 (so all children will suffer if she is deported).Application reviewed by junior Immigration Officer and recommends she not be allowed to stay on humanitarian and compassionate grounds. Recommendation sent to senior Immigration Officer who agrees, so application denied (with no oral hearing and initially no reasons given).When Baker’s counsel asks for reasons, senior Immigration Officer sends notes from junior Immigration Officer. Notes appear inflammatory e.g.

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B is unemployed, on welfare, has no income or assetsIt is an indictment of our system that she is still hereB has 4 children in Jamaica and 4 born here [TOTAL OF EIGHT] (note Lorenz’s use of capital letters)B will be a tremendous strain on welfare system probably for the rest of her lifeThere are no H and C factors other than the 4 children – Do we let her stay because of that?In my opinion Canada can no longer afford this kind of generosityBut potential for adverse publicity so should be reviewed

Baker challenges deportation in court, and deportation stayed until concluded.

Claims: Note not a Charter s.7 case, rather dealt with on common law PF grounds.Some PFOs were owed (court said yes).Insufficient PFOs given:

There should have been an oral hearing (no).There was a duty to give reasons (yes, but notes sufficient)There was a reasonable apprehension of bias from notes (yes).

Substantively there was an abuse of discretion (yes).

Decision L’Heureux-Dube: on threshold question, some PF was owed (see above):Not entitled to an oral hearing, because to determine content of PF must look at similar issues as in determining the threshold question, with purpose of participation to ensure fair/open procedure appropriate to statutory context. Balance 5 factors (but says not exhaustive):

Nature of the decision and decision making process : look at closeness of administrative process to judicial process:

Legislative & general / discretionary policy suggests less PFOsAdministrative & specific / resembles adversarial court-like process / fact-finding & credibility suggests more PFOs

Nature of statutory scheme : also consider if there is a general statute specifying procedures such as Ontario’s Statutory Powers Procedures Act (none in B.C.)

Does statute or regulations give PF rights or override common law PFOs (e.g. as in Singh Wilson J. is statute intended by legislature to be exhaustive for PFOs)How general scheme affect PF (e.g. multi-stage process and preliminary investigation v. final decision)Is there an administrative appeal or redetermination (if not suggests more PF)Is case arguing for ordinary scheme to be followed or looking for an exception (which might suggest less PF)

Importance of impact of decision on individualConsider if any legitimate expectations, which has 2 meanings:

Promises / conduct / usual practices by officials that gives individual legitimate expectation that a certain level of PF would be given.Where an individual has a legitimate expectation of a particular result (e.g. that license would be renewed) – can’t be used substantively to actually get that result, but can be used to argue for more PF before expected result denied.

Should consider why agency made choices of procedure that it did (but this can’t be determinative and so carries less weight since court reviewing if they are adequate): look at institutional constraints on agency / practicalities such as not overburdening system (especially if has to make 1000’s of decisions), expediency, informality, etc., which can all be trade offs against requiring high PFOs

In this case looking at these 5 factors:19

Nature of decision has high level of discretion and must consider many factors, not very court-like suggests less PFOsStatutory scheme is that ordinarily people will apply for permanent residence from outside Canada, whereas here Baker applying for exception to this suggests less PFOsImpact here on both Baker and her children very significant, and no administrative appeal suggests more PFOsNo legitimate expectations (i.e. no promises / conduct by officials to Baker suggesting she would be given more PFOs, nor history of giving oral hearings) neutralStatute gives Minister much flexibility

Balancing these factors L H’D concludes no need for oral proceeding, rather written submissions sufficient to hear all relevant information.

Not a simple matter to divorce the substantive from the procedural!!Procedural – must provide reasonsSubstantive – right against biasDuty to give reasons – if hadn’t been given the reasons, wouldn’t have one the case Need to obtain the reasons in order to prove that there was bias.Substantive review become difficult is there is no record of how the decision was made

THE SCC DECISION: STATEMENT OF ISSUES AND HOLDINGS

Note: Although Baker had raised them, no Charter issues were considered – the Court held that it could decide the matter solely on the basis of administrative law principles

Issue 1: What is the legal effect of a stated question under s. 83(1) of the Immigration Act on the scope of appellate review?

Is the scope of the appeal in the Federal Court of Appeal and the SCC limited because of s. 83(1)? That is, is the appeal limited to only the “serious question of general importance” that the Federal Court Trial Division had stated, or can there be a full appeal of all issues, once such a question has been stated?

HELD: the appeal is not limited to the serious question of general importance stated by the FCTD

Once such a question has been stated, the appeal that follows is a full appeal from the judicial review decision of the FCTD to the FCA, and from the FCA to the SCC

Issue 2: Were the principles of procedural fairness violated?Three possible violations were considered:

(i) Were there sufficient participatory rights? Should there have been notice and an oral hearing?(ii) was there a duty to provide reasons that was breached?(iii) was there reasonable apprehension of bias (RAOB) in the making of the decision?

HELD:

YES - sufficient participatory rights were accordedNo notice and no oral hearing was necessary in this case

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The process followed met the requirements of the duty of fairness in this context

YES - There was a duty to give reasons in this case BUT the reasons that were given when requested (Lorenz’s notes) were the reasons for the decision and they were adequate to meet the duty to give reasons

YES - there was a RAOB in the circumstances Lorenz’s notes showed bias in the decision-making process

Use of capitals was particularly damning Issue 3: Was there an improper exercise of discretion [substantive]?

HELD: YES. The failure of the immigration officer to accord proper weight to the interests of the children rendered the decision unreasonable.

Result:Appeal was allowed (meaning that Baker’s application for judicial review was granted)Decision of Immigration Officer Caden was set asideMatter was returned to the Minister for re-determination by a different IO

On the re-determination, the IO would have to decide impartially and would have to apply the principles the SCC identified in the Baker decision as required in the exercise of discretioni.e. the IO would have to give proper weight to the interests of the children in reaching a decision

Note the limited nature of the remedies: the court did not substitute its own decision for that of the IO, but rather sent the issue back to be redecided

Question – Underlying Principles of Participatory RightsWhat “instrumental” purposes and/or underlying core values or purposes are served by according participatory right to individuals before the state makes a decision that negatively affects that person’s rights, privileges or interests?

Better, more informed decision making – allows for more perspectives to be considered

More “correct” decisions – take a wider approach to finding all the factsMore legitimacy – if people have input in the decision, more likely to agree with the result

Counters arbitrary behaviour and ensures that law is followedMore democratic if people participateRespect for the individual, human dignity, right to self-determination (autonomy)Fosters government accountability and openness

Helps prevent human rights abuses

Procedural FairnessThreshold issue: When will procedural fairness apply?

Then: If procedural fairness applies, what is the content?

Starting point: always check the statute to see what is said about procedures!Sometimes will simply authorize the decision maker to create rules

Policies, regulations, etc. 21

Other major source of PF rights is the common lawBut always look to the statute first! generally only look to the common law when the statute is silent on the issue

Procedural fairness will under some circumstances be implied (as a matter of interpretation) when the statute is silent on the issue.

Legislature intended that it can only be validly be exercised if done so in accordance with procedural fairness

Can also consider Charter s. 7S. 7: “life, liberty and security of the person” – BUT has been construed very narrowly by the courts

Introductory ProblemsSee handout

Q1) Because of legislative supremacy, courts don’t generally have the ability to question the processes of enacting laws in the legislature

At the very least, should likely have at least provided notice to the Association, or more specifically, to the licensees. However, does not imply that there was a right to consultGenerally, there is no right to consultation for any group before the legislature (except perhaps indigenous groups in certain contexts)

Association would really have no means of recourse against the legislatureAlso need to consider that if you only gave the right to consult to those who had concrete claims to consultation (e.g. license holders) than may ignore other groups (particularly those on the pro-legislation side) who might want to have the right to consultation as well!

Q2) At least with the legislative process, there is some debate among elected representatives and parties would have the opportunity to lobby their MLA with their opinion.

On the other hand, the process of regulations is more closed off, so arguably there is a greater need for consultation in this contextThere is generally no right to consultation in the making of regulations unless the statute says so!However, if it is really an abusive process, then the courts have more power of judicial review over the executive branch than over the legislative branch

Q3) Question often hinges on how you characterize what’s at stake: whether you are gaining a status (less serious) or losing status (more serious)

In this case, she is apply to gain a status (welfare recipient) so she will not be losing anything

Might be different if she was going to lose welfare assistanceEssentially had a chance to be heard through the application

Q4) Meeting the minimum requirements does not guarantee admittance. Further, there is not per se any duty to provide an explanation of why a particular individual has not been admitted

Universities often provide a published explanation of their selection process. There are often discretionary components – must rely on the fairness of the systemThrough the application process, the applicant essentially has a “chance to be heard”

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Also have an opportunity to reapply the next yearHowever, if a person is only denied admittance based on a technicality (say a question of an academic infraction in past years) the student should probably be given an opportunity to provide an explanation (although perhaps they should have been pre-emptive in providing an explanation of the infraction)

Q5) Exemption for extenuating circumstancesPerson has had an opportunity to be heard through their applicationThe written application is itself an appeal process

Q6) The phone call is not a binding form of communication – further, they only stated that he could “expect” renewal, which is not a guarantee.

But does this create a legitimate expectation? – Probably not – very limited doctrine in Canada

Q7) Person has had an opportunity to provide more information about the offence, although we’re uncertain about how much and the nature of information that they were asked to provide

When a great deal is at stake for the individual, need to ensure that there is an adequate opportunity to be heardNeed for an oral hearing? – perhaps, very context specific and dependant on individual resources

Some factors identified which dominate these scenarios:Who is the decision maker? What are the institutional constraints?

Cannot always afford full procedural protectionsWhat’s at stake (how serious is the matter to the individual)?

Distinction between applicant seeking to gain a status (less at stake) or prevent losing a status (more serious)

What is the basis/reason for deciding against the individual?Often there should be, at a minimum, a duty to provide reasons

Is the person adequately being heard though, for example, the application process?

Application itself may be framed as their opportunity to be heardHas the state made any promises about the result (or about processes)?

May create legitimate expectation – through not a well-developed doctrine in Canada

Historical Development of Common Law Procedural Fairness ObligationsNOTE: Concept of natural justice has generally been subsumed by the idea of procedural fairness

The concept of “Natural Justice” has two primary principles or aspects:(i) audi alteram partem (hear the other side): which generally entails a right to

notice and a right to be heard; and(ii) nemo judex in sua causa (no one should be a judge in his/her own cause):

the rule against bias

Early common law: hearing rights were generally inferred as a matter of justice, when the important rights of an individual were being affected by the decision or action at issue

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Later common law – restrictive approach: restrictions on access to hearing rights arose 20th century (1920 – 1960); common law focused on the classification of the function or decision being carried out:

“judicial” or “quasi-judicial” decisions

natural justice appliedhearing rights accordedcertiorari and prohibition available

“administrative”, “executive” or “ministerial” decisions

natural justice did not applyno hearing rights accorded certiorari and prohibition NOT available

Elaboration of the “Restrictive Approach” (1920 – 1960s)Per Lord Atkin in Electricity Commissioners [1924 Eng. C.A.]: “whenever any body of persons, having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King’s Bench division…” [exercised through the writs of certiorari and prohibition]

Lord Hewat in Church Assembly [1928, K.B. (Eng)] interpreted Lord Atkin to mean that, for natural justice to apply, the decision in question had to (i) determine rights and (ii) involve a “superadded duty” to act judicially in making the decision...so...

If the decision was not a final decision (not “determinative”) - NJ did not applyIf the decision involved only “privileges” (as opposed to “rights”) - NJ did not applyIf no “superadded duty” to act judicially was found in the statute - NJ did not apply

English common law “undid” the restrictions of Church Assembly in Ridge v. Baldwin 1964 H.L. and moved to recognition of a “duty of fairness” e.g. Re H.K. 1967 (Q.B.)

Expansion of Procedural Obligations: Canadian adoption of the “Duty of Fairness” in Nicolson (SCC 1979)

Modern Approach to Procedural FairnessFurther development towards the Modern Approach to Procedural Fairness e.g. Cardinal (SCC 1985) and Knight (SCC 1990)

per LeDain J. in Cardinal (SCC 1985): “This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying in every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges and interests of an individual.

Per L’Heureux-Dube J. in Knight (SCC 1990): ... not all administrative bodies are under a duty to act fairly. Over the years, legislatures have transferred to administrative bodies some of the duties they have traditionally performed. Decisions of a legislative and general nature can be distinguished in this respect from acts of a more administrative and specific nature, which do not entail such a duty [citations omitted] ... The finality of the decision will also be a factor to consider. A decision of a preliminary nature will not in general trigger the duty to act fairly, whereas a decision of a more final nature may have such an effect

L’Heureux-Dube J. in Baker (SCC 1999): “The fact that a decision is administrative and affects “the rights, privileges or interests of an individual”

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is sufficient to trigger the application of the duty of fairness.” [the Baker case then provides a five factors test to determine the content of procedural fairness]

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police (1979) (S.C.C.)Significance: first case in Canada in which the duty of fairness was recognized

Facts:Regulations under the Police Act said police officers of 18 months or more service must have a hearing and appeal rights for any disciplinary action. Another provision said power to dismiss if less than 18 months service not affected by this. (implication being that in a “probationary” state for first 18 months)Nicholson had served for 16 months and was discharged by Police Board

Claims:Nicholson argued that he should have had a chance to be heard.Police Board argued express mention of one thing excludes the other (expressio alterius rule)

Ont CA: employed expressio unius est exclusio alterius and held that N was “probationary” and had no right to any PF before being dismissed

Majority Laskin C.J. (5-4):Conceded that the legislature did not intend full-blown hearing (as for officers with 18 months or more) but there is a half-way house between full PF rights (“natural justice”) and nothing at all, which they called a “duty of fairness” (i.e. something less than full PFOs). Rationale:

There is an important right at issue – N is an office holder [an office is akin to a property right; an important status]

Office holders are people who hold a particular position that is provided for in statute or in law – not simply regular employeeTwo types (Baldwin): Cannot be dismissed from except for cause - are owed PF Can be dismissed at pleasure (for any reason without cause) - not entitled to

PF

Interpreting the statute, the police officers could only be dismissed for cause (he did not hold the office “at pleasure”)

i.e. required fault / wrongdoing to be found, and duty of fairness requires that a person be allowed to answer for such cause

But statute implies must be some differences between pre 18 months and post 18 months:

Pre-18 months = duty of fairness [a common law requirement]Post-18 months = full hearing and appeal rights per the Regulations

Good policy reasons to hear from Nicholson: “the Board … would wish to be certain that it had not made a mistake…” (i.e. functional better decision rationale) and morally it’s the right thing to do, especially when accusing someone of wrongdoing

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Duty of fairness here means: Nicholson should have been told why his services were no longer required and given an opportunity to respond (either written or orally)

Quote from Bates: "that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness".Quote from Selvarajan: “The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it.”

Result: Police Board decision to terminate quashed.

Dissent Martland J. (4):Agreed with Ont C.A. that if less than 18 months, purely probationary, so no PFOs

Aftermath:Board schedules a hearing and notifies Nicholson of 11 allegations, but Nicholson goes back to court:

Asks for hearing to be prohibited (he is now over 18 months and now entitled to full hearing, and further, regulations impose 6 month time limit on dismissal which has elapsed). Court says no, it’s as if the original decision had never been made and Board gets to resume process from where it left offAsks for damages for lost wages since being wrongfully discharged. Court says yes, subject to duty to mitigate (i.e. that Nicholson tried to get other work)

Police Board does full oral hearing, with counsel and cross-examination, and decides to terminate him (which he seeks JR on again – but dismissed).

Note: Does say something about the limited nature of procedural fairness remedies: decision is simply set aside and must be reheard. Further, is often sent back to the same decision makers!

Same decision is often reached: all that is really accorded is a delayHowever, in some circumstances PF will lead to a different decision

Comment: so apparently now had 3 categories:Judicial and quasi-judicial decisions

=>

Full natural justice rights

Certain kinds of administrative decisions (unclear which exactly)

=>

Duty of fairness rights (less than natural justice, but unclear what exactly)

Other administrative decisions

=>

No rights

Modern era = Knight steps: 1) threshold Q: any CL right to PF 2) statute 3) content 4) met

Subsequent case law following Nicholson moved further away from need to categorize as “judicial and quasi-judicial”. E.g. Martineau v. Matsqui Inmate Disciplinary Board (1980) (S.C.C.) Dickson J. held that “the fact that a decision maker does not have a duty to act judicially does not mean that there may not be a duty to act fairly, which involves importing something less than the full panoply of conventional natural justice rules.”

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Also held that it is wrong to regard natural justice and fairness as distinct and separate standards, which would create an unwieldy conceptual framework. Referring to “fairness” in Nicholson, it involves “compliance with only some of the principles of natural justice.”

Distinction between of judicial or quasi judicial decisions has largely been lostHowever, the distinction is still relevant since some statutes included “judicial and quasi-judicial” language to distinguish when rights would be given

E.g. Ontario’s Statutory Powers Procedures Act still uses “judicial and quasi-judicial”, Federal Court Act used to, Quebec Charter does. So still need to be aware “judicial and quasi-judicial” means decision making that closely resembles courts i.e. taking something away for some kind of wrongdoing.

Cardinal v. Kent Institution [1985] 2 S.C.R. 643Significance: highlights the importance of context

Note: this kind of situation would nowadays likely trigger you s. 7 rights – further restricting your liberty = further deprivation of liberty

Facts: Prisoners charged with hostage taking and attempted escape during a prison riot at Matsqui transferred to max security prison Kent and were immediately placed in segregation by the Director on the basis that segregation was necessary for order/discipline in the prison. Director acted only on the basis of information from other prison officials.

Segregation Review Board reviews all segregations monthly - this was done.Several months later, the Board recommended release into the general prison population - put into segregation in July, not reviewed until the fallDirector did not accept the Board’s recommendation b/c of his ongoing opinion release would generate disorder. Decided to keep the prisoners in segregation without giving them notice of his intention to do so nor any opportunity to be heard before making that decision

Claim: Prisoners sought JR arguing breach of PF BCSC found breach of PF – decision to continue segregation was unlawful BCCA overturned BCSC – no breach of PF

SCC Held: BCSC decision was correct, notwithstanding the prison context - PF was owed and was not accorded:

Prisoners should have received notice and an opportunity to be heard before Dir decided not to accept the Board’s recommendations about release from segregationFailure to accord PF rendered the continued segregation unlawful

Reasoning:Duty of fairness applies re: exercises of authority about segregating prisoners:

“This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual...”[para 14]

Can see that have moved away from the previous distinction, but still some limitations: if it is of a legislative nature then no PF

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No longer limited just to rights as in the older common law – also applies to privileges and interests

Importance of context: Context of prison admin is important factor; per Dickson J. in Martineau No 2: “The very nature of a prison institution requires officers to make "on the spot" disciplinary decisions and the power of judicial review must be exercised with restraint.”Original decision to segregate could be made without a prior hearing b/c of the urgent and “emergency” nature of the matter

Will be circumstances where the state has to act quickly without according full PF rights However, fairness requirement may require you to review the decision afterwards

But the subsequent decision not to accept the Board’s recommendations to release from segregation attracted PF obligations:

Dir had to inform prisoners of the reasons for his intended decision and give them an opportunity, however informal, to make representations to him on the matter (to state their case for release from segregation)

Not the same sense of urgency here should have given the prisoners an opportunity to be heard at this pointRequired because of the serious affect on the liberty of the prisoners in continuing to be segregated

Comment: SCC said PF could not be denied on the basis that of an argument that the hearing would likely not make any difference (that it would likely not make the Director change his mind) – can not deny a hearing on the basis that it will not likely make a difference

“Denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have.

It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.” [para 23]

Knight v. Indian Head Board of Education (SCC 1990)Significance: Gave a framework for determining when and what PFOs are due

Facts:Under the School Act the school Board can terminate the Director of Education with cause, or can give 3 months notice to terminate without cause (i.e. “at pleasure”)Board dismissed Director when he refused to accept a renewal of his contract for a shorter term than the original. Director brought an action against the Board for judicial review arguing he was entitled to procedural fairness before being dismissed.

Issue: are there PF rights for an office holder at pleasure?

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Majority (4-3) L’Heureux-Dube J.: Yes, PF rights are owed here even though “at pleasure” (although minimal PFOs and they were met, so Knight loses)

Concluded that here, employment is very important – lot at stake for the individual

In this case, because Knight could be dismissed at pleasure, the content of procedural fairness was fairly limited

Employer had to give reasons why they were terminating and he had to be given an opportunity to address theseIn this case was determined that he had been given this opportunity – case was lost on the facts

General framework for analysis used in Knight (how LHD organized her discussion):

1) THRESHOLD QUESTION: DOES A DUTY OF FAIRNESS AT COMMON LAW APPLY IN THE CIRCUMSTANCES? Nowadays, will apply most of the time – usually obvious, but could be more difficult if it’s a preliminary decision or if it has a legislative flavour. Need to look at 3 factors:

1) the nature of the decision to be made by the administrative body : Acts of a legislative and general vs. administrative and specific “legislative and general” = suggests no PFOs (e.g. decision made on

broad public policy grounds such as writing delegated legislation) “administrative and specific” = suggests some PFOsDecisions of a preliminary nature vs. final decisions “preliminary” = PFOs less likely (e.g. initial report preparation, sent to final

decision maker) “final” = PFOs more likely

2) the relationship existing between that body and the individual; and This factor seems to relate to the context and to the grounds on which the decision-maker can act and includes any policy reasons re: why PF should or should not applyPolicy reasons: Morally valuable /dignity to give individual opportunity to participate More informed decision maker can lead to a better decision Dismissal at pleasure is a broad discretion, so important for the public interest

and legitimacy to make it accountable (to ensure not being used discriminatorily)

3) the effect of that decision on the individual’s rights. Impact on individual must be significant and importantOften the factor that is weighed most heavily

2) IF SO, DOES THE STATUTE (OR CONTRACT) ELIMINATE OR LIMIT THE RIGHTS TO PF?I.e. does the defence of “statutory authorization apply?]

A statutory provision that either expressly or by necessary implication clearly enables the d/maker to proceed without the procedures that the common law would require, will override the common law of PF and authorize the d/maker to decide without PF;

In such a case, the only way to override the statute would be through a constitutional or quasi-constitutional provision that would “trump” the statute Charter (e.g. s.7) and Bill of Rights trump the statute

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Always remember that the statute can overrule the common lawKane v. Board of Governors of the University of British Columbia: “To abrogate the rules of natural justice, express language or necessary implication must be found in the statutory instrument.”

3) IF NOT ELIMINATED OR LIMITED BY STATUTE, WHAT IS THE CONTENT OF THE PF RIGHTS?NOW, would use the Baker five factors to consider content issue

Spectrum of procedural fairness – use the Baker factors to try and pinpoint your place on the spectrum

What is the rough level of procedural fairness that is required? Having determined this level, then must look at what elements will be required to meet PF (e.g. oral hearing)

PFOs are “eminently variable” depending on “the specific context of each case … every administrative body is the master of its own procedure and need not assume the trappings of a court. The object is not to import into administrative proceedings the rigidity of all the requirements of natural justice that must be observed by a court, but rather to allow administrative bodies to work out a system that is flexible, adapted to their needs and fair.”Spectrum – basically the same 3 steps as in threshold question above

The closer the administrative process if to the judicial process (e.g. findings of wrongdoing, adjudication with evidence from parties, determinations of fact and law), more PFOs, and vice-versa

4) HAS THE DUTY OF FAIRNESS BEEN COMPLIED WITH? Factual question: what happened in terms of notice and a right to be heard being accorded? Was what was done good enough to meet the duty of fairness that applies in the circumstances?

Comment: Procedures found in Knight are still applicable, but the findings surrounding office holders have been overruled in Dunsmuir

Now if there is an employment contract, should be dealt with under contract law rather than under public law

Application of DoctrineRecall Le Dain J. in Cardinal v. Director of Kent Institution (1985) (S.C.C.) (quoted in Knight) there is “a duty of PF lying in every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges and interests of an individual”.Some interests appear to be valued more than others:

Property rights (although often affected by legislation without PFOs)Liberty, security of the person, bodily integrity, Charter s.7 e.g. prisoner rights, immigration / deportation, mandatory psychological testing

Pre-existing interest can deserve more PFOs than when trying to acquire an interest e.g. through licensing, welfare, housing, etc.

Distinction between application for and loss of an existing status – but only a consideration, not a strict rule

Forfeiture cases: loss of existing right, privilege, status = then PF appliesPure application cases: applying for a new right, privilege or status = PF less likely to apply

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No reason to expect a positive outcome, no “slur from being refused, may simply be denied because of scarce resourcesHowever, where there is a clear expectation of a favourable decision(e.g. renewal of licenses) – may be a slur against you if not renewed – PF will apply E.g. application for citizenship in Lazarus?: met the criteria, but Secretary of

State refused to grant citizenship based on confidential information from the RCMP

Must be some cogent reason for not granting citizenship once you get to the stage of meeting all the criteria for citizenship

Webb and Ontario Housing Corporation (1978) (Ont. C.A.)Significance: again, demonstrates that even when PF rights are recognized, does not necessarily require a particularly high standard

Here informal notice was enough (although this case is dated)

Facts: Ms. Webb and children were tenants in subsidized public housing for several years. She was eligible for public housing because she was a welfare recipient, but no statutory right to housing. Because her kids were unruly, property manager recommended to Ontario Housing Corporation (OHC) that her lease should be terminated (OHC is statutory body acting under statutory authority). Visited several times by a housing reviewer and warned that if she could not control her children she would lose her housing.

OHC held a meeting at which it was to terminate her lease

Claim: Ms Webb sought judicial review of decision (claiming she should have got notice and hearing).

Argues that this is a judicial or quasi-judicial decisionArgues that should have been accorded procedural fairness

Decision:Ontario Statutory Powers Procedures Act doesn’t apply (not judicial or quasi-judicial decision)

Case turns on decision that PF should apply:Threshold Q: are there any PFOs?

Recognizing that she is losing something significant: Subsidized housing is an important existing interest (but not a right), and losing it will have a serious adverse impact.

However (in obiter), if she had been applying, suggested there would be no PFOs Distinction based on existing interest being more tangible and important, and

practical considerations of giving PFOs to many applicants, and application form itself an opportunity to be heard, and often re-application is possible)

Further, decision made on basis of allegation of fault / wrongdoing (mischief by kids). If instead she had been losing the housing due to budget cuts, say, she probably would not have got any PFOs.

Thus some PFOs are owed, so now ask what is their content:She’s “only” losing the right to continue to be a tenant, and “Courts must be careful not to judicialize every administrative act under statutory authority”.

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Some form of notice was required to explain the problem and that she might lose her housing (but no need for formal notice) and some opportunity to make representations was required (but no entitlement to formal appearance before Board)

i.e. minimal PFOs of informal notice and informal opportunity to be heard Had been warned about the possibility of eviction: had 2 informal and 1 formal

warning – told that lease would be terminated if could not control her kids Had no right to attend the meeting

Held: Did she get the PFOs owed? Yes, she got all PFOs through informal talks with OHC

Comment: Court took subsidized housing seriously enough to give some PFOs, but obviously not seriously enough as only gave minimal PFOs (contrast with professional losing their job for wrongdoing, would get formal PFOs).

Legitimate Expectation Doctrine (LED)LED can operate to expand procedural fairness:

LED doctrine in Canadian law is part of the common law of procedural fairness; Cannot be used to achieve a specific substantive outcome, only procedures: Re

CAP; Baker. That is, where it can be successfully invoked, the LED doctrine might provide some procedures where the common law would not otherwise accord any procedures, or the LED doctrine might provide better [more extensive] procedures than the common law would normally accord. Where it applies, the LED affects the content of procedural fairness.

The term “legitimate expectation” has two connotations in Canadian law. These are described clearly in Baker at para 26:

If the claimant has a legitimate expectation that a particular procedure will be followed in his/her case, because of the representations, regular practices, or promises of the decision-maker, then this procedure must be followed

Will be bound to adhere to certain procedures because they had been held out to the claimant

If the claimant has a legitimate expectation that a particular substantive result will be reached in his/her case (because of the past conduct, practices, or representations of the state) then more extensive procedural protections than would otherwise be required by the common law may be necessary before he/she can be deprived of that outcome

“legitimate expectation” is a way to characterize the nature of the interest that will be affected by the administrative decision and denotes that the interest is deserving of procedural protectionAlthough does not guarantee a granting of the substantive result, may be granted greater procedural rights than if the representation had been given

E.g. renewal of licensesHowever, cannot demand the substantive outcome, only greater procedural rights – e.g. notice, the right to be heard

In Baker, Justice L’Heureux-Dube stated that the legitimate expectations doctrine “is based on the principle that the "circumstances" affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations

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as to procedure, or to backtrack on substantive promises without according significant procedural rights”.

The doctrine is clearly related to promoting regularity, consistency and certainty in administrative decision-making [rule of law concerns]. Concerns of good administration in terms of what the citizen can expect when dealing with the government

Reference Re Canada Assistance Plan (1991) (S.C.C.)Significance: Stands mainly for point that can’t use LED substantively

Facts: federal Canada Assistance Plan (CAP) authorized feds and province to enter into cost sharing programs. Such agreements could be amended by mutual consent of after 1-year notice. After 20 years of relatively little change in the statute, because of federal deficit the feds decided to change the CAP unilaterally and without giving the 1-year notice to provinces. Under new CAP, three “have provinces” would get significantly less payments.

Claim: B.C. did not claim legitimate expectation against Parliament, since they knew this common law doctrine would not be available against Parliament and because Parliamentary supremacy says one parliament cannot bind it’s successors, and courts only have power to trump Parliament on constitutional issues (certainly not common law).Instead, BC claimed that provinces had a legitimate expectation that the Government of Canada (executive branch) wouldn’t introduce a bill to parliament to amend the CAP

Took this one step back because of legislative supremacy: couldn’t question the law making process of the legislature, so took a step back to tackle the executive government introducing the bill

B.C.C.A.:Reference question from B.C.: did the agreement in place between B.C. and Canada and previous behaviour of Canada lead to legitimate expectation that federal executive (cabinet or minister) would not introduce Bill to amend the plan without B.C.’s consent or 1-year notice? Decision: success for B.C. – yes, there was a legitimate expectation.

S.C.C. decision: said there was no legitimate expectation here, for 2 reasons:BC attempting to use legitimate expectation doctrine in a substantive rather than procedural way i.e. doctrine is only available for procedural fairness rights such as requiring the feds to hear from B.C. before they decided to ignore/do away with the requirement for 1-year notice and change the CAP (which B.C. probably did get anyway). It cannot be used substantively, as here where B.C. trying to argue it had a legitimate expectation that the law would not be changed (unless it gave it’s consent or there was 1-year notice).E.g. could not use the doctrine to argue “I should have been given the license” (a substantive outcome) but rather only “they should have listened to me before they decided whether or not to give me the license” (procedural rights).“You cannot do indirectly that which you cannot do directly” i.e. could not fetter Parliament, and so cannot achieve this same result by stopping the executive introducing a Bill – this would fetter legislative process since executive acting as part of legislative when introducing Bills, especially with money Bills can only be introduced by cabinet

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Requirement for Claiming Legitimate ExpectationThe conduct relied on (established practices, representations, promises) to establish a legitimate expectation must be clear, unambiguous and unequivocal so as to give rise to a reasonable expectation that a particular procedure will be followed or that a particular result will be obtained - CUPE v. Ontario Minister of Labour

There is NO need for the person seeking to rely on the LED to prove: - Mt. Sinaihe/she had express knowledge of the practice or other conduct that is alleged to create the legitimate expectation or that there was an individualized promise or representation made to him/her, or that he/she relied on the existing practice or representation to his/her detriment.

This is because the doctrine focuses on promoting “regularity, predictability and certainty in governments dealing with the public”.

A legitimate expectation must never conflict with a statutory duty:

That is, the state cannot lawfully promise to do something that is contrary to statute and the court should not enforce a promise or representation that is contrary to statute.

The LED cannot be used to fetter, directly or indirectly the power of a provincial legislature or Parliament to enact statutes - Re CAP

I.e cannot interfere with primary legislation making processAlso, because of certain passages in the judgment of Sopinka J. in Re CAP there is some question about whether the LED can apply to “legislative and general” decision-making understood more broadly. [P.S. Crane thinks it should!]

Some other points:If an agency has adopted the usual practice of allowing hearings, say, but didn’t for your case, can argue legitimate expectation, but must have knowledge of the agency’s past practice, although there is the question of whether you must have known of it prior to your being denied a hearing, or if finding out about it afterwards is sufficient (case law is suggesting the latter, but agency must be able to change it’s policy which suggests the former).

Mount Sinai Hospital CentreSignificance: here were really more interested in the MINORITY opinion

Provides a scenario of the government promising something and then renegingMinority opinion provides important discussion of legitimate expectation

Facts: Mount Sinai Hospital was originally established as a long-term treatment facility for tuberculosis. The original permit was for 107 long term care beds. Over time, the Hospital introduced new services, including some short-term care facilities. The Ministry knew about this and funded the Hospital for both long and short term care beds. But the original terms of the permit were not changed.In 1984, negotiations began between the Hospital and the Ministry to move the Hospital to Montreal. Hospital was still operating under its original permit (107 long-term beds) even though for 10 years it had been providing 57 long-term beds and 50 intermediary or short-term beds. The Hospital wanted its permit altered to reflect the reality of the services it offered.

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The Minister promised that the permit would be formally altered once the Hospital moved to Montreal. This promise was reaffirmed on various occasions. After the Hospital had moved to Montreal, in January 1991, it made a formal request to the Minister for “regularization” of the permit.Without giving the Hospital an opportunity to make submissions on the issue, the Minister wrote to the Hospital in October 1991, informing it that it would not receive the promised permit and would have to operate under the original permit. The reason given was that issuing the revised permit would commit the gov’t to provide additional financial support that they did not want to give.  Nevertheless, the govt knew that the services being offered still included short-term services funded by the government and was content to allow that to continue and continued funding for all services, both long term care beds and short term care beds.The Hospital sought mandamus – asking the court to order the Minister to issue the promised permit.

Have to show that there was a duty on the part of the Minister to issue the permit

Hospital’s arguments for mandamus:1. We already have a “de facto” permit and mandamus should issue requiring that it

be made formal2. Alternatively, court should use the legitimate expectations doctrine

substantively: “they promised us a permit, we have a legitimate expectation we will get permit; make them give it to us”

3. Alternatively, court should use the doctrine of promissory estoppel to make them give us the permit (the Minister is estopped from refusing to give us the permit)

4. Alternatively, the Minister’s decision to refuse to issue the permit was an abuse of discretion (a patently unreasonable exercise of a statutory discretion) that should be quashed AND the only decision that would not be patently unreasonable would be to decide to issue the permit, therefore, the court can order that it be issued

Decisions of the Court’s Below:Quebec Superior Court Held: there was a legitimate expectation to get the permit therefore PF obligations attached to the Minister’s decision not to issue the permit; PF was breached b/c no notice and opportunity to be heard was given before the decision not to issue the revised permit was made; Minister’s decision was therefore quashed and set aside; but mandamus was refused

This purely procedural remedy was NOT GOOD ENOUGH for the Hospital – they needed a substantive remedy, to get the permit itself, not just a hearing after which Minister could reach same decision; so, the Hospital appealed to the Que C.A.]

Que CA: applied the doctrine of promissory estoppel and ordered the Minister to issue the promised permit

HELD IN THE SCC:

MAJORITY OPINION (Bastarache J.): appeal dismissed. Mandamus stands BUT for different reasons than those of the Que Court of Appeal (and for different grounds than any of those the Hospital had argued)

Did not decide on the basis of (nor tell us anything much about) legitimate expectation, promissory estoppel, or abuse of discretion. Also refused to hold that there was a “de facto permit” that merely had to be formalized.Found instead that the statutory discretion to issue a revised permit that resided in the Minister had in fact been exercised by the course of dealings between the parties; it was exercised and exhausted at the time at which the Hospital

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moved to Montreal. The decision to refuse to issue the revised permit that occurred later (October 1991) was not a valid reversal of the Minister’s exercise of discretion because the reasons given by the Minister to justify the refusal were groundless.Because the Minister had failed to act in accordance with the prior exercise of his discretion [i.e. by formally granting the permit] the criteria for the issuance of an order of mandamus were found to be met and the Minister could be ordered to deliver the permit to the Hospital.

[The Minister acted outside the limits of his authority in refusing to issue the permit, once he had already exercised the discretion to grant it.]

Note/Comment: This is an unusual and novel basis for granting mandamus in a case like this. It is not clear to what extent it provides a precedent for future cases.

One would suppose that it will usually be difficult to argue that a statutory discretion has in fact been “exercised” merely through a course of dealings. One of the practical problems here (as Justice Binnie points out) is how to determine precisely when discretion has been exercised in such circumstances.

MINORITY OPINION (Binnie J): agrees with Majority re: the outcome but for different reasons. Found there was an abuse of discretion here a patently unreasonable exercise of the discretionary power to issue a permit

Therefore, the Minister’s decision should be quashed and the only possible decision that would not be patently unreasonable would be to issue the permit so court can so order.

On legitimate expectation: Doctrine of legitimate expectations looks to the conduct of the public authority in the exercise of that power including established practices, conduct or representations that can be characterized as clear, unambiguous and unqualified.  Expectations must not conflict with the public authority’s statutory remit.  Doctrine of legitimate expectations is limited to procedural relief

However, in some cases it is difficult to distinguish the procedural from the substantive.  This distinction should be made based on the principle that broad public policy is preeminently for the Minister to determine, not the courts. 

Notes that England does allow legitimate expectation to be used to get a substantive result – fairness requires that government delivers on its promise

Was argued promissory estoppel (a private law doctrine) disallowed Minister from refusing to issue permit. Not accepted here since concern about taking away discretion from Minister as given in statute (s.138)

Concerns about allowing legitimate expectations doctrine to be used substantively:

Government officials give advice about permits etc. all the time, some of which may be wrong or policies may changeIt may not be reasonable to rely on snippets of advice from particular officialsOfficial may give advice without having all the factsGeneral concern of binding government and having chilling effect on policy change: idea that the state needs some leeway to change its policy and to change its mind

On promissory estoppel:Notes that Quebec court applied private law concept of promissory estoppel in an administrative concept BUT this is not a private law case – should not apply private law to this case. Promissory estoppel requires:

Representation or promise made36

Promise intended to be relied uponPromise in fact relied uponDetriment incurred because of reliance (e.g. expense, change of position, etc, here would be hospital fundraising for move reliant on promise of long and short term permit).

HOWEVER, Minority notes that there could be a place for promissory estoppel in public law, though the specific circumstances are not spelled out here

“Estoppel may be available to give substantive relief against a public authority, including a Minister, in narrow circumstances.”Refers to US law which narrowly carves out promissory estoppel in public law:

Unequivocal advice from an unusually authoritative sourceReasonable reliance on the advice by an individualExtreme harm from that reliance andGross injustice to the individual in the absence of judicial estoppel, but the courts are very reluctant to use it

  Hesitancy to using promissory estoppel in public law:

“Public law estoppel clearly requires an appreciation of the legislative intent embodied in the power whose exercise is sought to be estopped.  The legislation is paramount.  Circumstances that might otherwise create an estoppel may have to yield to an overriding public interest expressed in the legislative text.”

Summary of Legitimate ExpectationRefer to the two meanings set out in Baker (general & term of art).Procedural doctrine only, but watch b/c it is developingCannot use to fetter parliament (directly or indirectly) CAPMt Sinai: there is no need for express knowledge or detrimental reliance in Canada. Legitimate expectation is just to ensure consistencyCan’t use in a way that is contrary to statutory provision, would need a clear case, cannot trump statuteIn CAP Sopinka J. said that there is no application of legitimate expectations to purely legislative decisions.Finality is also a factor – if the decision wasn’t final, no PF would be necessary, but L’H-D in Knight suggests that finality is still relevant. Finality can impact PF requirement and content, but is not determinative. Factors:

impact of the preliminary decision or final decisionimmediate effect on the claimantwhat the statute provides

LEGISLATIVE AND GENERAL DECISIONSThere are a large number of cases that affirm that there is not duty of fairness in decisions of a legislative nature and general nature:

Bates v. Lord Hailsham, [1972] 1 W.L.R. 1373 (Ch.) (cited in Inuit Tapirisat at p. 7 of extract)

Facts: involved a challenge to the legality of an order under the Solicitors Act that abolished a fee tariff; Argument: the ground of the application for JR was that the rule-making body acted improperly in failing to engage in wider consultation among those affected (practicing lawyers) before making the change to the tariff;

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Held: the application for JR was dismissed by Megarry J. on the ground that neither NJ nor a duty of fairness applies to "the process of legislation, whether primary or delegated” - there is no implied right to be consulted re legislation

Cardinal v. Kent Institution (1985 SCC) per LeDain J. (text p. 115)

“…there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges, or interests of an individual”

Martineau v. Matsqui Inmate Discipline Board (1980 SCC)Per Dickson J. (text p. 131)

“A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision.”

Knight v. Board of Education of Indian Head SD (1990 SCC)per L’Heureux-Dube J. (text p. 117)

“… not all administrative bodies are under a duty to act fairly… Decisions of a legislative and general nature can be distinguished in this respect from acts of a more administrative and specific nature….The finality of the decision will also be a factor to consider. A decision of a preliminary nature will not in general trigger the duty to act fairly, whereas a decision of a more final nature may have such an effect.”

Baker v. Canada (Min. of Citizenship and Immigration) (1999 SCC) per L’Heureux-Dube J. (text p. 65):

“The fact that a decision is administrative and affects “the rights, privileges or interests of an individual” is sufficient to trigger the application of the duty of fairness...” The Baker case then provides a five factors test to determine the content of procedural fairness.

A.G. of Canada v. Inuit Tapirisat of Canada (1980) (S.C.C.)Significance: Provides some guidance for determining if the nature of the decision is legislative and general decision

Facts:CRTC (federal agency) regulate telephone rates through a rate-setting hearing process complete with interveners. Under the statute National Transportation Act s.64(1) there are two kinds of appeal:

To Cabinet on any ground: Cabinet can, in its discretion, vary or rescind any orders made by CRTC on petition of any interested party or on its own motion.To Federal Court of Appeal on questions of law (including jurisdiction)

CRTC gave Bell Canada a rate increase in NWT, with Inuit Tapirisat as an intervener.Inuit Tapirisat appealed to Cabinet to set aside or change this rate increase decision. CRTC and Bell Canada made written submissions, and the department produced a briefing document for Cabinet with summary of submissions and recommendation. Inuit Tapirisat did not receive all submissions (only got Bell’s) and had no oral hearing. Cabinet dismissed appeal.Inuit Tapirisat sought judicial review in the Federal Court of Appeal, claiming it should have got an oral hearing before Cabinet, or at least all submissions and opportunity to respond. Inuit Tapirisat won at Federal Court of Appeal.

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Decision S.C.C.:But in this case no room for judicial review because Cabinet does not owe PFOs here because:

Statutory context: did legislature intend any PFOs? In this case no, nothing in statute to imply PFOs owed by Cabinet in an appealMore like a legislative and general decision making power, less like administrative and specific:

General decision: Cabinet can make decision based on broad political/policy/economic discretionary groundsNot individual concern: decision (rate increase) would affect a large number of people in relatively the same wayCabinet could have made a decision on its own motion without parties, unlike a adjudicative court process – highly policy oriented decisionParliament used to do this rate setting itself, so Cabinet should have same freedomIt is not a lis interpartes i.e. not a dispute between two parties and no assessment of wrongdoingNature of the decision maker: Practicality consideration i.e. not practical for Cabinet to conduct hearings in decisions of this sort, but rather must decide based on reports from the department and Minister. Note: This is perhaps more properly a consideration not for deciding

whether there are any PFO’s or not, but rather what the content of the PFOs should be (e.g. if court had said there were PFOs, could have narrowed their content to allow Inuit Tapirisat to make another submission through the Minister or department)

Comment: Does not mean that Cabinet is immune for PFO: Noted that in some circumstances Cabinet may owe PFOs (and some statutes expressly require it) and can be subject to judicial review (e.g. when Cabinet is acting under statutory authority, to make sure that it does so within the scope of that authority).

Procedural fairness is highly variable, so perhaps there are some circumstances in which PFO would be requiredMere fact that the power was in the Cabinet does not make it beyond JR

May be able to attach PFOs to cabinet when:More likely if its an individualized decisionWhen the statute expressly or by necessarily implication required that PFO be followedBased on a fixed objective or standards of lawDecision making power of Cabinet may be delegated

Vancouver Island Peace Society v. Canada [1994] 1 F.C. 102 (T.D.) Claim: Application for certiorari to quash two decisions (Orders in Council) made by the Governor in Council approving visits of nuclear carrying vessels and nuclear-propelled vessels to Canadian ports and for mandamus to require the respondents to conduct an environmental screening or initial assessment under the Environmental Assessment and Review Process Guidelines Order.

Held: The applications were dismissed. In the course of the judgment, the trial judge identified the key indicators of a “legislative decision” as follows:

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“What constitutes a legislative decision …? At the very least it seems to me the decision must be:

discretionary, usually, but not always, general in its application, based on the exercise of judgment after assessing factors of general policy, of public interest and public convenience, morality, politics, economics, international obligations, national defence and security, or social, scientific or technical concerns,

That is, issues of policy which lie outside the ambit of typical concerns or methods of the courts.”

Difficulty: “The classification of a power as "legislative" is not always easily done, or easily justified.”

Exception to the general idea that legislative decisions will not require procedural fairness:

Homex Realty and Development v. Village of Wyoming (1980) (S.C.C.)Significance: Normally the making of subordinate legislation is legislative in nature, but there may be an exception if the substance of the act is aimed at a particular individual to settle a dispute

Need to look beyond the form of the decision: in this case, was legislative in formBut in substance, what was being done was almost quasi-judicial

Facts: Homex (realty developer) and municipality in dispute over whether Homex had obligation to install services (e.g. sewers) in the subdivision it was developing. Without prior notice to Homex, municipality used it’s bylaw powers to end the dispute, by passing a new bylaw that deregistered Homex’s plan, meaning Homex couldn’t sell any lots without filing a new plan and getting it approved (which of the municipality would only approve if it clearly included services)

Issue: Were there PFOs (such as right to notice and to be heard) that municipality should have given to Homex before passing the new bylaw?

Argued breach of procedural fairness / natural justice

Decision:Although normally the making of subordinate legislation does not attract PFOs, this case is an exception and PFOs were owed (Homex should have had notice and opportunity to be heard before the bylaw was passed) because:

A lot at stake here – property rights

Majority Estey J. (narrower exception):Look at substance not just form (i.e. in form it was a bylaw, which is delegated legislation). Not in substance legislative & general (i.e. affects public) since:

Concerned property and targeted at individual i.e. specific (Homex)To resolve an inter-party dispute that had been conducted along adversarial linesUsed in self-interest of the municipality

Thus the bylaw was really quasi-judicial

Result: However, Homex had not come to court with “clean hands” (i.e. misconduct), and so although PFOs owed, no remedy given

Highlights that remedies are discretionary

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Minority Dickson J. (broader exception):Here property rights at stake, and longstanding line of authority (recall Cooper) that before limit/abrogate property rights must give PF rights (unless statute takes them away). Apparently Dickson says there’s always a public interest in having PFOs when property rights affected.

Not a generalized decision, but deliberately aimed at this entityAgreed must look at substance of bylaw, and not legislative & general but rather specific.

Spectrum idea : There is a spectrum from purely “ministerial” decision on broad grounds of public policy (little or no PFOs) to judicial end of the spectrum (substantial PFOs, particularly when personal or property rights targeted)Would have awarded remedy, since didn’t think the alleged misconduct by Homex had been sufficiently argued before the court

Note: Similar decisions have been followed by other cases like Lafontaine where the offending legislation was aimed at a religious group

EmergenciesAnother reason to not provide procedural fairness is if it’s an emergency or other urgent situation, most often the need to protect public safety

E.g. closing a restaurant where there is a threat to public healthMust always take the administrative context into consideration

Kent: need to separate the prisoners to prevent further problems was urgent, so no need for hearing ahead of timeHowever, after things have calmed down may need to review the decision – at this point PFOs may need to be accorded

Non-Final Decision MakingNOTE: See also class handout

In a multi-stage decision process (e.g. initial investigation that reports to a final decision maker) may be different PFOs at each stage due to differing level of finality.Recall L’H-D in Knight said finality v. non-finality can affect whether there are PFOs owed, and if so how much: “a decision of a preliminary nature will not in general trigger the duty to act fairly”, but note this is an overstatement (some PF owed in both Re Abel and Irvine below).

In some circumstances, if a decision is merely preliminary, PFO may not apply, or at least their content might not be as high as if it was a final decision

Really looking to see what is at stake at each stage: multistage decision making processes

May need to accord PFO at more than one stageIf you are given full hearing rights at the first stage, less likely to have PFO rights accorded at the latter stagesDepends on the type of appeal:

De novo – starting from scratch again, no baggage carried over from previous stage more likely to require PFO since blank slate

Need to exhaust internal appeals before coming to the courts – must exhaust other remedies first

To determine whether there are any PF rights, and if so how much, at a particular preliminary stage, look at important factors (Re Abel):

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Proximity i.e. relationship between stages, how much does a preliminary process affect later ones

How much exposure to harm / impact on individual / seriousness of what’s at stake in the preliminary process i.e. what is at risk if PF not given in this preliminary stageAs always, look at the statutory context as a whole and individual provisions

Re Abel and Director, Penetanguishene Mental Health Centre (1979) (Ont. C.A.)Facts:

Abel found non-guilty due to insanity (this is pre-Charter) and confined in psychiatric institution for duration determined “at the pleasure of the LG in C”.Under Ontario’s Mental Health legislation, to determine if confinement should be continued, an annual review must be held by the Advisory Review Board, and Board had to report/recommend to Cabinet who made final decision.

Recommendation of the ARB is not bindingStatute said Board “may” hold a hearing, and if so requires high end PF (person incarcerated could attend, could have counsel, could call witnesses, etc). Board could ask psychiatric institution where person being held for a report on that person’s behaviour.Abel has such a hearing, but Board refuses to give report from institution to Abel’s counsel (report could contain important observations on Abel’s behaviour affecting his possibility of release). Chair of Board interpreted statute as not allowing him to release the report.

Claim:Abel wants Chairs decision quashed and order of disclosure of report so can refute / respond to it and thus properly participate in the hearing (also wanted release of files in institution, but statute clearly disallowed this).Government argued Board only a preliminary process culminating in a non-binding recommendation, so does not require PF

Decision: Threshold Q : The Board is subject to PFOs, even though it is only a preliminary

investigatory stage with no final decision making powers.Statutory Powers Procedures Act does not apply because it says it doesn’t apply to investigatory processesRefers to author DeSmith for two factors:

Proximity (i.e. interrelationship between the two decision levels): considered the reality of the multi-stage process: final decision maker (Cabinet) unlikely to release patient without a favourable recommendation from preliminary investigatory Board i.e. close proximity between Board’s report and final decision – Board’s report “will effectively determine if Abel will be released”. Although technically not a final decision, it had such a strong effect on the

ultimate decision the PFO should be accorded – if there are procedural fairness defects at this stage, essentially bleed over into the final decision

Degree of exposure to serious harm (interest at stake): interest at stake here is important (loss of liberty for another year until next review if PF not afforded at preliminary stage) More specifically, is there any exposure to harm at this particular

stage?

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Content : Does PFO mean that the report should be released?Generally right to know the case against you (i.e. evidence the decision maker will be using) is part of PFOs, so you can respond to it. So usually PFOs would require disclosure of the report.

However , court has discretion to look at overriding concerns, and two reasons here why report should not be released to Abel:

It might compromise security of institution if Abel knew what staff had candidly said about himPaternalistic reason: it might be bad for Abel’s own mental health to read what institution staff think (e.g. of his chances of recovery / eventual release).

Result: the Chair’s decision was quashed and sent back for rehearing by Board, where Chair should disclose the substance of the report so that Abel can effectively participate, but may use it’s discretion to edit the report before releasing it to Abel to deal with security / mental health concerns (e.g. could send report back to institution and ask them to rewrite it with knowledge it will be released)

Note: still discretionary on the board to choose what information should be released

Comment: (today would also have to consider Charter in this case). With PFOs required at this preliminary stage, are PFOs then also required by final decision maker?

Can’t be categorical: must look at context, interest at stake, role of final decision maker.Might consider whether final decision maker always follows recommendations from preliminary stage. E.g. suppose Board recommended release but Cabinet then refused release – this would suggest need for PFOs at final decision making stage.Might look at process as a whole and ask if sufficient PF overall (so more PF at earlier stages suggest less at later stages OK)If final decision maker (Cabinet) considered other evidence (in addition to Board’s report) PFOs more likelyIf final decision maker (Cabinet) only considering preliminary investigation / hearing report and policy / mercy / clemency aspects, PFOs less likely since more like a pure policy decision (i.e. like legislative, albeit specific/individual).Today, Abel would likely not get hearing rights at Cabinet stage, but would likely get right to see report coming out of Board and opportunity to respond to it (in writing) for consideration of Cabinet

Irvine v. Canada (Restrictive Trade Practices Commission) (1987) (S.C.C.)Facts: Under the old Combines Investigation Act (concerned with competition, forbids monopolies, price setting, etc) there was a 3-stage hearing process:

Stage 1 - Investigation by hearing officer: initial fact gathering (not even fact “finding”) of information about whether Act had been violated. Evidence compelled under oath with right to counsel (specified in Act) and all in camera (i.e. private, so no publicity).

This stage produces no recommendations or charges, just a report of the facts that were gathered, which is sent to Commission.Evidence might also be sent to A.G. of Canada who may consider whether to lay criminal charges (which would give normal full court PFOs).Various restrictions on actions that counsel can take (e.g. can’t cross reference other witnesses)

Stage 2 - Commission: decides whether a hearing is required.If so, full oral hearing with full PF rights for anyone alleged against.Hearing report sent to Minister by CommissionNote: Spin-off to Minister of Justice also possible at this stage

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Dir may convey evidence gathered at Stage 1 to Minister of Justice w/o recommendations/commentsMinister decides independently if there are grounds for criminal prosecutionIf prosecution, full NJ applies and Stage 1 evidence cannot be used against the Accused at trial

Stage 3 - Minister: gets report and may make it public.

Issue:At the first stage, a hearing officer had been appointed and people (against whom suspicions of violating the Act) had been compelled to give evidence.They had counsel, but hearing officer restricted how counsel could be involved

I.e. didn’t let them cross-examine other witnesses, nor examine their own client (although had narrow opportunity to re-examine their client to clarify something), and they could be excluded if a witness didn’t want to testify in front of lawyers.

Claim: restrictions on counsel at this preliminary fact-gathering stage violated PF rights

Decision Estey J.:Refuses relief based on what is at stake at each stage:

PFOs owed depend on degree of potential harm at particular stage – at initial stage degree of harm is low:

It is purely fact-gathering (no finding of fact)Reputations are not at stake (it’s all in private so no publicity)Only outcome is exposure to further proceedingsBefore any harm can come to people has to proceed to next stage (Commission) where there is a full hearing, or if evidence sent to A.G. also will lead to full PFO’s if A.G. chooses to prosecute

Low proximity : there are no findings of fact that might be binding on the next stage, and next stage will re-look at everything

Thus some PF is owed at initial stage (since evidence is being compelled and could be used against people), but only minimal PF and it was sufficiently provided

Comment: policy considerationsInstitutional constraints: Courts must remain alert to the danger of unduly burdening or complicating law making investigatory processes

Where in “embryonic” stages gathering information for further consideration, inclination of courts is away from intervention

Reference to economic crimes: trading crimes are by their nature difficult to investigate – requires more than the regular combination of complainants and informants requires early and investigative action by the state itself

Considers difficulty in prosecuting economic crimes due to difficulty in collecting evidence (hence need for this special initial stage, and so perhaps court relaxed PFOs due to practical considerations so as not to unduly complicate investigatory stages)

5 factors (Baker): nature of decision, of statutory scheme, impact, leg exp, agency choiceTo determine content of PF must look at similar issues as in determining the threshold question, with purpose of participation to ensure fair/open procedure appropriate to statutory context. Balance 5 factors (but says not exhaustive):

1) Nature of the decision and decision making process : look at closeness of administrative process to judicial process

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The more the process provided for, the function of the tribunal, the nature of the d/making body, and the determinations that must be made to reach a decision resemble judicial d/making, the more likely that procedural protections closer to the trial model will be required

More procedural fairness Less procedural fairnessAdministrative & specific decisionsQuasi-judicial process

Resembles adversarial court-like process (two parties disputing)Hearing evidenceApplying legal standardsEtc.

Fact-finding & assessing credibility

Legislative & general Highly discretionaryPolicy oriented

2) Nature of statutory scheme : Consider the role of the particular decision within the statutory scheme and other surrounding indications in the statute help determine the content of the duty of fairness owed

Finality: greater protections needed when there are no appeal procedures provided within the statute or when decision is determinative and no further requests can be submitted

Is it a multi-stage process and preliminary investigation v. final decision?Is there an administrative appeal or redetermination?

Does statute or regulations give PF rights or override common law PFOs (e.g. as in Singh Wilson J. is statute intended by legislature to be exhaustive for PFOs)Is case arguing for ordinary scheme to be followed or looking for an exception (which might suggest less PF)

3) Importance of the decision to the individual affected (impact) : The more important the decision is to the lives of those affected and the greater its impact, the more stringent the procedural protections must beOften a very heavily weighed factor

4) Legitimate expectations of the person affected : Consider if any legitimate expectations, which has 2 meanings:

If the claimant has a legitimate expectation that a particular procedure will be followed [because of the representations, regular practices, or promises of the decision-maker] then this process must be followed

Again, legitimate expectation is only a procedural right, not substantive

If the claimant has a legitimate expectation of a particular substantive result, then more extensive procedural protections than would otherwise be required may be necessary before he/she can be deprived of that outcome

Can’t be used substantively to actually get that result, but can be used to argue for more PF before expected result denied.

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5) Consider why agency made choices of procedure that it did Must take into account, respect, and “give important weight to” the choice of procedures made by the agency itself and its institutional constraints

Look at institutional constraints on agency / practicalities such as not overburdening system (especially if has to make 1000’s of decisions), expediency, informality, etc., which can all be trade offs against requiring high PFOsConsider institutional constraints – Irvine, Inuit Tapirisat, Kent

Justice L’Heureux-Dube suggests that respecting the choices of agencies re procedures is particularly appropriate when:

the statute gives d/maker the right to choose what procedures to follow or when the d/maker has an expertise in choosing what procedures are appropriate in the circumstances

BUT this cannot be determinativeGenerally, courts in practice do not give too much deference to this factor, but it nonetheless should be addressed

NEXT STEP: Once you’ve determined what the content of PFO should have been using the Baker factor, must then see if they were in fact sufficiently provided for

Baker v Minister of Citizenship & Immigration (1999) (S.C.C.)In Baker case looking at these 5 factors:

No legitimate expectations (i.e. no promises / conduct by officials to Baker suggesting she would be given more PFOs, nor history of giving oral hearings) neutral

Baker had argued that she had a legitimate expectation primarily because the government had signed the UN Convention on the Rights of the Child with respect to certain issues, this created a legitimate expectation that her children would get greater consideration Rejected:

Convention didn’t provide any greater protections than would normally be provided under common law – no holding out of higher procedures simply by signing this ConventionConvention did not give Baker any substantive expectation with respect to a particular outcome

Nature of decision : Minister has high level of discretion and must consider many factors, not very court-like suggests less PFOs

Humanitarian + compassionate grounds is very different from a court decision because its highly discretionary from the outset – required consideration of many factors that are not based on legal rules (really a granting of clemency)

No dispute between parties here, but simply a decision of whether discretion should be grantedNo real dispute about the facts – only issue is about whether H+C should be exercised

Statutory scheme is that ordinarily people will apply for permanent residence from outside Canada, whereas here Baker applying for exception to this suggests less PFOs

Role of this decision is to act as an exception to ordinary legal rules – implication that this makes it a lesser kind of right (asking for something that the law wouldn’t normally provide) less PFOs

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No statutory right at issue here (which would have suggested more PFOs), rather asking for discretion

BUT: there is no appeal process here, so this is the only opportunity to make their case suggests more PFOs

Impact here on both Baker and her children very significant, and no administrative appeal suggests more PFOs

Administrative choices: Statute gives Minister much flexibilityProbably in favour of less PFOs because Minister given broad discretion, regular practice is not to grant oral interviews

Held: Balancing these factors L H’D concludes no need for oral proceeding, rather written submissions sufficient to hear all relevant information.

PF requirement is “not merely minimal”Full and fair consideration is required – must have a meaningful opportunity to present evidence and have it fully and fairly consideredSome factors point in favour of more PFOs and some to less PFOs

Reasons RequirementIn Baker, it was held that the Minister was required to give reasons for the denial of H + C after the hearing process

Prior to Baker, generally did not need to provide reasons in the admin law contextHowever, might want to provide reasons because:

Better decisions: requires justifications and logical step by step analysis, reduces chances or arbitrary or capricious decision makingAccountability: reasoning process is more open, not a mystery Legitimacy: reinforces public confidence in decision makingInstrumental: if there is going to be an appeal, helps to determine on what basis to ground the appeal

However , still need to consider institutional constraints: duty to give reasons may slow the process or take up too many resources

What is the content of the duty to give reasons? Should likely not need to be as voluminous and detailed as court decisions unless it is a full judicial-type process

Concern that may just lead to giving “canned reasons” without really reflecting (but isn’t this better than no reasons??)

BakerJustice L’Heureux-Dubé stated: “In my view, however, these concerns can be accommodated by ensuring that any reasons requirement under the duty of fairness leaves sufficient flexibility to decision-makers by accepting various types of written explanations for the decision as sufficient.”

So the duty to give reasons varies along the spectrum of procedural fairness requirements

Concluded: There is a duty to give reasons in some circumstances – not a strict rule Listed three circumstances where the reasons requirement would apply:

In cases such as this where the decision has important significance for the individualWhere there is a statutory right of appealOr in other circumstance (murky!)

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Is this case, reasons requirement was fulfilled when Baker received Lorens’ notes:

This is what the state tendered when reasons were requested (but these notes weren’t really well reasoned!)Again, it was these notes that were used to establish a reasonable apprehension of bias!

Constitutional and Quasi-Constitutional ProvisionsCan use constitutional (Canadian Charter of Rights and Freedoms) and quasi-constitutional (federal Bill of Rights, Quebec Charter of Rights and Freedoms) grounds to challenge certain PF issues:

To override / trump legislation (when legislation limits PFOs that common law would otherwise grant) i.e. to avoid defence of statutory authorization. Note fundamental justice means all PFOs, so if can show, say Charter s.7 is triggered, then can argue that all PFOs (such as need for notice, delay, reasons, etc.), rule against bias, lack of independence, etc. all apply.To obtain more PF rights (unlikely this can help, since, for example, courts have said Canadian Charter s.7 “fundamental justice” means what the common law gives)

Charter s.7 analysis (e.g. see Blencoe)Does administrative decision deprive (or threaten to deprive) anyone of life, liberty or security of the person (note courts are concerned not to define life, liberty or security of the person too broadly so as to subsume all other Charter rights).If so, is this deprivation in accordance with principles of fundamental justice in both:

A procedural sense (i.e. are procedure consistent with principles of fundamental justice), andA substantive sense (i.e. is this fundamentally unjust regardless of procedure)

If s.7 breached, is legislation provision saved by s.1 (only rarely will s.1 save a s.7 breach)

Other Charter provisions that are also relevant:S.2 freedom of expressionS.8 right to be secure against unreasonable search or seizureS.9 right not to be arbitrarily detained or imprisonedS.12 right not to be subjected to any cruel or unusual treatment or punishmentS.13 right not to have any incriminating evidence given in any other proceedings use against them (except for perjury)S. 14 right to interpreters

Bill of Rightss. 1(a)s. 2(e)

When do you resort to such provisions? Key point : To override legislation that denies or limits procedural fairness

Since statute overrides common law, normally you would be stuck unless can apply Bill of Rights or Charter – statutory authorization defence

E.g. statute precluding a procedure that would normally apply under common lawTo get better rights (unlikely)

E.g. if security of the person is at stake, may try to argue that the fact that this is a constitutionally protected right means that the content of PFO should be higher

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HOWEVER, this hasn’t been argued successfully – the notion of what fundamental justice requires is a flexible concept – like common law PFO, is variable depending on the context

Why would you use the Bill of Rights as opposed to the Charter?If both the Charter and the CBR apply, you don’t want to invoke the Bill of Rights – Charter is by far the better document if it appliesHowever, there are some ways in which the Bill of Rights is broader than the Charter

CBR s. 1(a) includes right to enjoyment of propertyDeliberately left out of the Charter because of concern to what courts would do with property rights embedded in the constitutionHowever, the rest of the provision tends to overlap with the CharterNote: refers only to individuals – probably can’t be invoked by a corporationSimilarly, charter refers to people

CBR s. 2(e) – broader than the CharterRefers to persons so might be able to refer to corporations

Canadian Bill of Rights Canadian Charter of Rights and Freedoms

Federal statute, so only binding on federal legislation and federal administrative decision making (not provincial), but in 4 respects potentially broader than Charter

Applies to all federal and provincial legislation and administrative decision making

Quasi-constitutional (enacted 1960, purports to have primacy over other legislation and no equivalent of Charter s.1, but not entrenched so courts reluctant to give it strong role and few cases where effective, although Singh thought to re-energize it somewhat)

Entrenched in constitutionS.1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society

S.1: It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely:S.1(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law “Individual” (probably not corporations) “Enjoyment of property” (for

individuals) “Due process of the law” (US wording)

S. 7 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 “Everyone” (does not include

corporations) No mention of property (and generally

economic rights not protected either) “Principles of fundamental justice” (did

not want to include US jurisprudence with US wording)

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S.2 Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to:

S.52 The Constitution of Canada is 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.

S.2(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations s.2(e) triggered whenever “determination of his rights and obligations”, perhaps broader than s.7 “life, liberty and security of the person”

“Person” may include corporations, unlike s.1(a) or s.7

Authorson v. Canada, [2003] (SCC)Facts: Authorson represented a class of disabled war veterans who received benefits and pensions under several federal statutes; because they were deemed not competent to handle their own affairs, these funds were administered by the DVA on the veterans’ behalf.

Prior to 1990, the DVA did not invest the pension funds nor pay interest on them; in 1990 this changed and the DVA began to pay interest; at the same time, Parliament passed s. 5.1(4) of the DVA Act which provided for a statutory bar on claims by the veterans for the “lost interest” in the past; that provision provided as follows:

5.1 (4) No claim shall be made after this subsection comes into force for or on account of interest on moneys held or administered by the Minister during any period prior to January 1, 1990 pursuant to subsection 41(1) of the Pension Act, subsection 15(2) of the War Veterans Allowance Act or any regulations made under section 5 of this Act.

It was estimated that the lost interest might be as much as 1 billion dollars.

Claims: The veterans sued claiming that the statutory bar violated the CBA section 1(a) and 2(e). These provisions state:

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

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. . .2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

. . . (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations

More specifically, the veterans argued as follows:

Re CBA s.1(a): 3 arguments made re why s.1(a) had been violated:

1. No procedural rights were accorded to A. prior to the passage of the statutory bar by Parliament (weak argument)2. No procedural rights were accorded to A. before the statutory bar was applied to him3. “Due process” can be applied substantively and it protects A from governmental expropriations of his property without compensation

Re CBA s.2(e) it was argued that the statutory bar was a “determination” of A.’s “rights” and therefore he should have had a “fair hearing” before Parliament expropriated his interest in the pension funds

Held: The SCC rejected all of Authorson’s arguments and upheld the statutory bar. The CBR provisions did not prevent Parliament from legislating as it had.

REASONS

Re alleged breach of CBA s. 1(a)

Claim: parliament had accorded no procedural rights prior to passage of the statutory bar:

SCC held that there is no right to be heard prior to the passage of a statute; s.1(a) does not accord “pre-legislative” procedural rights

A key limit on CBR s.1(a) as established in the jurisprudence is that this section only “declares and recognizes rights that existed in 1960 when the CBR came into force (i.e. only protects rights of a kind that were recognized in the law in 1960) – in 1960 (and now) there were no PF rights attached to the passage of statutes by Parliament (see para 33 of extract)

Here, there is no application of the law to a specific case: no discretionary application on a case by case basis, no delegated decision making – bar acts automatically

Claim: A had no PF prior to the time the statutory bar was applied to his caseSCC held that in this case, there was no discretionary application of a legislative provision in an individual instance but rather a non-discretionary application of law to incontestable facts – no procedural protections arise in such a case

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CBA s.1(a) does provide an individual with procedural protections (notice and a right to be heard/right to contest) when their property rights are subject to deprivation by the government under a law that requires the exercise of a discretion or judgment in specific factual contexts by a court, tribunal or similar body

E.g. could use s.1(a) to guarantee fair procedures if a veteran was being deprived of a disability pension on the basis that he/she was not disabled or was not injured in the course of employment in the armed forces – individual claim

BUT that is not the case here

CBA s.1(a) does not provide procedural protections when government through legislation completely eliminates all such benefits for all possible claimants

E.g. Could not use s.1(a) as a taxpayer when the tax rates change for your category of taxpayer – decision not related to your individual context

Claim: “due process” can be applied substantively and it protects A from governmental expropriations of his property without compensation

I.e. claims s.1(a) provides him with a substantive right against state expropriation of property without just compensation

This claim fails because no such right existed in 1960:Our legal system has always recognized the right of the legislature to pass legislation to expropriate property without compensation as long as it does so clearly enough. CBR does not protect against expropriation of property through the passage of clear and unambiguous legislation as was the case here.

SCC also notes the court’s reluctance to use s.1(a) substantively and cites the Lochner era in the US as one reason for this

Re alleged breach of CBR s.2(e)

Held: s. 2(e) applies b/c and the statutory bar is a “determination” of A.’s “rights” and therefore entitled him to a “fair hearing” before Parliament expropriated his interest in the pension funds

S. 2(e) only applies in the context of proceedings before a tribunal or administrative body that determines individual rights and obligations; all of s.2 rights are legal rights in the context of , or prior to, a hearing before a court, tribunal or similar bodyS.2(e) does not apply to Parliament when legislating

Section 7Process:1) Is section 7 triggered? I.e. is there a deprivation of life, liberty or security of

the person through state action?2) If so, is the deprivation by the state in accordance with the principles of

fundamental justice?Procedurally (our main focus) – state can only infringe rights is they undertake proper procedureSubstantively – the state is never allowed to violate this right through this action

Not invoked very oftenSuresh – normally, deportation to face torture will substantively offend PFJ, but left open possibility that there might be some circumstances where state could do this

E.g. death penalty

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Procedurally – permissible as long the procedures that lead to death penalty are impeccable (perhaps the case in the US)Substantively – its never permissible for the state to put someone to death (as is the case in Canada)

3) If contrary to PFJ, can it be saved under s. 1?

Singh v. Minister of Employment and Immigration [1985] (SCC)

Statutory ContextUnder international agreements, Canada has agreed to recognize the claims of convention refugees, defined as persons who have a well-founded fear of persecution in the country from which they are fleeing because of their race, religion, nationality, membership in a particular social group, or political opinionsRefugee status is recognized under the Immigration Act. If such status is granted, the refugee has the following statutory rights:

right to have a determination made about whether or not a permit should be issued to allow him/her to remain in Canada [granted unless person is criminal/subversive]right not to be returned to country where persecution is feared right to appeal any deportation order

Immigration Act at the time Singh was decided established the following three-stage process by which claims for refugee status were determined

(1) Immigration Officer stage:a claim is made by an alien in CanadaI.O. examines claimant on oathcounsel rights are afforded transcript of examination resultstranscript goes to claimant and RSAC

(2) RSAC stage RSAC reviews claim + transcript no further info is rec'd from or given to the claimantRSAC can rely on general policies/knowledge of world events w/o advising claimant about these matters and w/o hearing from him/her about themRSAC decides if claimant is or is not a refugee and advises “the Minister” accordinglyMinister had lawfully delegated his/her d/making power to the Registrar of RSAC so in effect it seems RSAC decision essentially becomes the Minister’s decision

(3) Immigration Appeal Board stage:unsuccessful claimant can apply to IAB for a redetermination of his/her claimclaimant submits the transcript of the examination and a declaration on oath setting out basis of the application for redetermination and the facts/evidence/information and submissions that wd be relied on at redetermination hearing (if one is held)on the basis of these materials IAB considers whether there are reasonable grounds to believe claim could be established at a redetermination hearing:

if so, a full oral hearing will be heldif not, claimant found not to be refugee without further process

KEY POINT: a claim for refugee status could be determined against an applicant:

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without there being an oral hearing by a decision/maker at any stage of the process and without the applicant having an opportunity both to “know the case against him” and to respond to that “case”

I.e. the RSAC could take into account general policies/knowledge of world events w/o advising the claimant about these matters and without hearing from him/her

Situation in This CaseAppellants were convention refugee claimantsRSAC determined they were not refugees and they applied to the IAB for a redeterminationIAB held that there were no reasonable grounds to believe their claims could be established at a redetermination hearing and they were found not to be refugees w/o an oral hearing

Application for Judicial ReviewAppellants challenged the validity of the claims determination process arguing that it violated their rights under s.7 of the CharterAfter oral argument SCC asked for written submissions re whether the process was consistent with s.2(e) of the Bill of Rights

SCC DECISION AND RESULT3 judges (per Wilson J.) held Charter s.7 was infringed 3 judges (per Beetz J.) held B/R s.2(e) was infringed1 judge retired and did not take part in the decision

Wilson J. (3): Immigration Act is exhaustive (i.e. it clearly specifies the whole 3-stage process and specifically excludes oral hearings in specified situations) so cannot provide more PFOs through common law

Resort to the Charter because the statute itself made it clear that the courts could not use the common law to breathe more procedures into the process – not possible for the court to impose and oral hearing into the process have to read the statute as all encompassing

Although Charter should be remedy of last resort, here is does violate Charter s.7 and not saved by s.1:

On security of the person:Wrongful denial of refugee status would deprive claimant of Charter s.7 security of the person

A.G. argued it was not Canada that would directly deprive the person of security of person but the country they were fleeing from – Rejected: “Everyone” in s.7 means everyone physically present in Canada (not

just citizens) Security of the person includes freedom from state imposed threats

such as deportation here If Canada makes a wrong decision about refugee status and they are

returned to a country where they will be persecuted, then Canada will be indirectly implicated in this persecution

On fundamental justice:Deprivation here not in accordance with principles of fundamental justice which requires PF

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What is fundamental justice? Varies depending on the context, but fundamental justice means at least common law procedural fairness

Although PF does not always require oral hearing, claimants must have adequate opportunity to know the case against them and adequate opportunity to be heard / respond

Neither satisfied here due to RSAC taking general policies and knowledge of world events into account without telling claimant or giving them chance to respond (and this does into stage 3 at IAB), Further, oral hearing required here since credibility an issue In our adversarial system, there is a belief that the best way to assess

credibility is through an oral hearing, not simply through written submissions. “…even if hearings based on written submissions are consistent with the

principles of fundamental justice for some purposes, they will not be satisfactory for all purposes. In particular, I am of the view that where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing.”

Thus there should be an oral hearing at some stage.

On section 1:Not saved by s.1, since doubtful if administrative convenience could ever justify procedures that violate s.7

In any case not enough evidence presented here to make out arguments that no oral hearings before denial of the claim was a reasonable limit Minister argued that given process was consistent with other countries and the

UN, and because IAB already overloadedWould require very compelling evidence Doubtful such “utilitarian” consideration could justify a limitation when s. 7 rights at stake: “Certainly the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so.”

Decision Beetz J. (3):

Expresses no views on Charter argument, instead bases decision on Bill of Rights.Contends that if you can settle an issue without resorting for the Charter, you shouldn’t invoke the Charter.

Bill of Rights s.2(e) applies since process is making a “determination” of claimant’s “rights”, so claimant has a “right to a fair hearing in accordance with the principles of fundamental justice”.

S.2(e) does not always mean an oral hearing is required – to determine content of fundamental justice requirement must consider:

Nature of the rights in issue Here important rights such as life, liberty, etc.)Severity of possible consequences on the individual Here serious, could lose life, liberty, etc.Whether findings of fact must be made and/or the credibility of the claimant assessed E.g. consider value of cross-examination when conflicts in evidence Here yes to both

Thus claimants in this case should have had an oral hearing at some stage

REMEDY: case remitted to IAB for full hearing of claims on the merits

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Resulted in major changes to the immigration system that an oral system has to be part of the process

Comment: s. 7 has been fairly conservatively interpreted by the courts so far – narrow approach to the meaning of these terms

Liberty = freedom from incarceration or restraintSecurity = certain level of psychological security being involved, bodily integrity of the individual

New Brunswick (Ministry of Health & Community Services) v. J.G. (1999) (S.C.C.)

Facts: temporary but lengthy (6 month) removal of child from parents and into custody of state, and state wanted to extend this period. Mother was indigent poor and on social assistance (thus no money to hire a lawyer) but was not eligible for legal aid (since custody battles not covered). Lawyer worked pro bono for parent, and after 3 day custody hearings (with many witnesses produced by minister) custody order is extended.

Applied for legal aid but was denied.

Custody hearing went ahead, but then several months later brought another case on the Charter issues.

Issue: Parent claimed Minister should have paid for legal counsel and that failure to do so violated her s. 7 rights.

Decision: although case moot (since parent did have counsel) S.C.C. still heard it since important issue of national importance and difficult for issue to reach court otherwise:

Mootness is one of the grounds for which a court can refuse to hear a case. But here, the court proceeded because:

Is there an adequate adversarial context (full evidentiary basis on which the case can be decided)? = YesIs the question of significant (national) importance? = YesWould it otherwise be evasive of review (otherwise not be heard)? = Yes

Court concluded that they would not be overstepping their institutional role since issues not abstract and there was evidentiary basis on which to hear the case.

Was security of the person at stake? = YesS.7 security of the person protects physical and psychological integrity of the person, which is violated here because:

When is psychological integrity engaged? Need to define fairly narrowly - must be serious psychological distress, and must be assessed objectively from a reasonable person standard

“The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility.”  “This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety.” 

In this case:Parent losing custody of child has a serious and profound affect on parent’s psychological integrity (“must be greater than ordinary anxiety”) Loss of companionship of the child and ability to raise the child

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Gross intrusion into the private and intimate sphere of the family Parents identity is bound up with being a parentParent stigmatized as unfit parent

Therefore, court didn’t have difficulty concluding that security of the person was engaged

Were the sanctions in accordance with PFJ? = NoAlthough recognised that sometimes children need to be removed from the custody of their parents, fundamental justice requires fair proceedings i.e. opportunity to present their case and refute case against them.

To determine if this includes right to counsel (which it did in this case) consider three factors:

The seriousness of interest at stake Custody at stake, seeking to extend length of custody, had already been

separated from a year seriousness varies depending on the length of the separation

The complexity of the proceedings Very high: 3 day hearing, 2 expert witnesses, 14 affidavits, 15 witnesses,

difficult evidentiary questionsThe capacities of the particular parents to represent themselves S.C.C. said it will be only a rare parent that could do so due to educational

requirements and due to emotional difficulties Highly emotional, foreign environment of the court room

In this case, there was a high risk that won’t be able to make an informed decision without giving the mother right to counsel

Section 1Charter s.1 did not save denial of state-funded counsel here because negative effects on parents by not providing counsel would far outweigh any “pressing objective” of saving money (which would not be significant in dollars)

Did not examine all the stages of analysis, but concluded that even if everything else worked out, would not constitute a minimal impairment because the deleterious effect to the individual far outweigh the minimal salutary effects of saving the state money

Note: Obligation on the state to provide legal counsel would only apply where the parent would not have any other means to get counsel decided on an individual basis

Comment: seems unlikely that from these 3 tests that counsel will not be necessaryRights protected under s. 7 are very significant and not easily overriddenRarely will a violation of PFJ be upheld as a reasonable limitS. 7 violation not easy to save under s. 1

Blencoe v B.C. (Human Rights Commission) (2000) (S.C.C.)Significance: Clarifies when s. 7 might be triggered and how delay is treated under common law procedural fairness and when might get a stay of proceedings

Background: Human rights systems (such as that under the B.C. Human Rights Act) exist partly because common law didn’t recognize discrimination as a tort. Now statutes (such as the B.C. Human Rights Act) prohibit discrimination on a list of grounds. It was a complaint-based system (common complaints include employment and provision of services to the public, which includes governments and private establishments such as hotels, restaurants,

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etc). The system has significant delays due to increasing number of complaints and limited government resources. Human rights complaint process:

Complaint made by individual or group to Human Rights CommissionCommission appoints investigator:

Complaint may be summarily dismissed (if frivolous, too old, outside jurisdiction of statute, etc)Investigator gives notice to respondent who gets opportunity to respondInvestigator prepares report recommending either to dismiss the complaint or proceed to full hearing (and usually complainant and respondent get copy of report and can make submissions in response to it)Serious remedies can be imposed on a finding of discrimination, such as compensation for lost wages, reinstatement, damages for hurt feelings / humiliation / loss of dignity, affirmative measures to avoid future discrimination, etc.

Commission decides whether to proceed to hearing (so note complaint can be dismissed without a full oral hearing):

If so, Human Rights Tribunal (a separate adjudicative body that acts in a court-like manner) starts again from scratch - full oral, court-like proceedingIn other jurisdictions the Commission often presents the case for the complainant, but in B.C. both parties have their own counsel (although Commission may appear in important cases)

Note: can see that there are some PFOs in place before the tribunal Respondent always has a chance to respond (although complainant may have their case dismissed without having chance to respond)

Facts:Blencoe (Cabinet minister) had complaint of sexual harassment made against him by employee (and was removed from Cabinet and caucus as a result).Investigation commenced, but delays (including unexplained inactivity for 5 months) and took about 2 years from initial complaint until investigator recommended hearing to CommissionCommission decide to hold hearing and schedule hearing for a year later (so now almost 3 years after initial complaint, during which media frenzy)Referred complaint to the BC Human Rights Tribunal

Claim: Blencoe seeks judicial review to have tribunal hearing stayed; claiming delay represents a denial of PF

Blencoe complains that delay was a deprivation of his section 7 rights – requests a stay of proceedings

B.C.C.A.: stay given due to violation of Charter s.7 by state delay causing stigma and serious stress on Blencoe’s psychological integrity

Imported ideas from criminal case law under Charter s.11(b) “any person charged with an offence has the right to be tried within a reasonable time” into this administrative context, but S.C.C. critical of thisCriticism: paid no attention to the rights of the complainant

S.C.C. majority decision (5) Bastarache J.:

On the CharterCharter does apply to Human Rights Commission (and the Tribunal) since it is part of government (albeit quasi-independent)

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Commission is a government actor – carrying out a legislative program on behalf of the state, and using government delegated powers to do so

Are s.7 “life, liberty, security of the person” interests at stake? NoLife – does not apply here

Liberty – can apply in administrative context, if imposes physical restraint or limits important and fundamental personal choices about how to live one’s life

I.e. interferes with core of personal autonomy. Approves previous cases: Right of parents to choose child’s medical treatment – Re B, Municipal employees can’t be restricted to those living in municipality -

Godbout Does not apply here

Security of the person – protects a person’s bodily and psychological integrity from serious interference by the state, so need to show:

Causation i.e. state caused the interference Court doubted close enough nexus between state and Blencoe’s suffering

here (Commission and delay not responsible for media frenzy and removal from Cabinet/caucus)

Merely exacerbating existing suffering unlikely to violate s.7 (and probably not exacerbated enough here though didn’t have to decide here since failed on seriousness test)

Caveat: Doubted these connections, but proceeded anyway to consider the other factors – unlikely that delay have caused them, but admitted that could have exacerbated the problem

Seriousness on an objective basis i.e. would a reasonable person suffer a serious and significant loss of psychological integrity beyond mere interference with dignity, reputation or stigma Apparently only to be found where state interferes with fundamental

personal choices such as parental custody in New Brunswick (but this confuses security of the person with liberty)

Court said any human rights complaint will cause some stress on respondent, and although delay here exacerbated it still not serious enough Have to look at not just the seriousness of the stress, but also the

origin of the stress: Section 7 does not contain a freestanding right to be free from

stigma, no freestanding protection of reputation Thus s.7 not triggered in this case , but S.C.C. noted this does not mean delay

could never do so in a human rights proceedings (e.g. from a complainants perspective, might be suffering ongoing discrimination)

On the ordinary common law PF principlesDelay can interfere with fairness of process (and stay can be ordered or expedited hearing) if on the facts can be shown to have caused actual prejudice / ability to argue or refute case Significant prejudice from an unacceptable delay could give rise to a stay of proceeding IF:

Cannot make full answer and defence because of the delayE.g. witnesses die or relocate, memories fade, documents are lost, etc. – not so in this case

Or delay amounting to an abuse of process (even if the fairness in an evidentiary sense is there)

Delay can amount to an abuse of process in rare cases even without prejudice to PF (and presumably stay can be ordered or expedited hearing) if:

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Inordinate and unreasonable delay – must consider context: Nature of proceedings – here human rights proceedings can be

protracted due to high PFOs e.g. to give parties time to respond to investigators report, etc.

What and who caused the delay (party responsible for delay can’t then claim) – here respondent contributed to the delay by raising objections

Complexity of the case AND causes significant stress and/or stigma AND brings the human rights system into disrepute

Here delay will not effect public’s confidence and sense of fairness / decency

Here, delay was not unreasonable or inordinateDid not meet abuse of process = no breach of common law PF

Result: – delay did not cause actual prejudice to the fairness of the trialThus neither Charter argument nor common law PF argument successful (so no stay), but there were inefficiencies (e.g. 5 month delay) so costs awarded to Blencoe (and to the complainant as well)

Minority LeBel J. (4): Should get order for expedited hearing, not a stay of proceedings

Refused to consider s.7, and on administrative law principles said delay was an abuse of process, but not appropriate to stay hearing Would be excessive and unfair remedy when taking into account rights of complainant and public interest in complaints being heard, but should be ordered expedited.

Should have possibility of stay for some cases, but not hereBut should be able to ask for an order for an expedited hearing – Blencoe should have been able to get this

An unreasonable delay is abusive unreasonableness is assessed in light of the following factors re: the delay

Its length – time take compared to the inherent time requirementsIts causes beyond inherent time requiredIts effect/impact

Key difference from majority: delay need not bring the human rights system into disrepute in order to be an abuse of process

Suresh v. Canada (Minister of Citizenship and Immigration) (2002) (SCC)

Facts: Suresh, a Convention refugee from Sri Lanka, applied for immigrant status in Canada. In 1995, the government rejected his application and ordered that he be deported on the basis that he was a security risk. The Canadian Security Intelligence Service (CSIS) had claimed that he was a supporter and fundraiser for the Liberation Tigers of Tamil Eelam, an alleged terrorist group in Sri LankaThe Federal Court of Canada upheld the deportation order. Following this the Minister of Citizenship and Immigration issued an opinion that declared him a danger to the security of Canada under section 53(1)(b) of the Immigration Act and consequently should be deported.

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Suresh had presented written and documentary evidence to the Minister, however, he did not have the chance to get a copy of the memorandum of the immigration officer and did not get a chance to respond to it.

Under the old Immigration Act 53(1)(b): allows the Minister in exceptional cases to order the removal of a person to a country where their life or freedom would be threatened

Court determines this is not unconstitutional

Issue: Challenged the Immigration Act on the grounds that it violated his s. 7 rights (and s. 2(b) and 2(d) rights)

Argument: If there is a chance that he is going to be sent back to Sri Lanka to face torture, the Canadian government would then be implicated in his torture and that would be contrary to the principles of fundamental justice

Held (unanimous): The Court held that under the Charter, in most circumstances the government cannot deport someone to a country where they risk being tortured, however, it was ruled that refugee claimants can be deported to their homelands if they are a serious security risk to Canadian society.

Right to liberty under s. 7It was held that deportation to a country where there is a risk of torture deprives the refugee of their right to liberty and security of person. The primary issue was whether the deprivation was in accordance with the principles of fundamental justice.

Fundamental justice?The Court identified fundamental justice to be "the basic tenets of our legal system", and are determined by a contextual approach that considers the "nature of the decision to be made".

PFJ is not identical to common law PF but the same principles underlie both

To determine what PFJ requires in any given case when s.7 rights are at issue, use the Baker five factors to “inform the analysis”;

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Nature of the decision: Fair amount of discretion on part of the Minister: must evaluate not only the past actions of and present dangers to an individual, but also the future behaviour of that individual.  Neutral: “nature of the decision militates neither in favour of particularly strong, nor particularly weak, procedural safeguards.”

Nature of stat schemeThere is no provision for a hearing, no requirement of written or oral reasons, no right of appealSuggests the need for strong procedural safeguards

Importance of rights affectedInterest in remaining in Canada is highly significant, not only because of his status as a Convention refugee, but also because of the risk of torture he may face on return to Sri LankaDeportation from Canada engages serious personal, financial and emotional consequencesMilitates in favour of heightened procedural protections

Legitimate expectationNot mentioned

Choice of proceduresGiven short shrift: overwhelmed by the other factors here, particularly the importance of the rights affects

Here, the Court must balance between the government's interests in preventing terrorism and the refugee's interest in protection from torture. The Court finds that deportation of a refugee who risks torture is unacceptable.

Torture is incompatible with justice it is fundamentally unjust

Concludes: fairly high level of PFOs is required at this stage, though not an oral hearing

Once Suresh established that there was a risk of torture or similar abuse, he had a full right to be informed of the case he had to meet

Should have right to know what was in the memo from GautierShould have had opportunity to respond in writing

Minister required to provide written reasons “that articulate a rationally sustain the finding” that a person will not face torture

Otherwise, how could he challenge on a substantive basis that this was an unreasonable act of discretion

Common law rules of procedural fairness should inform s. 7Full oral hearing unnecessary when Minister is deciding whether to return a person, but they must know the case to be met

Don’t need the quasi-judicial, full oral hearing, but must know what evidence they should submit to meet the case.

Section 1:Not justified under s. 1 of the Charter because a valid purpose does not override the requirement of fairness. Extra step to provide fairness is not onerous on the state, so you’d better do it

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Result: In conclusion, the Court finds that the deportation order given by the Minister to be unconstitutional but the provisions of the Immigration Act are constitutional.

Charkaoui v. Canada (Minister of Citizenship and Immigration) (2007) (SCC)Facts: In 2003, Adil Charkaoui, a permanent resident in Canada since 1995, was arrested and imprisoned under a security certificate. The evidence upon which the certificate was issued is secret, disclosed neither to Charkaoui nor his lawyers. Public summaries of the evidence issued by the Federal Court alleged a connection with "the bin Laden network". Charkaoui appealed his detention three times before being released on the fourth try in February 2005, having spent almost two years in Rivière des prairies prison in Montreal. He was released under severely restrictive bail conditions.

Charkaoui has never been charged or tried. The certificate against Charkaoui has never undergone any judicial review; the Federal Court suspended its review process in March 2005.

Issue: the constitutionality of procedures for determining the reasonableness of a security certificate and for reviewing detention under a certificate.

Key problem was the secrecy componentRational purpose: to protect sensitive national security information – not irrationalBUT this prevents Charkaoui and people like him from knowing the case they have to meet

Held (McLachlin for a unanimous court): The security certificate process, which prohibited the named individual from examining evidence used to issue the certificate, violated the right to liberty under section 7 of the Charter (and sections 9 and 10).

Procedures required to meet the demands of PFJ depend on the context; Question is whether the process is fundamentally unfair or flawed; National security context can be taken into account in deciding whether a process is fundamentally unfair or flawed

For example, that context may mean that the “usual” form of procedures may have to be modified or replaced by adequate substitutes But if the PFJ are not respected, any state justification of using procedures that do not meet the requirements of PFJ must be dealt with under the s.1 analysis and not under s.7

Security concerns cannot be used to excuse procedures that do not conform to fundamental justice at the s.7 stage of analysis

Result: Court declared the "judicial confirmation of certificates and review of detention" to be of no force and effect, striking down articles 33 and 77 to 85 of the Immigration and Refugee Protection Act, but suspended the ruling for one year.

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Distinction between balancing at s. 7 and balancing at s. 1The question at the s. 7 stage is whether the process is fundamentally unfair to the affected person. If so, the deprivation of life, liberty or security of the person simply does not conform to the principles of fundamental justice. 

The fact that we are dealing with security threats, this will be taken into account when determining what is fair. Notions of fairness will always be malleable depending on the context balancing going on at the s. 7 level.

The inquiry then shifts to s. 1 of the Charter, at which point the government has an opportunity to establish that the flawed process is nevertheless justified having regard, notably, to the public interest.

Once we’ve determined what is fair (under s. 7), under section 1 will determine if this identified fairness can be outweighed by our social concerns

National security can inform the process, but cannot be used as a trump: “It follows that while administrative constraints associated with the context of national security may inform the analysis on whether a particular process is fundamentally unfair, security concerns cannot be used to excuse procedures that do not conform to fundamental justice at the s. 7 stage of the analysis.” 

Fairness be informed by the context, but cannot be defined by the context security concerns do not automatically allow us to be unfair.

Three principles of fundamental justice:Is the judge independent and impartial? YesDoes the judge make a decision based on the facts and law? No

Restrictions of secret evidence, without the individual being able respond to it, means that not all of the evidence is avalaible

Has the person had the opportunity to meet the case against them? NoNo, because of the secret evidence can’t respond to all of it.

Section 7 is violated: Gone to far since two of the principles of fundamental justice are not being met Therefore, must be saved under s. 1 to be constitutional

Section 1 AnalysisCourt held that the certificate process was not minimally impairing. The Court cited a clearance system used elsewhere in the world that would designate certain lawyers to view the evidence on behalf of the accused special advocates. Because there are alternative ways that the secret evidence could be dealt with, much more attention could be paid to the interests of the individual therefore, not minimally impairing since other options available

Aftermath: Parliament has now established legislation that recognizes that there is a section 7 problem and they are trying to reduce this impairment by instituting a system of special advocates.

Framework for Analysis of a S. 7 Challenge(1) Does the administrative decision at issue deprive (or threaten to deprive) an individual of his/her interests in “life”, “liberty”, or “security of the person” (as those concepts have been understood in SCC jurisprudence)?

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(2) If so, i.e. if “life”, “liberty”, or “security of the person” is at stake in the decision, is the deprivation in accordance with the principles of fundamental justice [PFJ]?

(a) in a procedural sense (are the procedures by which the deprivation can occur in accordance with the procedures required by PFJ?) and

(b) in a substantive sense (is the deprivation itself – the possibility that it could occur – consistent with PFJ?)

(3) If life, liberty or security of the person is at stake in the decision and the deprivation is not in accordance with PFJ (i.e, if s.7 has been breached) is the denial of PFJ nevertheless a “reasonable limit, prescribed by law, that is demonstrably justified in a free and democratic society” so that it is “saved” under s.1 of the Charter?

Note: cases where a denial of PFJ could be upheld under s.1 of the Charter are likely to be rare but the s.1 analysis does apply]

Meaning of “Liberty” freedom from physical restraint (imprisonment, incarceration, detention)

e.g. Charkaouri – detention by the state triggers s.7

“liberty” also protects some narrow realm of “personal autonomy” – freedom to make decisions that are of fundamental importance to the individual (Blencoe para 49)

medical treatment for children (Re B.) where to reside (Godbout)

Meaning of “Security of the Person” protects both the physical and the psychological integrity of the individual (bodily and psychological integrity) per N.B. Minister of Health

freedom from state imposed threats of physical punishment or suffering (as well as from such punishment or suffering itself) per Singh, Sureshright to be free from serious state-imposed psychological harm (Blencoe)

re psychological integrity : per New Brunswick Min of Health: the state action at issue must have a serious and profound effect on psychological integrity when viewed objectively

I.e. must ask: would the state action at issue have a serious and profound effect on a person of reasonable sensitivity?Yhe stress or anxiety imposed by the state action at issue must be greater than ordinary stress or anxiety, but need not reach the level of nervous shock; such a level may be found where the state action causes serious distress, stigma and represents a gross intrusion on a private and intimate sphere

per Blencoe: the psychological harm alleged to trigger the s.7 security of the person guarantee must:

be caused by the actions of the state [a sufficient causal connection is required] and must be very serious in kind and degree

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There is no protection under “security of the person” against state-imposed stigma per se or state interference with dignity per se [these are not “free-standing” rights]

Principles of Fundamental Justice (PFJ)

Singh: PFJ includes common law PFPerson must have opportunity to:

adequately state their case and know the case they must meet;

PFJ will not always require an oral hearing but oral hearing will be required if credibility is at stake

NB Min of Health: PFJ = “fair hearing” – opportunity to present one’s case effectively

May require legal counsel if hearing could not be fair without counselTo determine if counsel rights are needed, consider three factors:

seriousness of what’s at stake, complexity of the matter and capacity of individual to represent himself/herself

Suresh: to determine what PFJ requires in any given case when s.7 rights are at issue, use the Baker five factors to “inform the analysis”;

PFJ is not identical to common law PF but the same principles underlie both

Charkaoui: procedures required to meet the demands of PFJ depend on the context; Question is whether the process is fundamentally unfair or flawed; National security context can be taken into account in deciding whether a process is fundamentally unfair or flawed

For example, that context may mean that the “usual” form of procedures may have to be modified or replaced by adequate substitutes But if the PFJ are not respected, any state justification of using procedures that do not meet the requirements of PFJ must be dealt with under the s.1 analysis and not under s.7

Security concerns cannot be used to excuse procedures that do not conform to fundamental justice at the s.7 stage of analysis

Charter Section 1 re Justification of Breaches of PFJWill be very difficult to justify (New Brunswick Minister of Health)Admin convenience will not be enough (Singh)Oakes test applies

SPECIFIC CONTENT ISSUESPrehearing issues:

notice (notice that a decision will be made and what is at stake) pre-hearing disclosure/discovery of the evidence that will be relied ondelay in proceeding (we have already looked at this in Blencoe)

Hearing issues:When will an oral hearing be required as opposed to some lesser kind of hearing (e.g. a “paper hearing”- opportunity only to make written submissions) – see Khan

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Will the proceedings be in public or in camera?Issues of confidentiality

Will representation by counsel allowed? – see New Brunswick Minister of Health and Community ServicesDisclosure to the parties of all the information that the decision maker will rely on in making its decision (right to a hearing “on the record”) – see KaneEvidence (admissibility, confidentiality, privilege claims, official notice) Will there be a right to cross-examination?

Post-hearing: Is there a right to have reasons for the decision? (review Baker on this point)

PRE-HEARING ISSUESNOTICE Without notice, none of the other procedural rights can be exercised.

Where a person is “over the PF threshold” and has some kind of right to be heard in the d/making process, he/she needs to have adequate and reasonable notice that a decision is going to be made in order to be able to exercise effectively the right to be heard.

The kind of notice required will depend on the overall context and where the decision falls on the procedural fairness spectrum

E.g. if “high end” PF is required, more elaborate notice will be needed.

Generally speaking, the person who has a right to be heard needs to know at least:

What the proceedings are about and their possible consequences (e.g. penalties, sanctions – what’s at stake?) When and where he/she will have a chance to “be heard”.

And, in some cases, depending on the context and in at least a preliminary way, the person also needs to know some aspects of “the case against” him/her so that he/she can adequately prepare to respond to that case and to make his/her own case.

4 issues with respect to “notice” are typically identified: (i) form(ii) manner of service(iii) time (how long in advance do you get the notice?)(iv) content

Keep in mind that in some cases, the relevant statute or regulations will provide for how and when notice is to occur and what kind of information must be provided.

(i) Form: written, electronic, or oral? Written notice is more common, safest, and probably required where important interests at issue; Electronic or oral may suffice in some cases, if there is ACTUAL notice, and the person entitled to be heard is not prejudiced, the court is not likely to grant judicial review merely b/c of a defect in form.

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(ii) Service: Personal service (handed to the party) is best if serious individual interests are at stake.Notice by mail will often be O.K. (and perhaps by fax or email) but the agency giving notice must be wary of whether or not the notice is actually received in time or at all. Public notice may suffice in some cases where many people will be affected in more or less similar ways.

For example, methods such as newspapers ads are often used (e.g. CRTC hearings, environmental impact hearings).However, in using general notices, where that is appropriate, care must be taken to ensure that:

the method used is reasonably likely to come to the attention of those who will be affected and that sufficient information is provided in the notice so that such persons have a fairly clear understanding of “what’s at stake” so that they will be able to decide if they wish to participate in the d/making process.

(iii) Time:General rule: notice must be given long enough before the hearing to give the party time both to decide whether to participate, and then to prepare effectively to participate. The length of time required will vary depending on the nature of the interests and issues how complicated they are and the seriousness of what’s at stake.

More complex, more serious matters more time needed to prepare as a general rule

Note: a common remedy for insufficient notice time, is to adjourn the proceedings and give the party further time to prepare.

(iv) Content:In some respects, this is the more difficult question because the content required is so variable, depending on all the circumstances. General rule: notice must give enough information to enable a party to prepare to respond effectively.

Hence, the amount of information required will vary depending on: context where the decision falls on the PF spectrumcomplexity of the issues and the nature of the proceeding that will be held

It is clear that the notice must give enough information so that the person knows “what’s at stake” - what kind of “jeopardy” he or she faces as a result of the decision and why.

However, the courts will also often take a common sense approach in this respect, taking into account what a reasonable person in the position of the party be expected to know and understand from the information he/she was given in the notice.

Consequences of insufficient notice: The agency itself can usually correct defects in notice simply by giving the party more time to prepare and more information before proceeding. Ultimately, however, if defects are not corrected, a court can review what was done and ask if the person got enough notice to enable him or her to participate effectively in the process, given all relevant factors.

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If the notice is found to be insufficient, it can be set aside and a re-hearing can be ordered.

PRE-HEARING “DISCOVERY”Pre-hearing discovery issue differs from “notice” in that it would typically arise after the “initial” notice has been given but before the actual hearing of the matter.

Typically refers to processes similar to the discovery processes following in the civil courts where the Rules of Court provide for elaborate and extensive pre-trial discovery processes by which each party can find out about the other party’s case. The question in administrative law is to what extent, if any, should similar kinds of rights apply to administrative decision-making processes? In considering this, it helps to think about the advantages and disadvantages of discovery processes:

Advantages of pre-hearing discovery

Eliminates trial by surprise/ambush: trial by surprise/ambush is not fair [it is not a good way to get at the truth – justice is better served by avoiding surprise at the hearing]Enables the parties to prepare more effectively for the hearing and this narrows the issues by indicating what is/what is not at issue –this renders the hearing more efficient and expeditious b/c parties can focus on the issues in disputeDiscovery may promote settlements before the hearingNot having discovery impedes the ability of a person to make full answer and defence to the case against him or her

Some disadvantages/problems regarding pre-hearing discovery:May unduly delay and complicate administrative proceedings that are supposed to be speedy and expeditiousApplicability of the various rationales in favour of discovery varies depending on the kind of administrative decision/making at issue and the overall context; In many cases, the administrative decision-maker may not have jurisdiction to make discovery orders vis à vis information that is not in its possession; whether or not it does depends on the scope of its statutory powers, express and implied and it appears that courts will not easily imply the existence of such jurisdiction.

Pre-hearing discovery in a more formal sense will be most likely become an issue when:

there will be an identifiable hearing – usually an oral adjudicative hearing of some kind with opposing parties – and the individual whose rights will be affected is claiming the right to know, before the hearing, details about the evidence that will be relied on at the hearing, so that he/she can better prepare to meet “the case against them”. Also, if the agency itself has been involved in “evidence gathering”, the person may also seek to have information about that evidence, regardless of whether or not it will be relied on at the hearing, in order to help the person prepare his/her own case.

Stinchcombe decision in the SCC is a criminal law case which imposed extensive disclosure obligations on the Crown prior to trial, including disclosure of both inculpatory evidence that the Crown intends to rely on at trial as well as any exculpatory evidence that the Crown may have gathered, regardless of whether the Crown intends to rely on it.

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This decision spurred similar claims in administrative law proceedings such as human rights processes in which the state plays an investigative and “prosecutorial” role in some jurisdictions.

However , the SCC ruled in May v. Ferndale (2005) that the Stinchcombe doctrine is not directly applicable in an administrative law (civil) context.

Summary: A person who has hearing rights needs notice and a reasonable level of prior information before the hearing.

If higher end interests are at stake – if the case is at the “whole enchilada” end of the PF spectrum, something akin to pre-trial discovery processes may arguably be required to enable the person to know “the case against” and to help him/her prepare for the administrative process (e.g. professional discipline processes). Many tribunals that hold full adjudicative hearings recognize the value of discovery and have established rule procedures to provide for it. However, not all tribunals have jurisdiction to force parties to participate in pre-hearing discovery processes.

DELAY IN PROCEEDING – see BlencoeHEARING ISSUESOral Hearings: When will an oral hearing (as opposed to some other kind of hearing such as a written process – a “paper hearing”) be necessary in order to accord with the dictates of PF?

There is no presumption in favour of oral hearings as a necessary element of PF (see Nicolson, Baker).

However , in Singh an oral hearing was found to be necessary by all 6 judges [3 using the Charter s.7 and 3 using the Bill of Rights s.2(e)] because of the seriousness of what was at stake and because credibility was at issue.

However, the courts have not said that an oral hearing is required whenever a s. 7 interest is at stake or whenever the B/R s.2(e) is triggered; that is, the “principles of fundamental justice” as referred to in s. 7 of the Charter of in s.2(e) of the CBR – are variable, like PF, and they do not always require an oral hearing.

To decide if an oral hearing is necessary, one would now apply the Baker 5 factor analysis and try to decide where to locate the decision/making on the PF spectrum and also consider any other special reasons that might exist in favour of an oral hearing.

If credibility is at stake in the matter and if what is at stake is serious, an oral hearing (some kind of face to face meeting between the individual and the d/maker) will likely be required - Singh and Khan

Khan v. University of Ottawa (1997) (Ont CA)Significance: where credibility is an issue, an oral hearing is warranted.

The problem will be characterising the issue as a credibility issue. In this case the minority thought credibility was not at issue.

Facts: Khan wrote an exam and received a failing grade. Claims that she submitted 4 exam booklets (1 of 3, 2 of 3, 3 of 3 and “Insert”), but that only three were marked. The final booklet was allegedly completed when she realized that she had 2.5 hours instead of 2 to complete the exam. Asked for grade review claiming that 4th book went missing.

School policy: re-write may be allowed where there was a significant error or injustice. She claims there was a significant error and wrote to admin of the law school.

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She was not given notice when examination committee reviewed her matter or the chance to tell her story orally; she was allowed a written submission. She applies for judicial review because of denial of PF.

Khan seek judicial review of the process at the faculty levelDivisional court dismisses the caseOCA decides the case in Khan’s favour

Claims:Claims that she should have had an opportunity to give an oral hearing, saying that her credibility was at stake in the matter.University claimed that there was no need for a oral hearing because Khan was not being charged with anything, no adversarial nature

Majority (OCA): Khan’s credibility in these circumstances was at stake, so she should have had an oral hearing

What was at issues was serious – having to repeat a semester, delay from completing a degree

If they decide against her, essentially holding that she was lyingOnly direct evidence was Khan’s word – if the committee had believed her, she would have got relief

Minority: Credibility was not a stakeThere was nothing to support that there was actually another booklet, she was “making a mountain out of a molehill”, may lead to “mischief”.

Remedy: Exam committee had to rehear the matter giving her an oral hearing.

PUBLIC (OPEN) HEARINGS VS IN CAMERA HEARINGS

General rule: if there is going to be an oral hearing, it will probably be open to the public unless

there is a good reason for the proceedings to be in camera orstatute says that the proceedings are to be in private

Countervailing factors to publicity would include:personal security interest of a party may be threatened privacy interests of individuals re intimate mattersnational security interests could be jeopardizedprotection of police informantsprotecting commercially sensitive info [e.g. from business competitors]

If there are special concerns about confidentiality there are some “half-way houses” between full publicity and in camera proceedings such as:

publication banstaking only some testimony in private

Legal Professions Act in B.C. provides that disciplinary and other hearings are to be open to the public but that the hearing panel has power to exclude the public as it considers appropriate and it also has powers to impose a publication ban.

Note Administrative Tribunals Act

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Section 41: oral hearings must be open to the public BUT Section 42: tribunal may direct all or part of the evidence to be heard or received in camera.

These sections only apply to a particular tribunal, however, if they have been specifically declared to apply by the enabling statute of the tribunal.

Tribunals nowadays also have to live with the possibility of constitutional challenges being mounted by the press under s. 2(b) of the Charter when they hold proceedings in camera or try to impose a publication ban.

RIGHT TO COUNSEL In most hearings, a right to be represented by counsel or by an agent is assumed and sometimes the statute itself will require it expressly.

Basic question: when are lawyers necessary in order to give a person an adequate opportunity to be heard and to make his/her case? To answer this, consider first the advantages/disadvantages of legal representation:

Some Advantages of CounselLawyers are spokespersons and are especially important where the proceedings are complex: they help the client make his/her way through the processLegal expertise helps delineate the issues and present facts/arguments in an orderly way and know what facts and arguments are needed and likely to succeed Lawyers know how to conduct examinations and cross-examinations of witnessesLawyers can safeguard the interests of the client in the proceedingsLawyers tend to equalize the process

Some Possible Disadvantages of Counsel?Can add to delay, formality and expense – make things slower, more formal and costlierMay unduly “legalize” processes that don’t need to be legalizedMake the process more adversarial

When are Lawyers Necessary? Recall

N.B. Minister of Health and Community Services: General rule : the right to have counsel will arise from PF where you can say

that such a right is necessary to give a person a reasonable opportunity to be heard in all the circumstances.

Per N.B. Minister of Health we must consider the following factors:1) the seriousness of the issues and the impact of the decision: what’s at stake2) the complexity in terms of the process and the law3) the capacity of the person affected by the proceedings to understand the process and

to participate without the assistance of counsel

A possible “off-setting factor” pointing against counsel rights would be:Need for speed, informality, economy in d/making and Whether involvement of lawyers will significantly impair those goals could be offsetting factors.

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In NB Minister of Health the outcome of consideration of the 3 factors (seriousness, complexity, and capacity) led to the conclusion that the hearing could not have been fair without counsel and what was at stake was so significant (security of the person as protected by s.7 of the Charter) that in that case state-funded counsel had to be provided if the individual was indigent and could not afford to engage counsel on his/her own.

DISLOSURE Issue: disclosure of all the information on which the d/maker will actually decide the matter at hand [i.e. disclosure of all information received at the hearing stage as opposed to pre-hearing discovery].

General fairness principle: when an oral adjudicative hearing is conducted is that a party is entitled to know all of the evidence and representations that have been made to the decision maker [i.e. by other parties or witnesses or by staff etc.] and he/she is equally entitled to have an adequate opportunity to respond to it.

This means that the d/maker should either not receive evidence or submissions without the parties being present or, at the very least, if it does, receive such information in the absence of the parties it should DISCLOSE that information to the parties and give them an opportunity to respond. This is also sometimes referred to as the right to have a decision made “on the record”

That is, a decision that is made on the basis of the information/evidence that was given to the d/maker in the presence of, or with the knowledge of, the person who has a right to be heard, and not on the basis of information, evidence or representations that the person doesn’t know about and hasn’t had a chance to respond to. See Kane.

Kane v. Board of Governors of UBC (1980) (S.C.C.)Facts: Prof at UBC was suspended by President for improper use of computer facilities. He appealed to Board which held a hearing. President member of Board, and although the President did not vote on the matter, after the hearing the Board asked the President some more questions about the case. Board upheld the suspension.

Issues:Reasonable apprehension of bias due to participation of the President on the Board (not discussed by S.C.C.) – sitting on appeal of his own decision (though didn’t vote)

No reasonable apprehension of bias found at lower courtsBoard failed to disclose to Kane all the info it would base it’s decision on

Decision: Yes, was a breach of procedural fairness – did have right to full disclosure

Although relatively informal hearing OK for temporary suspension, could have adverse affect on Kane’s career, and wrongdoing alleged so some PFBoard should have:

Reconvened hearing so that additional info could be presented in front of KaneOr when Board gathered additional info after hearing, at least inform Kane and let him respond to it

Doesn’t matter if new evidence was actually prejudicial or not

Dissent:

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Should give the university a large measure of discretion with respect to hearing these casesNo need to adopt a full trial type decisionHowever, what is at stake is serious – findings of wrongdoing always up the ante

Loss of employment, suspension damaging to reputationIf you don’t know the case against you, can’t have proper opportunity to respond

Comment: Kane sets a general principle but it should be noted that this principles applies primarily at the higher end of the PF spectrum, especially where individual interests are at stake, wrongdoing is alleged, and the process is adversarial and court-like.

When the d/making is located towards the lower end of the PF spectrum e.g. where the decision is more “legislative and general” and the process is more of a policy inquiry rather than adversarial (e.g. environmental impact assessment, CRTC hearings) the disclosure principle will carry less weight.

Exceptions to full disclosure:Even in the cases where higher levels of PF are required, there may sometimes be compelling reasons to depart from the “full disclosure” rule:

Confidentiality concerns may sometimes provide strong arguments against disclosure

E.g. national security, protection of others where there could be a possibility of reprisals such as police informants, privacy considerationsRe Abel: security issues regarding the institution and the interests of the health of the patient might legitimately limit the extent to which Abel would be entitled to get a copy of the staff report about him that the d./maker would be taking into account in deciding if it would recommend his release Suresh and Charkaoui: national security interests require special procedures

EVIDENCE - ADMISSIBILITY OF EVIDENCE General rule: administrative agencies are not bound by judicial rules of evidence unless the statute says so and often they state the contrary. Thus, administrative tribunals can usually act on any "logically probative" material.

However, in practice many tribunals are influenced by the ordinary rules of evidence, particularly if they are making decisions at the “high end” of the PF spectrum where individuals are charged with “wrongdoing” of some kind. In such hearings, the ordinary rules regarding evidentiary privilege can also be invoked.

Pritchard v. Ontario (Human Rights Commission) [2004] (SCC): Held that a complainant could not demand disclosure of a legal opinion prepared by the Commission’s in-house counsel, even though that opinion was relied on by the Commission in deciding to dismiss the complainants complaint against her former employer. The Court held unanimously that the opinion was privileged and need not be released. The rules of solicitor-client privilege extended to legal advice provided to the Commission by its in-house counsel. The Court noted, however, that the privilege would not extend to non-legal advice, even if such advice was provided by counsel.

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OFFICIAL NOTICEGeneral rule: d/makers, or, at least those at the higher end of the PF spectrum, must disclose all the information on which it will base its decision and give the person whose interests are at stake an opportunity to address that information.

Issue: whether/when/to what extent an administrative d/maker" can go beyond the record" to take “official notice” of certain material facts and, if it can, what are its obligations to the parties vis a vis disclosure of such facts?

The problem here is that many admin d/makers are appointed for their expertise and sometimes for their technical knowledge and they are expected to use this expertise or knowledge in their decision/making so there should be some room for them to rely on this expertise without having to “disclose” it to the parties. The policy of the law in this area must therefore attempt to reconcile the needs of procedural fairness with the need for full and free use of the expertise that is located within the agency.

“Official notice” is the administrative law counterpart of the concept of “judicial notice”. It is generally recognized that judges can take “judicial notice” of 2 kinds of facts:

(1) facts that are so notorious as to be not in dispute and(2) facts capable of immediate and accurate demonstration by resort to readily available sources of indisputable accuracy

Under the concept of “official notice” admin d/makers can do at least that much too – they can take note of the same kinds of things as judges can under “judicial notice”. But most administrative d/makers can do more, particularly if they have expertise that they are supposed to bring to bear to the d/making.

There is also more scope of taking “official notice” where the d/maker at issue is located more towards the lower end of the PF spectrum where the disclosure principle itself carries somewhat less weight

Additionally, another general principle is that that there is less scope to take notice of “adjudicative” facts as opposed to “legislative” facts:

when a court or tribunal finds facts regarding the immediate parties (e.g. about their conduct – who? what? where? why? how?) this is an adjudicative function and the facts relevant to that function are adjudicative facts [facts to which the law or policy is applied]on other hand, when court or agency develops law or policy it is acting legislatively and the facts that help inform the tribunal's legislative judgment are "legislative facts" [facts that help the tribunal exercise its judgment or discretion] - these facts are more general than adjudicative facts and there is more scope to take official notice of this category of facts

A good practice in many cases where there is doubt on this issue, the d/maker should disclose what it intends to take “official notice” of and let the party have an opportunity to address the matter.

CROSS-EXAMINATION Here too, it is not possible to be categorical and say there is an absolute right to cross-examination in administrative decision-making whenever there is an oral hearing going on. Like everything else, it depends on the context as a whole and what PF requires in a given case to give a party an adequate opportunity to be heard.

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When the case is at the lower end of the PF spectrum, where more minimal fairness obligations arise, the court is less likely to require cross-exam as part of PF

e.g. recall the Irvine decision regarding the investigatory processes that existed under the Combines Investigation Act:

Conversely, if a “high end” evidentiary-based process is going on, and wrongdoing is alleged against individuals as in human rights process or professional discipline, cross examination rights will likely be required as part of the process of “responding to the case against”, unless there is some overriding claim for privilege.

Particularly where the credibility of witnesses is at stake, cross-examination rights are more likely to be required unless there are sufficiently off-setting interests that would militate against allowing such rights (e.g. protection of police informants). The extent to which cross-exam rights are NECESSARY to providing a reasonable opportunity to make out a case or to challenge the case against a person can also relate to whether or not there are other viable and adequate alternatives to allowing c-e rights in all the circumstances of the case. If there are such alternatives available, then the case to demand cross-examination is weakened.

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Administrative Tribunals Act (2004)Key Aspects of the Administrative Tribunals Act, S.B.C. 2004, c.45 (the ATA) CIF June 30, 2004

The ATA provides a number of provisions that set out powers relevant to administrative tribunals.

These provisions are generally enabling – creating authority for the tribunal to do certain things, as opposed to requiring them to do things in a particular way.

It is important to know that specific provisions of the ATA apply to a particular tribunal only if the enabling statute that establishes the tribunal so provides – and only to the extent that the enabling legislation so provides.

That is, the ATA can apply “piecemeal” or not at all.Accordingly, to determine whether a particular provision of the ATA applies to a particular tribunal, you need to consult that tribunal’s enabling legislation.

For example, s. 103 of the Employment Standards Act, R.S.B.C. 1996, c. 113 provides:

103  Sections 1 to 21, 28 to 30, 32, 34 (3) and (4), 35 to 40, 45, 46, 48, 49, 50 (2) to (4), 51 to 53, 55 to 58, 60 (a) and (b) and 61 of the Administrative Tribunals Act apply to the tribunal.

This “opting in” aspect of the ATA is underscored by the definition of “tribunal” in section 1 of the ATA: “tribunal” means a tribunal to which some or all of the provisions of this Act are made applicable under the tribunal’s enabling Act”.

There are approximately 25 administrative tribunals in B.C. and some or all of the provisions of the ATA have been made applicable to 22 of them at this point.

The Administrative Justice Office publishes a chart which shows which provisions apply to which tribunals. See: http://www.gov.bc.ca/ajo/popt/legislation.htm#table

There are essentially 2 main “parts” of aspects to the ATA:(1) Provisions related to the appointment of tribunal Chairs and Members (ss. 2 – 10)(2) Provisions related to tribunal powers -- “a menu of powers” (ss. 11-61)

PROVISIONS RE APPOINTMENTSThe most noteworthy provisions in regard to appointments are:

ss. 2 and 3 provide for a merit-based process for appointments of Chairs and tribunal members and deals with some of the Chair’s powerss. 8 provides: “The appointing authority may terminate the appointment of the chair, a vice chair or a member for cause.”s. 10 provides that tribunal members must have set remuneration set in accordance with general directives of Treasury Board and must be reimbursed for reasonable travelling and out of pocket expenses incurred in carrying out their duties.

As we shall see, ss. 8 and 10 are relevant to establishing the independence of the tribunal.

Must have financial stability and ability to dismiss members for cause in order to be independent

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ATA PROVISIONS RE POWERS The ATA’s “menu of powers” includes:

s. 11 gives tribunals to which it applies the power to make rules re practice and procedures regarding a wide variety of matters such as

giving notice to partiespre-hearing conferencesdispute resolutiondisclosure and discoveryhearing procedureseffect of non-compliance with rules

s. 12 and 13 give power to make non-binding practice directives, including directives that establish time periods for procedural steps and that set out the usual time taken to render a decision

ss. 14-18 provides various powers to make orders to enforce the tribunal’s rules and to control its proceedings; to make interim orders, to authorize consent orders, and to give effect to a settlement through making an order; it is also provided that the tribunal has the power to refuse to issue a consent order in some circumstances

ss. 19-21 contain provisions regarding the service or notice or documents, including a power for the tribunal to serve documents by “personal service, mail, electronically, or any other method” and includes specific authorization to effect service by public advertising or other means to give “mass” notice when parties are numerous or it is otherwise impracticable to serve by other means

ss. 22-25 are provisions regarding Notices of Appeal – they concern how to file a notice of appeal to an appellate tribunal and what the content of the notice must be; s. 24 establishes a 30 day time limit for an appeal of this kind, which tribunal is empowered to extend if special circumstances exist

ss. 26 provides that the Chair has the power to set hearing panels and to designate a chair for a panel; these provisions also specify that a panel has the same powers as the tribunal does

s.27 enables the Tribunal to engage staff and contractors

s. 28-29 authorizes the Chair to appoint a staff member, tribunal member or other person to conduct a dispute resolution process and provides that such persons cannot then hear the merits of the case if it proceeds without the consent of the parties; these provisions also provide for non-disclosure of what goes on in a DR process

s. 31 sets out the circumstances in which a tribunal can summarily dismiss a matter (these include: where the matter is: beyond the jurisdiction of the tribunal; out of time; frivolous, vexatious and trivial; made in bad faith or for an improper purpose or motive; has appropriately been dealt with elsewhere; has no reasonable prospect of success; or has not been diligently pursued by a party)

s. 32 provides that a party to an application may be represented by a counsel or agent and may make submissions as to the facts, law and jurisdiction

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s. 33 allows a tribunal to permit interveners if satisfied that (a) they can make a valuable contribution or bring a valuable perspective and (b) that the potential benefits of the intervention outweigh any possible prejudice to the parties; the tribunal can also specify (limit) the role of interveners

s. 34 provides for the summoning of witnesses and the production of documents or things

s. 35 allows the tribunal to transcribe or tape-record its proceedings

s. 36 authorizes tribunal to hold written, electronic or oral hearings or any combination thereof

s. 37 allows for joinder of applications that raise the same or similar issues

s. 38 allows a party in an oral or electronic hearing to present evidence, make submissions and call, examine, and cross-examine witnesses as reasonably required

s. 39 deals with adjournments

s. 40 deals with the admissibility of information (evidence) and provides that a tribunal can admit information (evidence) even if it would not be admissible in a court of law but with the exception that nothing that would be privileged (and inadmissible on that basis) under the rules of evidence, is admissible before a tribunal

ss.41 and 42 provide that an oral hearing must be open to the public but preserves the ability of a tribunal to hear information in camera if this is desirable

Substantive ProvisionsAbility to hear constitutional matters

s. 43-46 deal with the authority of a tribunal to hear and consider constitutional matters; there are 3 alternatives that could potentially be adopted in this regard

S. 43 - tribunal has jurisdiction to hear all questions of fact, law or discretion that arise in any matter before it, including constitutional questions (i.e. both division of powers and Charter issues);

At this point, only the Labour Relations Board and the Securities Commission have this power

S. 45 tribunal has jurisdiction only over constitutional division of powers matters but not over Charter issues;

At this point, the Employment Standards Tribunal, the Human Rights Tribunal, and the Farm Industry Review Board have this jurisdiction

S. 44 tribunal has tribunal has NO jurisdiction to hear constitutional issues; This is the most common situation at present

Note that in cases where the tribunal does have full or partial constitutional jurisdiction, the tribunal may state a case to the court on the constitutional question and MUST do so on the request of the Attorney General; per s. 46, notice of any constitutional question raised must be given to the AG

Human rights codes

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Ss.46.1, 46.2, and 46.3 deal with the authority of a tribunal to apply the Human Rights Code to matters coming before them, with jurisdiction varying depending on which provision is made applicable to a given tribunal;

Under s.46.1 tribunals have jurisdiction to apply the HRC, including jurisdiction to determine if there is a conflict between the HRC and another statute; Under s. 46.3 tribunals have no jurisdiction at all to apply the HRC; and under s. 46.2, tribunals can apply the HRC to matters arising before them but do not have jurisdiction to determine if there is a conflict between the HRC and another statute.

Note: HRC claims to be paramount and override statutes that are inconsistent with the HRC

s. 47 provides, subject to the regulations, powers to make orders for costs and expenses – a tribunal can order

party to pay costs of another party or an intervener intervener to pay costs of a party or other intervener party to pay costs and expenses of the tribunal if the conduct of the party has been improper, vexatious, frivolous or abusive

ss. 48 and 49 deal with powers to maintain order at hearings and in particular allow a tribunal to apply to a court if a person summoned as a witness has breached an order to attend a hearing, take an oath, answer questions or produce records and the court could then make a contempt order

s. 51 -52 provides that the tribunal’s final decisions must be in writing and must include reasons; a copy of the decision and reasons must be given to all parties and interveners unless it is impracticable to do so because of numbers and in that case the tribunal may give reasonable notice of its decision by other means such as public advertisement

s. 53 allows for corrections of clerical, mathematical or other accidental or inadvertent errors in a final decision to be made within 30 days of the decision being made

s. 54 provides that an order of the tribunal can be filed in court and it then is treated as an order of the court for enforcement purposes

s. 55 and 56 provides that tribunal members cannot be compelled to testify regarding information obtained in the discharge of their duties except in a criminal proceeding; tribunal decision-makers also have immunity from legal proceedings for acts or omissions done in good faith in the performance of their duties

s. 57 provides that there is a 60 day time limit to commence an application for judicial review of a tribunal’s decision although the court has power to extend this time limit in certain circumstances

s. 58 – 59 deal with the standard of review that a court is to apply to the decisions of a tribunal in particular circumstances – we will deal with these provisions in detail later in the course

s. 60 provides that the Lieutenant Governor in Council can made regulations for various matters related to a tribunal this includes regulations that prescribe: rules of practice and procedure; tariffs of fees that can be charged; the circumstances in

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which costs orders can be made; and tariffs of costs payable when costs orders are made

s. 61 excludes the application of certain provisions of freedom of information legislation to tribunal members in relation to various kinds of records made in the decision-making process

Application of ATA to other entitiesCertain bodies which are not tribunals may nonetheless be applicable under the ATA because they serve some form of administrative decision making function

BiasBACKGROUND: Rule against bias is part of Natural Justice/Procedural Fairness

Natural Justice has two limbs:

1. audi alteram partem: hear the other side – procedural entitlements associated with the conduct of a fair hearing process such as notice and a reasonable opportunity to be heard – to make one’s case and to address/oppose the case against one (“participatory rights”)

2. nemo judex in causa propria sua debet esse – no one ought to be a judge in his or her own “cause” : this is the RULE AGAINST BIAS

Note that Rule Against Bias can be framed positively as a duty of impartiality on the part of a decision-maker

Reflects the idea that justice requires that decisions be made by an impartial, unbiased d/maker: neutrality/disinterestedness

Historically, RAB was seen as part of NJ and, like audi alteram partem, it originally applied only to judicial or quasi-judicial decision-makingNow RAB clearly extends also to other administrative decisions (Baker, Imperial Oil) Hence, as in the case of procedural obligations generally, NO LONGER ANY NEED to classify the admin decision as either judicial or quasi-judicial in order for the RAB to apply

Present approach characterizes the RAB as part of the larger obligations associated with PF:

In Baker, Justice L’Heureux Dube stated:“Procedural fairness requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker.”

In Newfoundland Telephone, Justice Cory stated:“The duty to act fairly includes the duty to provide procedural fairness to the parties. That cannot exist if an adjudicator is biased.”

In Imperial Oil, Justice LeBel stated: “The duty of impartiality, which originated with the judiciary, has now become part of the principles of administrative justice.”

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HOWEVER, as with other procedural fairness obligations, the RAB varies in its application, depending on the context of the decision-making at issue in any given case

The nature and impact of the decision, the nature of the d/maker, the statutory context etc.) (See, e.g. Imperial Oil, per Justice LeBel at para 31)

In some circumstances, different “tests” have been developed by the courts to determine what constitutes bias, depending on the kind of d/making at issue

E.g. an expressly “relaxed” standard applies to municipal councillors when “prejudgment” is alleged as the basis for a bias objection)

UNDERLYING PURPOSES OF THE RULE AGAINST BIAS

(i) to foster public confidence in the process and the substance of administrative justice: to foster legitimacy and acceptability of decisions

(ii)to promote substantive fairness (better decisions):Decisions made by unbiased d/makers are presumed to be more likely to be substantively fair and correct than would be the case if the decision was made by a biased d/maker

(iii) to support participatory procedural rights the RAB is directly linked to the right to be heard and to have a reasonable opportunity to participate in the d/making process (i.e. can you REALLY say you have been heard, and have had a reasonable opportunity to put your case, if you have been heard by a biased d/maker?)

(iv) the impartiality principle is also be linked to the rule of law and the pursuit of equality: rule of law: Canadians want to be governed by known laws, duly enacted by our legislators, and applied even-handedly so that like cases are treated in a similar manner, without favouritism and regardless of social, economic or political status, and regardless of personal connections or relationshipsthe pursuit of equality also demands non-discrimination on grounds such as race, gender, sexual orientation, ethnicity, or age, etc so any bias on these grounds runs afoul of equality goals

WHAT IS THE USUAL PROCESS FOR DEALING WITH IT?Bias, where it is found to exist, disqualifies a d/maker from making a valid decision and causes a loss of jurisdiction. Hence, possible remedies for bias are:

(i) where a complaint arises before a decision is made, it can sometimes be the basis for an order of PROHIBITION (although courts may refuse to entertain the matter until after the tribunal has made a final decision on the merits of the case on the basis that the application is premature)

(ii) a complaint of bias that arises after a decision is made can be remedied by quashing the decision or setting it aside as invalid (an order in the nature of certiorari or a declaration of invalidity)

PROCESS FOR DEALING WITH BIAS ISSUES82

When a bias issue arises before or during a hearing process, the party affected should raise the matter with the d/maker and ask the d/maker to disqualify himself or herself (recuse)

D/maker hears the parties on the matter and makes a ruling

If d/maker does not disqualify self, party alleging bias: Might try to seek JR immediately

BUT could then be met with the problem of prematurity and the court might refuse to rule on the bias issue until the d/maker has made a final decision on the merits of the case as a whole)

orMight decide (b/c of the possibility of prematurity being found) to continue in the proceeding, while continuing to maintain the bias objection,

After the final decision, if the party loses – can then seek JR and raise bias and any other grounds for JR at that point

ABSENCE OF ACTUAL BIAS IS NOT ENOUGH; THERE MUST ALSO BE NO APPEARANCE OF BIASIn order to attain the purposes of the Rule Against Bias, it operates through the well-understood principle that “justice must not only be done but must also be seen to be done” (R. v. Sussex Justices, ex parte McCarthy [1924] (England)

Reference here to “be seen to be done” underscores the public confidence rationale: Perceptions of the public are very important and public confidence in the decision-making will not be achieved unless the appearance of bias is avoided (as well as actual bias itself)

Thus the standard test for bias is the REASONABLE APPREHENSION OF BIAS test (RAOB)

DEFINITIONS OF BIAS, FLEXIBLE STANDARDS, DIFFERENT STANDARDS OR TESTS: Twp preliminary points:1) Bias does not encompass any and all pre-dispositions or attitudes that a

d/maker might have2) There is no need to prove ACTUAL bias in the mind of the d/maker

(i) Bias does not encompass any and all pre-dispositions or attitudes that a d/maker might have

All d/makers are human and bring with them the “intellectual baggage” of their own values, beliefs systems, experience and knowledge – the RAB must take account of this in a realistic way and cannot be understood in an absolute sense (R. v. S. (R.D.))

What constitutes a disqualifying bias will differ in different legal settings or contexts (see Imperial Oil)

Need for context specificity is especially obvious in administrative decision-making context, given:

The widely different nature of administrative d/makers and the wide variations in the kinds of d/making that takes place

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The fact that some administrative d/makers are appointed precisely because of their capacity to represent certain interest groups or because they possess particular expertise or familiarity with the subject-matter on which they will be making decisions; this must be recognized and accommodated in the law regarding bias

R. v. S. (R.D.) (1997) (SCC) Significance: good overview of the principles of bias

Raises question of how much judges and adjudicators are able to exercise judgement based on their own knowledge and experiences

Facts: While delivering her oral reasons, the Judge (who was herself a black woman) remarked in response to a rhetorical question by the Crown, that police officers had been known to mislead the court in the past, that they had been known to overreact particularly with non-white groups, and that that would indicate a questionable state of mind. She also stated that her comments were not tied to the police officer testifying before the court. The Crown challenged these comments as raising a reasonable apprehension of bias.

Issue: whether the Judge’s comments in her reasons gave rise to a reasonable apprehension of bias.

SCC: Found no reasonable apprehension of bias3 thought troubling gave reasonable apprehension of bias2 thought no ROAB but that comments were troubling and close to the line4 thought was merely an example of the just relying on her own experiences and knowledge – contextualized judging

Definition of impartiality: Decision in which the adjudicator remains disinterested in the outcome, open to persuasion by the evidenceBias is a state of mind that is predisposed to a particular result – prevent them from coming to an impartial decision

Impossibility of absolute neutrality:“The requirement for neutrality does not require judges to discount the very life experiences that may so well qualify them to preside over disputes. It has been observed that:

the duty to be impartial does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education, and every human contact with those with whom we share the planet. Indeed, even if it were possible, a judge free of this heritage of past experience would probably lack the very qualities of humanity required of a judge. Rather, the wisdom required of a judge is to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave.True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.”

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Comment: Judges will obviously have attitudes and predispositions, but also have a duty to recognize them when making judgments

For bias, really looking for something unacceptable with respect to the way the mindset appears to be

Need for context specificity especially obvious when it comes to the administrative realm Need to recognize the wide variation in the kind of decision making that adjudicators are involved in

(ii) There is no need to prove ACTUAL bias in the mind of the d/makerIt would be difficult or impossible to prove what lies in the minds of d/makers when they are making decisionsThere are also concerns about the practicality and propriety of calling upon d/makers to testify about whether or not they are actually biased or not [d/makers enjoy adjudicative privilege in this regard]

Result: there is no need to prove actual bias, rather other “tests” for bias are used which, if met, disqualify the d/maker b/c of the perception of bias, regardless of whether or not there was actual bias (See R. v. S. (R.D.) per Justice Cory at paras 109-110

STANDARD TEST FOR BIAS – REASONABLE APPREHENSION OF BIAS (RAOB)

Standard test for bias is the reasonable apprehension of bias test (RAOB) from the dissenting judgment of Justice de Grandpre in Committee for Justice and Liberty v. National Energy Board (at para 40) and cited in Baker (para 46)

... the apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. ... [the] test is “what would a informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker] whether consciously or unconsciously, would not decide fairly.”

Means that a RAOB will exist where: a reasonable person, well-informed about all the facts concerning the d/maker, would conclude that the d/maker may be influenced (even if unintentionally or subconsciously) to favour or disfavour one side or the other b/c of some kind of interest of prejudice the d/maker has in the outcome

Need NOT show that the apprehended bias actually affected the decision, it is enough if it might reasonably be perceived to have done so!

Justice Cory in R. v. S. (R.D.) SCC 1997 para 111 says the RAOB test has a two-fold objective element:

(1) Person considering the alleged bias must be reasonable; andThis reasonable person also: must be informed of all relevant circumstances; and must not have a “very sensitive or scrupulous conscience”

(2) Apprehension of bias must also be reasonable in the circumstances of the case

the grounds for a RAOB must be “substantial” and 85

allegations of bias should not be made lightly [mere suspicion is not enough] (See R. v. S. (R.D.) at para 112-113)

Flexibility in RAOB Test And Alternate Tests For Bias:(1) Bias is context specific – the standard test (RAOB) can be applied flexibly in admin

law settings (2) In certain cases, alternate tests for bias have been developed for specific

kinds of contexts

(1) STANDARD RAOB TEST APPLIED FLEXIBLY

In administrative decision-making, RAOB test is applied on a kind of spectrum to account for different contexts

There are differing levels of tolerance for pre-existing attitudes, prior involvement, relationships, depending on the nature of the decision, the nature of the decision/maker, and the applicable statutory provisions If the decision-making is more court-like (adjudicative) the RAOB test applies more strictly than it does when the decision-making is discretionary, policy-based, “legislative” (i.e. not court-like) - Imperial Oil

Sliding scale with respect to bias DiscretionaryGeneralHigh policy content

= more flexibility re: what constitutes bias

Highly judicialized (adjudicative)IndividualizedLittle policy (application of legal standard or rule)

= less flexibility re: what constitutes bias (standard closer to the judicial standard)

(2) ALTERNATE TESTS FOR BIAS (other than the standard RAOB)

Alternate tests for bias exist for:Pecuniary Interests (aka “conflicts of interest)“Relaxed” Standard (for certain kinds of bias allegations in certain kinds of contexts)

“Pecuniary interests” test for bias :

Direct pecuniary interest = automatic disqualification - DimesTest for pecuniary interests bias is stricter in theory as it is said that any direct personal pecuniary interest in a matter may be enough to disqualify; Bias is presumed and disqualification is automatic, without regard to the RAOB test if the d/maker has a direct financial interest in the outcome;

Indirect pecuniary interest = ROAB testHowever, if a financial interest is indirect, the RAOB text applies (Pearlman)

Dimes v. Proprietors of Grand Junction Canal (1852) (English H.L.)Facts: Lord Chancellor confirmed orders made by Vice-Chancellor regarding a canal company, and later found out that the Lord Chancellor had shares in that Canal company.

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Decision: “No one should be a judge in their own cause” (even though there was no apprehension that he would allow himself to be actually biased)

Led to direct disqualification from participating in the decision – classic conflict of interest

“Relaxed Test” for bias : A specifically “relaxed test” for bias has been developed in cases of alleged “pre-judgment” where elected decision-makers such as municipal councillors are concerned – Old St. Boniface, Save Richmond

When it is alleged that such d/makers have “pre-judged” a matter, or have an inappropriate level of predisposition towards an issue,

Test: whether they have “kept an open mind and remained amenable to persuasion” – they must not have a closed mind

This relaxed standard also applies in cases of policy-oriented boards in relation to comments that board members might make prior to a hearing, particularly where the board members are expected to be representative of particular interests; However the SCC has held that such board members must abide by the “normal” standard once a hearing has actually commenced (Newfoundland Telephone)

Old St. Boniface Residents Association (1990) (S.C.C.)Decision:

A new relaxed “open mind” test is adopted for pre-judgement or attitudinal bias for elected officials operating in political context (i.e. for policy, legislative, general type decisions, not for more individual, adjudicative decisions like in Homex where higher PF required nor for politicians in the legislature/parliament where no PF required)Only requires there be no closed mind / must remain open to persuasion i.e. party alleging bias must show that there is a prejudgement to the extent that any representations at variance with that view would be futile i.e. that it cannot be dislodged.Note relaxed standard applies only to pre-judgement / attitudinal bias, not to personal bias (i.e. pecuniary interest, relationship interest, etc.)

Identifying Bias Issues/Categorizations of Possible Bias SituationsThere are different ways to categorize basis; there is no universally accepted classification system

Key point is to be able to recognize different kinds of circumstances that might give rise to bias allegations/issues

Different kinds of situations where bias issues might arise include: pecuniary interest/conflict of interestpersonal relationship with parties or counselpersonal animosity arising/evidenced during hearingsubject-matter (attitudinal) bias, predisposition, prejudgment (includes prior involvement)institutional/structural bias

Pecuniary Interest:

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Situations in which decision-maker has a pecuniary (economic) interest in the outcome of the decision

Where he or she stands to benefit or lose from the decision in a material sense that will have an impact on the pocketbook

Personal Relationship: Situations in which the decision-maker has a past or present relationship either with those who are either directly involved in the decision as parties or counsel or with those who have an interest in the outcome in the sense that they may either gain a benefit or suffer a detriment as a result of the decision.

Family, business, professional, associational or friendship relationships can all provide grounds for disqualification if it can reasonably be perceived that, because of the relationship, the decision-maker may be (consciously or unconsciously) inclined to favour or disfavour a particular outcome (See Bennett and Doman)A history of acrimonious relationship also falls within this category.

Personal Animosity Arising or Evidenced During the Proceedings: Situations in which decison-maker's conduct or comments during the proceedings (eg. hostile questioning of witnesses, rude behaviour, disparaging remarks) gives rise to an allegation that he or she holds, or has developed, a particular animosity or a discriminatory attitude towards a party or a counsel

Sometimes referred to as “actual bias” because the bias becomes evidenced in the actual behaviour of the d/maker during the hearing process

Subject-Matter (Attitudinal) Bias, Pre-Disposition or Prejudgment: Situations in which there is a some kind of pre-existing relationship between the decision-maker and the subject-matter of the decision. Includes situations in which:

Decision maker has had some kind of prior involvement with the specific case or issue now before him/her for decision or Decision-maker has previously expressed strong views and opinions on the matters at issue in the proceedings

Institutional or Structural BiasSituations in which a perception of bias may arise because of the way in which the agency or its decision-making processes have been structured or designed.

Bias is institutionalized b/c it is "built in" to the decision-making process, either by the enabling legislation itself or by policies and procedures established by the agency Any of the kinds of bias referred to above could be institutionalized

E.g. pecuniary interests or predispositions could be built into an administrative scheme if some members of a tribunal have a financial or attitudinal interests in the outcome of their decisions (egg marketing boards might have egg farmers on it)

Another example is "overlapping functions", where the agency's procedures have been structured in such a way that decision-makers are routinely involved with a particular matter at various stages of the administrative process prior to the adjudication stage

E.g. same person investigates and adjudicates or investigates, determines that a hearing should be held, and then appoints the d/makers to hear the matter [prior involvement with the subject matter is institutionalized]

Exceptions to Disqualification/Defences to Bias AllegationsThere are 3 defences:

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(1)statutory authority(2)necessity(3)waiver

[And, again, always remember that what constitutes “bias” will be different in different contexts, that is, what is a disqualifying bias in some contexts will not necessarily be a disqualifying bias in other contexts]

(i) Statutory authorization:Where a statute expressly or by necessary implication authorizes a d/maker to decide a matter, despite what might otherwise be seen as a disqualifying bias, the statute governs and statutory authorization is a complete defence (CUPE v. Ontario (Minister of Labour))

To try to overcome this one must resort to a “rights document” such as Charter s. 7 or (if the d/maker was a federal one) the Bill of Rights

I.e. attempt to use the rights document to “trump” the statute and strike down the provision that authorizes the allegedly biased d/maker to decide

(ii) Necessity: If a d/maker who labours under disqualifying bias would be the ONLY POSSIBLE d/maker who is authorized to make the decision in question, this will be accepted and the decision-maker can decide, despite the RAOB; otherwise there would be a failure of justice

E.g. in an old Saskatchewan case, judges forced to decide on the issue of whether income tax can be applied to judges salaries Judges themselves had to decide this since no one else could make the decision

(iii) Waiver : Parties who know about bias can waive it expressly or impliedly:

An implied waiver can occur only if the person alleged to have waived knew about the bias and knew also that they could object to it, but nevertheless elected to proceed without making an objection and thereby lose their right to complain about the biasWaiver is a discretionary ground on which the court can refuse relief to the applicant found to have waived their right to object

However, may raise issues for the broader public interest: although the applicant may waive the right to object, issue may nevertheless be important to the public and give a sense of collusion

Cases in ContextR v. S(RD) – General principles (judicial context)Pearlman – pecuniary interestsBennet v. Doman – relationshipsCommittee for Justice and Liberties – prior involvementWewaykum Indian Band – prior involvement Imperial Oil – need for contextual approachCUPE v. Ontario (Min. of Labour) – statutory authorization defence Baker

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Pecuniary InterestA pecuniary interest that benefits general public or at least a large sector of the community (including the decision maker) will not result in disqualification e.g. decision about where to build a road and the decision maker themselves will perhaps benefit since they have a business in town, although if the road is planned directly from the train station to their shop could be RAOB).Small amount of direct pecuniary interest can be overcome by waiver e.g. decision maker would tell parties he/she has 2 shares in X, parties can then waive, and courts unlikely to then interfere. However, for waiver to be effective:

Must be made with full knowledge about the facts behind a RAOBShould be done explicitly, on the record, although can be implied if a party knows, doesn’t object and proceedsAll parties who could object must waive, so if one party doesn’t they retain the right to object in JR for biasThere is likely a limit as to how egregious a bias can be waived, since waiving significant bias would likely lead to allegations of collusion, and lack of public confidence

Pecuniary interest might also apply to a close relationship, such as close friend, family member, business competitor. Consider how close is the relationship, is it ongoing or over (how long ago), etc.

Pearlman v. Manitoba Law Society disciplinary Committee (1991) (S.C.C.)Significance: Demonstrates pecuniary interest and context

Facts: If a lawyer loses against the Law Society’s disciplinary committee (made up of law society members), it could award the law society’s costs against him/her, thus avoiding passing them on to the membership through an increase in membership fees.

Claim: lawyer claimed that the disciplining committee had a pecuniary bias in seeing the lawyer found guilty because of the possible costs award.

Involved him being judged by a body that would not meet the standard of impartiality All members of the disciplinary committee are also members of the law society. If he is found guilty, then Law Society will not have to pay costs. But if not guilty, then Law Society may have to pay costsThus, if found guilty may have to pay higher membership fees = financial interest in finding him guilty

Pearlman also alleges that s. 7 of the Charter is at issue in order to overcome statutory authorization defence

SCC refuses to hear the s. 7 issue Even assuming that s. 7 is triggered, this process is not contrary to the principles of fundamental justice.

Decision: No reasonable apprehension of biasToo remote and uncertain to amount to a direct pecuniary interest bias, since:

Law society not making profit, only re-couping costs.Any sort of pecuniary interest is too remote.Any actual financial benefit will be miniscule.

Court therefore applied the RAOB test to the indirect pecuniary interest allegations.

Comment: Context – importance of peer-review processes, profession self-governance

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Pg. 2: “Leg has given the benchers right… to enforce… ridiculous to call upon another body to hear and dispose complaints of … no one is better qualified… then who are themselves subject to rules by their governing body.

Whole idea of professional self-regulation is that they discipline themselves = no bias.

Would not be possible to argue that a peer review process is wrong because the person alleged of wrong doing was disbarred, this would reduce the competition!

RelationshipsBennett v. Doman (1993) (B.C.C.A.)Facts:

BC Securities commission strikes panel (of 3 members) to investigate insider trading alleged against Doman and (former B.C. premier and Doman’s business partner) Bennett. Doman was director and majority shareholder of Doman Forest Products.One of the securities commission panelists, Devine, was director of another forest company, and so a competitor of Doman.Doman alleged business competitor bias, and asked that Devine disqualify himself (panel chose not to).On JR, argued that a panel finding against Doman could prevent him from managing the company which would be negative for them competitively, which could in turn benefit the decision maker’s (Devine’s) company (i.e. somewhat indirect/tenuous).

Decision:Devine should be disqualified even though some reasonable persons might apprehend bias here, other’s might not since the possibility of any gain for the decision maker through the improved competitive position of his company was improbable (this case shows about the limit i.e. as far as the RAOB is likely to go).Rather than disqualifying the entire panel (which is usual remedy since one biased panelist might “spoil” the others), but here only disqualified the one decision maker Devine, since although panel had started hearing, were not very far along in proceedings (and perhaps because this was a relatively tenuous case of bias).

Para 37-39“Reasonable person is of course a mythical creature. Those who gave the first answer… suffering from needless scrupulosity”Far as it is rational to be takenIllustration of the ROAB test being used, but very tenuous here

Prior Involvement Decision maker had prior involvement outside the tribunal with the specific

subject matter now before the tribunal e.g. consider a lawyer appointed to a tribunal, but in their past life as a lawyer they had involvement with the issues now before the tribunal.

Whether this is OK will depend on what the prior involvement was, consider:Was it this particular case, or more general subject matterHow long ago (will generally require a purge period)The nature of the tribunal (i.e. more policy or more adjudicative, dissent Committee for Justice and Liberty).

Prior involvement w/ matter within agency

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E.g. high ranking official in agency assigns person to investigate, report comes to Commission, review, decides enough that should have hearing, then same person appoints who will hear matter or even sit themselves overlap often dealt with through contextual analysis or statutory authorization

Committee for Justice and Liberty v. National Energy Board (1978) (S.C.C.)Facts: The National Energy Board conducts hearing re application for approval to construct Mackenzie Valley pipeline. Crow is chair of the tribunal, but he was also closely involved with the matter prior to joining the tribunal, which included a connection with one of the project proponents (he had been president of Crown corporation Canada Development Corp which set up the study group, which in turn set up the Canadian Arctic Gas Pipeline, one of the project proponents).

Interveners: 88 interveners in the caseTribunal asks interveners whether they object to Crowe sitting80 did not object but 8 do National Energy Board refers matter to courts

Issue: is Crowe disqualified from sitting on Board hearings due to prior involvement with the corporation?

Majority decision:Disqualified Crow on RAOB, since he had had a personal, extensive prior involvement in the specific subject matter (and with one of proponents), including having a hand in developing the groundwork for the whole project, albeit 2 years prior to the hearing (but the application was only 5 months after his involvement).Concern was that public would not have confidence in decision making by someone who used to work for certain company.

Here reasonable member of public would think Crowe influenced from previous experience

Para. 24 – lawyers who have been appointed to bench have been known to refrain from sitting on cases involving former clients, even where no involvement in that particular case, until reasonable time has passed

A fortiori a lawyer must not sit in case in which they had played any part Parallel b/w drawing up docs for litigation and planning application to Board which you are now adjudicating

Dissent (has been adopted many times for general RAOB test)Would have allowed Crow to sit, since Board needs people with expertise, and this is not an adjudicative proceeding but rather policy making, so more leniency when considering RAOB.

Different view of nature of Board: policy making board exercising discretion, public interest element – lesser standard than courtsAlso concerned that such boards must be staffed by persons with expertise, and such persons will invariably hold views based on experience

Awareness of difficulties with appointing persons w/ expertise – thinks some leeway should be given Tension b/w need for expertise and public perceptions of bias

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Professionals called to serve in quasi-judicial and adjudicative positions in many fields, if always disqualified, then no ppl w/ expertise, should resume such bodies will act in good faith

Weywakum Indian Band (2003) (SCC)Facts: Two Indian Bands sued each other and the government over reserves on Vancouver Island. Justice Binnie wrote the judgement. Campbell River band made a FOI request for all claims when Binnie was Associate Deputy Minister of Judgement from 1982-1986 found that Binnie had received information regarding the Campbell River Band claim. When this came to light, Crown filed a motion seeking direction.

Binnie recused himself from all further involvement, although he stated that he had no recollection of the case.

Held: Did not give ROABHas to be a very strong case made out Strong presumption of judicial impartialityReasons:

Distance from claim:Involvement was limited, supervisory 15 yeas since he’d had supervisory role over the file – 15 years of distance is something that a reasonable person would take into accountNo recollection of this case

Involvement before crystallization of litigation: Binnie played no role after the litigation commenced – all involvement at the negotiation stageHe was responsible for thousands of files in his jobNothing particularly unique about this claim

Comment: Binnie is only one among 9 and SCC judges are very independently minded, so highly unlikely that Binnie could have swayed them all (was a unanimous decision)

McBainDeals somewhat w/ RAOB with respect to the Human Rights CommissionFederal human rights process lead to two concerns:

board would prefer commission (who acts as prosecution) and commission gets to choose panel who will hear the case, and will be inclined to choose people it feels will side with it.

Defence of Statutory AuthorityStatutory authority is a complete defence - operates in any aspect of procedural fairness – if statute expressly or by necessary implication says matter dealt with in certain way, end of matter unless can trump statute through rights doc (i.e. Charter, Bill of Rights)

CUPE v. Ontario (Minster of Labour) (2003) (SCC)Facts: In early 1998, the Minister of Labour began appointing retired judges to act as interest arbitrators under the Hospital Labour Disputes Arbitration Act (HLDAA) to hear labour disputes re wages, etc of hospital union workers. Previously, these appointments had usually been made from a roster of trained, experienced and mutually acceptable arbitrators.

Each party to dispute appoints 1 of 3 judges, then both parties agree on third judge; if can’t agree, Minister appoints third judge from list of available personsHere Minister appointed 3 retired judges

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Unions upset – thinks departs from previous practice (where list of appointees was approved by parties), unions generally have little faith in impartiality of judges

Issue: CUPE and SEIU challenged the new appointment process on the basis that the Minister of Labour had interfered with the independence and impartiality of interest arbitrators.

Claims:CUPE claims Minister had duty of impartiality in appointments and failed that duty

RAOB re Minister, because he has interest in outcome of arbitration because member of cost cutting government committed to pay restraint policies in public sector – therefore favours lower pay settlements Public will see Minister as having incentive to appoint persons to hear dispute who will favour lower settlements – conflict of interest

Minister says interest too remote and attenuated (per Pearlman), not self party to dispute rather hospital is, therefore enough distance to prevent RAB

CUPE also argued that Minister should instead delegate authority to senior official rather than making appt themselves

Court says yes, could have done this by statute does not require this and court not going to amend statute to require this

Held: SCC says at least appearance of Minister having significant interest in outcome But, statute authorized Minister to make appointment, therefore complete defenceAbsent a constitutional challenge, a statutory regime expressed in clear and unequivocal language on this specific point prevails over common law principles of natural justice

Ocean Port Hotel: “like all principles of natural justice, the degree of independence required of tribunal members may be ousted by express statutory language or necessary implication”Affirming the rule of interpretation that “courts generally infer that Parliament or the legislature intended the tribunal’s process to comport with principles of natural justice”, the Court nevertheless concluded that “[i]t is not open to a court to apply a common law rule in the face of clear statutory direction”Further, “[w]here the intention of the legislature, as here, is unequivocal, there is no room to import common law doctrines of independence”

Because high level of impartiality should exist in such appointments, necessary implication may not have been good enough – we got clear, unequivocal stat language though so that is enough

ContextualityImperial Oil v. Canada (2006) (SCC)Significance: Contextual approach to meaning of RAOB depending on decision maker and type of decision

Facts: Environmental protection legislation in QB adopts polluter pays principle: enables Minister to order party allegedly responsible for contamination to do study to determine extent and nature of problem, to submit cleanup plan, and perform work at its expense

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Certain steps required before order could be made – notice, reasons, allow party to submit written response, Minister considers response before deciding whether to proceed and issue orderSteps followed, order issuedIO appeals order to Admin Tribunal of QB, loses, goes to Q.B.Sup.Ct. and Q.B.C.A., finally to SCC

Claims:IO alleges lack of impartiality Minister had previously been involved in unsuccessful attempt by government to clean up site; as result of attempt, several persons suing Crown for damages

Challenges impartiality on basis of prior involvement w/ site and the fact that if IO cleans up site at IO’s expense, then does away with legal claims against gov and gov will save $$ Therefore Minister’s decision to issue order is tainted by possible real intention of insulating Crown from consequences of its own failed attempt to clean up site

Quebec Superior Court: RAOB since Minister lacks sufficient impartialityQuebec Court of Appeal: There is an RAOB, BUT defence of necessity applies – justice should not fail because no one can do what statute contemplates be done

Here only Minister can make order, statute allows for such orders, therefore necessity provides defence to what otherwise would be RAOB

SCC: dismissed case Imperial Oil loses since no RAOB Impartiality = decision maker must keep open mind, unfettered Duty of impartiality, like all rules of PF, must apply to reflect context and variations in diversity of decision makers and their roles

Three groupings: Tribunals with adjudicative functions like courts (e.g. grievance arbitrators in labour disputes) = strong duty of impartialityAdmin bodies that perform multiple tasks that may adjudicate and make policy (somewhere in middle – need to look at task being performed and statute to place on spectrum)On other end is admin decision makers like Ministers, officials who perform policy making and make discretionary decisions of enforcing statutes within apparatus of government = less duty of impartiality

Cannot apply RAOB in this context in the same way as would to court or adjudicative and court-like tribunal – must take into account context of decision Obligations of impartiality on behalf of Minister not same as courts or court-like tribunals

Challenge was based on erroneous understanding of how PF applies to MinisterMinister is manager of legislative system, implementing policy and protecting public interest in environmentIn issuing order, Minister is exercising discretionary political power; Minister authorized to exercise power, carrying out stat mandate Only obligation after complying with statutory requirements is to consider any representations made carefully Interest alleged is not personal interest, its interest that Minister would have as member of Crown

Similar to Pearlman lawyers fulfilling stat role any lawyer in same role would have same ‘interest’

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No conflict of interest, no need to rely on defence of necessity, doesn’t even go to stat defence – implication that don’t need the defence

Therefore spectrum (also evident in Bell CND) with adjudicative decision makers who operate like courts on one end where held to high standards, on other end is exec decision making that is often discretionary and not adjudicative and therefore much lower standard

Comment: Crane - this links with independence – degree required depends on type of tribunal – obviously some not fully independent where task so closely linked to government

INDEPENDENCE OF ADMINISTRATIVE TRIBUNALSLack of Independence – Emerging Ground for ChallengeLack of independence is sometimes subsumed under the rubric of bias but is now increasingly treated as a separate issue and a separate basis for judicial intervention

Lack of independence can refer either to: a specific d/maker (lack of adequate individual independence) or the institutional status of the agency or tribunal as a whole (lack of adequate institutional independence)

Individual independence : The question here is whether the individual d/maker is inappropriately dependent on someone else in the d/making process, given the nature and context of the decision-making at issue

Individual d/makers in some contexts are required to make up their own minds as individuals, and must not be “in the thrall” of others, including others in the agency (the chair, lawyers, other tribunal members who did not sit on the case, etc)

Institutional independence:Question here is the extent to which the administrative agency must be free (and must appear to be free) from interference or control by others, particularly others within the executive or political branch In this context, the issue becomes the extent to which administrative d/makers in some contexts require something similar to judicial independence in terms of the so-called Valente criteria used to measure judicial independence:

security of tenuresecurity of remunerationsecurity (independence) in the administration of the cases that come before them

This is a developing area of the law and there is still uncertainty regarding when independence is needed and what kind of independence should apply to administrative d/makers of different kinds

INTRODUCTION“Independence” is closely related to RAOB concerns: the purpose of independence is to foster impartiality and to ensure public confidence in the decision-making process

Goal of independence is to buttress the impartiality of the tribunal

There are essentially 2 kinds of “independence” concerns:96

Institutional independence from the executive branch or other appointing agency: independence of the institution as a whole from the executive branch of government (freedom from the political control of the government)

A link is made here with judicial independence concepts the concern is with the status of the tribunal as a whole and independence is seen to rest on the existence of certain conditions or guarantees of independent status

Individual independence (a.k.a. “adjudicative independence”): independence of mind of each of the individual decision-makers who are assigned to make a particular decision from improper interference or influence by others,

Including interference from other members of the agency who have not been assigned to hear that particular case, and from the staff of the agency including the legal advisors – “he/she who hears must decide” without interference from others who did not hear [a problem in this respect arises, for example, in “institutionalized” or “collegial” d/making as in Consolidated-Bathurst, Tremblay, Geza

TEST FOR INSTITUTIONAL INDEPENDENCEIndependence is closely linked to RAOB:

Is there a RAOB because of a lack of sufficient independence? What would be the perception of the reasonably informed member of the public?

To determine if there is sufficient institutional independence one must assess the relationship between the administrative institution and the executive branch in light of the 3 criteria established in Valente v. The Queen [1985] (SCC) (which concerned the judicial independence of provincial court judges)

security of tenure of the membersfinancial security of the membersinstitutional independence regarding administrative arrangements that are closely related to judicial functions (the assignment of cases, management of court lists, scheduling of cases etc.)

Test: - ValenteIs there a “Reasonable Apprehension of Lack of Sufficient Independence” in light of these three factors? In light of these 3 criteria, would an informed observer have a reasonable apprehension of a lack of sufficient independence at an institutional level (thus giving rise to a RAOB)?

Note: Operational Reality ConceptThe S.C.C. has held (e.g. in Katz v. Vancouver Stock Exchange SCC 1996) that one should consider the actual way in which the system operates (the “operational reality”) in deciding whether or not sufficient independence exists in relation to the Valente criteria

DIFFICULTIES AND RESTRICTIONSConceptual ProblemsThere are obvious conceptual problems in applying the Valente criteria to administrative decision-making. These include:

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Not all admin d/makers are intended to be independent or at arm’s length from gov’t control: how to decide which should be independent and which should not? Accountability to the public is reduced or lost the more that an admin body is independent from govt and not subject to any control by govtSCC sees tribunals as part of the executive branch

The conceptual problems in applying the Valente criteria to administrative decision-making gives rise to restrictions in the application of the principle of independence in this context. There are at least 3 restrictions in this respect:

Principle of independence clearly cannot be applied to all administrative decision-makers presumably applies primarily to tribunals that are “court-like” and have adjudicative functions

Where the principle of independence has been employed to administrative d/makers, it is employed with flexibility to take account of the specific administrative context (see Bell Canada para 21)

If arrangements for tenure, remuneration, and administrative independence are expressly dealt with in a statute, the defence of statutory authorization provides a complete defence (Ocean Port Hotel) unless the Charter or a quasi-constitutional rights document such as the Canadian Bill of Rights or the Quebec Charter can be successfully invoked

NOTE: recent B.C. case re independence: McKenzie .v Min of Public Safety 2006 BCSC 1372; 2007 BCCA 507; leave to appeal to SCC dismissed April 2008

Structural BiasStructural bias / overlapping functions: whole process called into question because of the way the process has been institutionalized / how the structure works, perhaps caused by the legislation

e.g. same officials investigate then become decision makers, or subtle pecuniary interest built into the processMacBain: overlapping functions of HR Commission to investigate, appoint tribunal and “prosecute”

R. v. Lippé began to identify structural bias cases as cases regarding institutional impartiality

The test for such bias was also established in Lippé and is a simple variation of the standard RAOB test set out in Quebec Inc and also cited in Bell Canada

Test:Would a well-informed person, viewing the matter realistically and practically – and having through the matter through – have a RAOB in a substantial number of cases (because of the way in which the decision-making process is structures)?

If yes, and if the statutory authority defence is not applicable, a remedy will be granted.

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MacBain v. Canadian Human Rights Commission (1985) (FCA)Facts: When a sexual harassment complaint was made against MP MacBain, HR Commission could appoint an investigator. After investigation report, according to the statute, Commission could either reject the complaint, or if it considers complaint substantiated the chief commissioner would appoint a 3-member tribunal panel, which would substantiate the claim again. A Commission staff lawyer would appear before the tribunal to “prosecute” the complaint (thus overlapping functions of HR Commission to investigate, appoint tribunal and “prosecute”).

Claim:Allowing the commission to choose the tribunal allowed them to select the judges in a biased way, and that the statutory authorization for this was trumped by s.2(e) Bill of Rights (court did not need to look at Charter s.7, although it was argued).

Decision:We are dealing with determining the rights and obligations of individuals here (e.g. not to discriminate) so Bill of Rights s.2(e) fundamental justice triggered.Fundamental justice includes rule against bias.There is a RAOB here, since Commission appoints the tribunal and then argues (“prosecutes”) the case before it (i.e. one of the parties gets to choose the adjudicator which might encourage panel members to decide in that party’s favour to get re-appointments again in the future)Can also think of this as insufficient independence between adjudicator and one of the parties.Defence of necessity rejected (rather the system must be changed due to importance of quasi-constitutional rights).

Remedy was declaration, for this HR complaint only, that the relevant parts of the Canadian Human Rights Act do not apply

Changes: HR tribunal set up as separate body, so that once Commission makes finding that should be full hearing, sends to tribunal, then seized by president of tribunal, president (separate from Commission) decides who will sit on panel

Comment:Feds quickly amended the Act after this case to set up an independent tribunal with no link to Commission.If in B.C. the Commission appointed the tribunal and argued before it, the Bill of Rights (being a federal statute) doesn’t apply, which would leave the Charter s.7 and Blencoe (where s.7 was not triggered by delay in HR complaint process) to be argued – likely that statutory authorization would win out.

Bell Canada v. Canadian Telephone Employees Association (2003) (S.C.C.)Significance: explains institutional independence vs. institutional impartiality (structural)

Must take a contextual approach to the issues of both independence and impartialityAlso have to read for spectrum idea, importance of context

Facts: Bell brought a motion before a panel of the Canadian Human Rights Tribunal, which had been convened to hear complaints filed against Bell by female employees. 

Claims: Bell alleged that the Tribunal’s independence and impartiality were compromised by two powers:

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First, the power of the Canadian Human Rights Commission to issue guidelines that are binding on the Tribunal concerning “a class of cases”, and Second, the power of the Tribunal Chairperson to extend Tribunal members’ terms in ongoing inquiries.

Reasoning:

Importance of context:The requirements of procedural fairness — which include requirements of independence and impartiality — vary for different tribunals. 

Consolidated-Bathurst: “the rules of natural justice do not have a fixed content irrespective of the nature of the tribunal and of the institutional constraints it faces”.  Rather, their content varies.  Newfoundland Telephone: the procedural requirements that apply to a particular tribunal will “depend upon the nature and the function of the particular tribunal”Ocean Port Hotel: administrative tribunals perform a variety of functions, and “may be seen as spanning the constitutional divide between the executive and judicial branches of government” (para. 24). 

Idea of a spectrum: Some administrative tribunals are closer to the executive end of the spectrum: their primary purpose is to develop, or supervise the implementation of, particular government policies require little by way of procedural protections.  Other tribunals, however, are closer to the judicial end of the spectrum: their primary purpose is to adjudicate disputes through some form of hearing.  Tribunals at this end of the spectrum may possess court-like powers and procedures stringent requirements of procedural fairness, including a higher requirement of independence

Must look at exactly what the tribunal does (context) to determine where they fall on the spectrum standard will vary from case to case depending on the context

In this case, main function of the Human Rights Tribunal is purely adjudicativeSeparate from the commission, which does the investigation, screening, reporting to government, etc.Tribunal is the adjudicative body – all it does is adjudicate, pretty much like a court

Importance of the interests at stake high degree of independence is importantImportant nature of the rights themselves: dignity interest of the complainants, reputation interests of discriminator, public interest in preventing discrimination

Held: Reject all of bells arguments – no lack of impartiality or independenceLooks at the specific allegations finds them all without substance

On the power of the Human Rights Commission to make guidelines that are applicable to certain classes of cases (impartiality issue):

Crane: odd that they are called guidelines, since essentially regulations (subordinate legislation)Not a problem here since this situation happens all the time: government agencies make regulations and then appear before tribunals this is the way regulations work

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Cannot assume that tribunal will favour the government just because applying laws that the government made – making laws is what government does!

Thus, Commission’s ability to make regulations and then appear as a prosecutor is not a problem

However, Court notes that placing both guideline making and prosecutorial power in the Commission could somehow allow the Commission to manipulate to receive particular result in a particular case

However, there is not evidence of this here = not an issueGuidelines are for a class of cases, not for specific cases: any changes would have to have been made in advance of the hearing or there would be retroactivity issues

THUS: Ability to make guidelines did not give rise to an ROAB in a substantial number of cases = sufficiently impartial

On the ability of the chair to extend time of appointments (independence issue):Bell tried to argue that this meant that the members of the tribunal did not have sufficient security of tenure - concern that may try to curry favour with the tribunal chair to extend term – internal independence problemHowever, provision only applies when a member of the tribunal is sitting in the midst of hearing a case and there term expires during this time the tribunal chair may then extend the term to the end of that particular hearing Court notes that someone must have the ability to extend terms in these circumstance, so it might as well be the tribunal chairExtending to the end of the case does not create a reason for the tribunal member to try and curry favour since term will end anyway

THUS: Ability of tribunal chair to extend member terms did not give rise to an ROAB in a substantial number of cases = sufficiently independent

Quebec Inc v. Quebec (Regie des Permis D’Alcool) (1996) (S.C.C.) Facts: Case dealing with the impartiality and independence of the liquor licensing board in Quebec – Regie des permis d’alcool

Issue: Whether the Regie had sufficient administrative control and security of tenure to be considered impartial and independent

Quebec has the Quebec Charter of Rights and Freedoms which only applies to tribunals if they are making quasi-judicial decision Regie was determined to be quasi-judicial and thus the Charter applied

Quebec Charter guaranteed the right to have a fair hearing – quasi-constitutional guarantee

Decision: “institutional impartiality” breached (and so breach of Quebec Charter of Rights and Freedoms s.23) because the agency’s (Regie’s) lawyers could hypothetically file / investigate / prosecute / and advise the boards members on how to write their decisions and Director’s could initiate / appoint panel / sit on panel (i.e. there was no legislative structure to prevent the same lawyer / Director doing all these overlapping functions

i.e. looking at worst case scenario, as opposed to operational reality / what actually went on, and there was no evidence of this actually happening). As a result, decision

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was quashed, and suggested the agency implement internal rules to prevent same lawyer / director taking on these multiple roles.

Applied the Valente criteria: Security of Tenure – issue of impartiality

Statute mandated that members of Regie serve for 5 year fixed terms (although tended to actually be appointed for 2,3 or 5 years) Members dismissible only for cause

SCC held there was sufficient security of tenure a fixed term is fine as long as members are not dismissible at pleasure and that there is an independent review process to determine cause

Note: would be problem if only held office at pleasure

Administrative control – issue of independence Challenge was that there was too much executive control exercised by the Minister over the Regie annual report to Minister, Minister can require chair to provide information on Regie activities, Minister had to approve internal rules and regulations, Minister evaluated performance of the chair, Minister could initiate a proves to cancel a liquor license etc. = too many indicia of executive control

Argument rejected – although there is a need to calibrate the amount of executive control, given the context here the kind of admin control exercised was appropriate

Although the Regie was a high end tribunal, this kind of relationship was okay

Comment: thus apparently less toleration / flexible approach since in quasi-constitutional setting here

Ocean Port Hotel v. B.C. (Liquor Control) (2001) (S.C.C.)Significance: Boils down to a question of security of tenure – here have fixed terms but can be dismissed at pleasure (unlike Quebec Inc where could only be dismissed for cause)

Facts: under the B.C. Liquor Act:Senior inspector could hold hearing re: allegations of wrongdoing, and suspend license for up to 14 days (which would have significant financial impact on a pub say, and would likely be more than the criminal fine available under the Act). Here, senior inspector suspended Ocean Port’s license for 2 days (over the weekend) but claim by Ocean Port of lack of PF.

If there is no appeal, this is the end of the road BUT…There is a de novo appeal to the Liquor Appeal Board (separate body), and any suspension from stage 1 doesn’t take place until after appeal period expired, or if appeals until after it is completed, so this second stage can apparently fix any problems from the first stage (which will have no immediate negative consequences).However, statute says the Appeal Board members are appointed at pleasure, and so if can argue this causing insufficient independence of the Appeal Board from the executive branch, then appeals in stage 2 cannot fix PF errors in stage 1.

Claim: Appeal Board did not sufficient independence do to insufficient security of tenure

B.C.C.A.: claim of lack of independence won since statute specifically stated that members were dismissible at pleasure

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Process if very court like, so Valente criteria should apply – not sufficient security of tenure = not sufficiently independentApplied Quebec Inc principles, which requires fixed term appointment acceptable only if dismissible for causeBut somehow missed issue of statutory authorization!

S.C.C. decision:There is statutory authorization here, and unlike Quebec Inc there is no quasi-constitutional issue i.e. there is no equivalent of the Quebec Charter in BC! Thus absent constitutional or quasi-constitutional constraints, degree of independence can be set by statute, although court can fill in any missing gaps and when doing so will not assume legislature intended to go against natural justice (and hence rule against bias applies) unless legislation explicitly says so.

On statutory authorization:“It is well established that, absent constitutional constraints, the degree of independence required of a particular government decision maker or tribunal is determined by its enabling statute. It is the legislature or Parliament that determines the degree of independence required of tribunal members. 

Confronted with silent or ambiguous legislation, courts generally infer that Parliament or the legislature intended the tribunal’s process to comport with principles of natural justice… In such circumstances, administrative tribunals may be bound by the requirement of an independent and impartial decision maker, one of the fundamental principles of natural justice. It is not open to a court to apply a common law rule in the face of clear statutory direction.  Courts engaged in judicial review of administrative decisions must defer to the legislator’s intention in assessing the degree of independence required of the tribunal in question.

Here there was a clear statutory provision clear legislative intentionIt was an error for the BC court to apply Quebec Inc because there is no equivalent to the Quebec Charter in BC, on which the Quebec Inc. decision was based – no constitutional or quasi-constitutional guarantee in this case

Argument based on preamble:Ocean Port also tried to argue that, as was held in the Provincial Court Judges Reference case, the preamble of the constitution guaranteed independence for provincial courts argue that this guarantee of independence should also apply to tribunals of a certain kind (i.e. quasi-judicial functions)

Rejected: But here, this is a tribunal so doesn’t enjoy same judicial independence of the courts

Role of tribunals is to implement the policy of the legislature, so the legislature should determine how policy will be appliedThe classical division between court and state does not, however, compel the same conclusion in relation to the independence of administrative tribunals.  As discussed, such tribunals span the constitutional divide between the judiciary and the executive.  While they may possess adjudicative functions, they ultimately operate as part

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of the executive branch of government, under the mandate of the legislature.  They are not courts, and do not occupy the same constitutional role as courts. 

Comment: Can also look to see if section 8 of the Administrative Tribunals Act appliesATA s. 8 provides: “The appointing authority may terminate the appointment of the chair, a vice chair or a member for cause.”

Consolidated Bathurst (1983) (S.C.C.)Challenge to the "institutional d/making” processes of Ontario Labour Relations Board – the Full Board Meeting Strategy (FBM)

Facts:Ontario Labour Relations Board is large – it has 48 members, and they generally sit in panels of 3, with tripartite structure (neutral chair + 1 employer rep + 1 employee rep). Decisions often turn on matters of policy such as how to interpret the Labour Code.Labour code imposes duty to bargain in good faith on parties when negotiating a new collective agreement. Company here failed to disclose to union that they were thinking of closing the plant (and shortly afterwards it did close). Was failure to disclose this impending closure a breach of obligation to bargain in good faith?A previous Labour Relations Board case Westinghouse had confronted the same issue and designed a test: if the company’s plan had reached a de facto decision stage it had to be disclosed (and although no formal stare decisis, this was an important previous policy). In the present case, the employer wanted this rule changed (so that it only had obligation to disclose after final decision) and employee wanted change the other way (obligation to disclose any plan being considered).Panel drafts a decision and set of proposed reasons. It then request consultation with all other members of the Board at a full board meeting

This follows Board process that on any major policy issues, any panel member may ask Chair to convene full board meeting after draft reasons prepared – thus it is a voluntarily initiated process and attendance is voluntary, draft decision is put before full Board meeting, the panelists explain it and facts are taken as given, there is talk of policy only and no vote so final decision remains with the panel, but parties to the particular case have no notice and cannot attend and do not know what was discussed). The full Board meeting suggests keeping the Westinghouse test.

The employer found out about this full Board meeting and challenges the process, complaining they could not be present.

ARGUMENTS IN FAVOUR OF CONSULTATION PROCESSES LIKE FBMFosters consistency [enables prediction of outcomes]; uniformity [treat like cases alike] and stability [equality before the law] –

Good things for labour relations climate [the size of the Board, the different possible configurations of panels, the absence of stare decisis, the large number of cases, and the absence of an appeal mechanism, all make achieving consistency in d/making a very real problem for the Board.]

Contributes to better-informed d/making: the impact of a panel's proposed decision on the labour relations community can be explored in light of the accumulated experience of all Bd. membersEducation: ensures all Board members have a better understanding of Board's policies Without FMB there would be informal consultations anyway [FBM not really different from a judge conferring with law clerks or informally discussing proposed

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decision with other judges; FBM also similar to judge reading reports, periodicals after hearing to better inform herself re law and policy]Full board hearings of 48 members would be an impractical way to resolve important policy issues and achieve uniformity; it is also impractical to allow parties to attend FBM to make submissions

PROCEDURAL PROPRIETY CONCERNS RAISED BY CONSULTATION PROCESSES (1) Possible breach of principle that he/she who decides must hear [or, those who don't "hear" must not be the ones to decide] – did the other board members who had not heard the matter, inappropriately “participate” in the final decision to such an extent that this principle is breached?

(2) “Adjudicative independence” concern: did the FMB give rise to a reasonable perception that the individual panel members who heard the case and who were charged with deciding it, were being in appropriately "interfered" with or unduly influenced by the other panel members, leaving them without the freedom to make up their own minds, in accordance with their own consciences and opinions?

Note: this probably could perhaps also be seen in terms of being an illegal sub-delegation by the panel members to others or as the panel members unlawfully acting under the "dictation" of others

The panel who heard the parties may be swayed by opinions of other members of the agency who did not hear the evidence/submissions; other members may be [or may appear to be] improperly interfering with or participating in the decision or may even usurp the panel's d-making power

(3) Possible breach of audi alteram partem precepts i.e. parties have a right to be heard, must have notice of the case they must meet, must have an effective chance to respond to the case against them but at the FBM, information, arguments, opinions might have been expressed which the parties do not know about and do not have an opportunity to address

i.e. the parties will not be effectively "heard" on the matters discussed at the FBMPer Kane, parties have a rightt to a decision made "on the record" - on the basis of only the information, facts, evidence, argument presented at the hearing and not on the basis of any "extra-record" material that they didn't have a chance to rebut or respond to]

OTHER SPECIFIC ARGUMENTS AGAINST THE FBM…Don't know if the FBM retained the Board's and panel’s "representative" tri-partite character Act expressly requires Board to give parties full opportunity to present evidence/submissions Very important issue is at stake - serious civil consequences possible [i.e. more fairness required]"Policy" is more like facts than law [party should be heard on policy issues same as heard re facts]Uniformity/consistency in d/making is a laudable goal but should not be achieved at expense of N.J.

Decision (6-2): recognized practicalities for collegial decision making, but set out limits to maintain natural justice:

Should allow some collegial decision making since advantages outweigh the disadvantages:

See arguments for and against delegation / collegial decision making above105

Need to balance institutional concerns (such as consistency) against PF concerns (such as parties not being present at full Board meeting)

Independence concerns:Independence of panel members must be preserved so that decision remains with the panel:OK for full Board consultation to influence panel members so long as it does not amount to coercion (i.e. impose a decision on them) or constraint on their decision (i.e. must not impinge on their ability to freely decide according to their own conscience / opinions).Here there were sufficient safeguards to preserve independence, because:

Consultation was not imposed but was voluntarily requested by panel (unlike Tremblay below)No attempt to create a consensus (no vote, no minutes)Was just a sharing of viewsUltimate decision left up to the panel

Right to be heard concerns (audi aulteram partem, Kane):Would be wrong for consultation process to consider facts or introduce new facts, but OK to discuss law and policy.If panel considering a new policy / legal interpretation as a result of full Board meeting then they must give the parties an opportunity to be heard on that matter.

RemediesJudicial Review Procedure Act (BC)Judicial Review Procedure Act, RSBC 1996

The Judicial Review Procedure Act (JRPA) sets out the procedures that must be followed in making applications for judicial review in BC in relation to administrative decision-makers that fall within provincial (as opposed to federal) jurisdiction

Such applications are made to the B.C. Supreme Court which has exclusive jurisdiction in this regard.Under s.2 of the JRPA, an application for judicial review is an originating application, brought by petition.

Under the JRPA, the application for judicial review, supplants the applications that could formerly be made for the prerogative writs (certiorari, mandamus, and prohibition) or other public law remedies (declaration and injunction). Thus, subsection 12(1) of the Act, provides that no writ of mandamus, prohibition or certiorari may be issued and subsection 2(2) of the JRPA provides:

s. 2(2) On an application for judicial review, the court may grant any relief that the applicant would be entitled to in any one or more of the proceedings for:

relief in the nature of mandamus, prohibition or certiorari;a declaration or injunction, or both, in relation to the exercise, refusal to exercise, or proposed or purported exercise, of a statutory power.

JRPA ss. 8(2): a court cannot refuse to grant a remedy solely on the ground that an applicant for judicial review made a mistake regarding what kind of relief it requested.

E.g. if the applicant asked for relief in the nature of mandamus, but then made out a case that would call for relief by certiorari, but not mandamus, the Court would not

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refuse to grant relief just because the applicant made a mistake with regard to what relief he/she had originally requested in making the application.

In the same vein, section 14 provides that “an application for judicial review is sufficient if it sets out the ground on which relief is sought and the nature of the relief sought, without specifying by which proceeding referred to in section 2 the claim would have been made prior to the time that the JRPA came into force”.

Thus, the “policy” of the JRPA is clearly to move away from the problems that existed in the older law when an applicant could lose a case on the technicality that he/she had sought the wrong remedy.

Under s.5 of the JRPA, the BCSC, on an application for judicial review is given express power to refer the matter back to the tribunal to reconsider and determine and the court may give the tribunal directions for the reconsideration [e.g. can direct what procedures are required]

Section 8 of the JRPA preserves the discretionary nature of remedies in judicial review by expressly preserving the discretion that the court had prior to the time that the JRPA came into force to refuse to grant relief on any ground.

s. 8(1) If, in a proceeding referred to in section 2, the court had, before February 1, 1977, a discretion to refuse to grant relief on any ground, the court has the same discretion to refuse to grant relief on the same ground.

JPRA section 9 expressly grants the court power on an application for judicial review to refuse relief if the sole ground established is a defect in form or a technical irregularity and the court also finds that no substantial wrong or miscarriage of justice has occurred. This is known as “the slip rule” and would apply only to minor defects and not to significant errors such as a denial of procedural fairness.

Under s. 11 of the JRPA, there is no time limit for an application for judicial review.

s. 11  An application for judicial review is not barred by passage of time unlessan enactment otherwise provides, andthe court considers that substantial prejudice or hardship will result to any other person affected by reason of delay.

BUT note that s. 57 of the Administrative Tribunals Act, where it has been made applicable to a particular tribunal, provides that applications for judicial review of a final decision of a tribunal must be commenced within 60 days of the date of the decision but also enables the court to extend the time if satisfied “that there are serious grounds for relief, there is a reasonable explanation for the delay and no substantial prejudice or hardship will result to a person affected by the delay”.

Pursuant to s. 16, the Attorney General of BC must be served with all notices of an application for judicial review and is entitled to be heard in person or by counsel at the hearing of the matter.

Pursuant to s. 15, applications for judicial review in relation to the exercise of a statutory power must be served on the person authorized to exercise the power.

Section 15 further provides that such a person “may be a party to the application, at the person’s option”. However, the question of a tribunal’s “standing” in judicial review matters is more complicated than this section suggests.

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REMEDYING A PROCEDURAL FAIRNESS DEFICIENCY WITHIN THE ADMINISTRATIVE SYSTEMProblem: When an administrative decision-maker has acted in a way that contravenes procedural fairness, can that breach be "corrected” within the administrative system itself so that an application for judicial review based on the initial procedural deficiency will be denied?

The answer to this problem, as often the case in administrative law, is "maybe" - "it depends on all the circumstances."Generally speaking, to determine if a fair procedure has been followed, one must examine the entire administrative proceeding in all its stages (e.g. as in Irvine)

Ways to Correct Procedural DeficienciesProcedural deficiencies or irregularities at one stage can sometimes be corrected “within the system” if the aggrieved party has later had a full and fair hearing at a later stage

A tribunal, in the course of a proceeding, can usually correct its own deficiencies

E.g. if adequate notice of the proceeding or of "the case to be met" has not been given, the tribunal can adjourn proceedings until proper notice has been given or fuller information provided so as to cure the default

Where a tribunal has violated procedural fairness in making a decision, it may have an express jurisdiction to reconsider the matter and, if so, it may be able to correct its own procedural error through a reconsideration

Some statutes expressly provide for a reconsideration power; it is unlikely that such a power could be implied as a tribunal which has held a hearing and made a final decision would be functus officio – it would not have power to deal further with the matter

Where a statute provides that an initial administrative decision can be reheard by or appealed to a second administrative decision-maker (i.e. where some kind of "internal" administrative review or appeal process exists) and a fair procedure is then followed in the 2nd administrative proceeding, this may remedy a denial of procedural fairness in the original decision depending on all the circumstances:

Whether it will do so or not will depend largely on whether or not the person appealing would be somehow prejudiced at the second proceeding because of the denial of procedural fairness in the first proceeding in a way that cannot be corrected at the second proceeding [i.e. how much enduring "negative baggage" or adverse inference is carried over from the original process into the second process?]

E.g., where the 2nd administrative hearing or appeal is a full new hearing on the merits [like a "trial de novo"] it should be able to "cure" any procedural defects in the first proceeding, and where this is the case, an application for judicial review based on a breach of procedural fairness in the first proceeding will likely not succeed

However, in some cases, the second proceeding may be conducted "on the record" of the first proceeding, without a new hearing process, and where this is the case, and where the "record" is arguably

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deficient because of the original breach of procedural fairness, the second proceeding will likely not be sufficient to correct the original deficiency, with the result that an application for judicial review based on a breach of procedural fairness in the first proceeding will likely succeed

Exhaustion PrincipleThe "exhaustion" principle supports "internal self-correction"

judicial review is a discretionary remedy and an applications for judicial review a court may refuse to grant a remedy on a number of grounds even where all the necessary criteria for a remedy are otherwise present (see Part B of this handout)

E.g. courts often require applicants for judicial review to "exhaust" internal appeal or other review remedies before seeking judicial review and this gives the administrative system an opportunity to "self-correct" its own errors or otherwise resolve the problem

That is, judicial review tends to be regarded as a last resort and if an "adequate alternate remedy" is available, a court will typically require applicant to use that remedy before seeking judicial review

DISCRETIONARY GROUNDS TO DENY A REMEDY IN JUDICIAL REVIEW PROCEEDINGS

Traditionally, the prerogative writs that could be issued by a superior court in judicial review proceedings (eg. certiorari, prohibition, mandamus) were considered extraordinary remedies and their issuance was considered a matter of the court’s discretion; the same applied regarding the private law remedies of a declaration and injunction when sought in a public law context

It continues to be the case that there is “no right to a remedy” in judicial review proceedings:

Even when the case for granting a remedy has otherwise been made out by an applicant, remedial relief is discretionary and a court may refuse to grant such relief on the grounds set out below; Note that s. 8 of B.C.'s Judicial Review Procedure Act expressly states that where a court had discretion to refuse relief on any ground prior to the Act, it continues to have such discretion

Mootness and Hypothetical QuestionsCourts may exercise their discretion to refuse relief in judicial review proceedings if the question is, or has become, hypothetical or moot; The mootness rationale may not be applied where there is a public interest in having a court rule on an important matter, particularly if the problem complained about is likely to recur and the court is otherwise in a position to issue a decision

See the mootness discussion in: New Brunswick Minister of Health v. J(G) (covered previously)

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Delay in Bringing the Application for Judicial ReviewA remedy may be denied if there has been an unreasonable delay in bringing the application for judicial review and others would be prejudiced by allowing the application to proceed

E.g. prejudice could arise by detrimental reliance on the administrative decision at issue or because of difficulties in mounting a defence to an application after the passage of time

Federal Courts of TribunalsNote that under ss.18.1 (2) of the Federal Courts Act, applications for judicial review must be brought within 30 days of the decision issued by a federal board, commission, or tribunal, but the court has discretion under that provision to extend the time for bringing an application

BC TribunalsWhere s. 57 of the ATA (B.C.) has been made applicable to a particular tribunal it provides that applications for judicial review of a final decision of a tribunal must be commenced within 60 days of the date of the decision but also enables the court to extend the time if satisfied “that there are serious grounds for relief, there is a reasonable explanation for the delay and no substantial prejudice or hardship will result to a person affected by the delay”Where s.57 of the ATA does not apply, s.11 of B.C.'s Judicial Review Procedure Act provides that an application for judicial review is not barred by passage of time unless an enactment otherwise provides and the court considers that substantial prejudice or hardship will result to any person affected by reason of the delay;

However, this absence of a general time bar in the JRPA would not prevent the court from exercising its overriding discretion to refuse relief on the grounds of unreasonable delay, as outlined above

Misconduct Of The Applicant (The "Clean Hands" Issue) The misconduct of an applicant (an applicant who seeks relief without “clean hands”) may provide grounds on which to deny relief as a matter of discretion although this will be rare

Homex Realty provides an example of where relief was denied, even though the grounds for a remedy had otherwise been made out, because of the applicant’s misconduct in his dealings with the municipality and his attempts to evade responsibility for the costs of providing services to the lots in the sub-division

WaiverA party who has knowledge of all the facts, and of his or her legal rights in the matter, may waive a breach of procedural fairness, including a right to complain about bias or lack of independence

A waiver may be express and sometimes can be implied, depending on all the circumstances; a mere failure to object will not readily be construed as a waiver but could be so construed in cases where a party is represented by counsel and the right to object was clearWhere an objection has been made and maintained before the administrative body, a party’s continued participation in the proceedings will not thereafter be construed as a waiver [in fact, the party may be obliged to continue, given the court’s reluctance to entertain “premature” applications as described below!]

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PrematurityJudicial review is typically viewed as “a last resort” remedy and a court may refuse to grant relief where a tribunal has not yet completed its proceedings - this practice avoids fragmentation and protraction of administrative processes

Accordingly, applications for judicial review brought prior to, or in the midst of, administrative proceedings will often be discouraged and relief may be denied on the ground of prematurityHowever, no categorical rule can be stated:

E.g. applications for prohibition to prevent a biased tribunal, or one that lacks sufficient independence, from sitting, or to prevent a tribunal from failing to accord the applicant a right to be heard in its proceedings, may be granted, but in such cases the court will usually require that the tribunal has at least had an opportunity to make a ruling on the issue in question, and has decided to continue its proceedings despite the objections

Some of the advantages in denying relief on the grounds of prematurity include:Where the issue relates to procedural fairness, the alleged “defect” in the process may be remedied by the tribunal prior to the end of proceedingsA party that seeks to complain about the process in the midst of the proceeding may ultimately succeed on the merits and no longer wish to complainCourts can consider all issues arising from the administrative proceeding together, after the proceeding has been completed, and on the basis of a full record of the proceedings, rather than on a piecemeal basis and an incomplete record [awaiting the tribunal’s final decision may also sharpen the focus of the administrative law issues]

Adequate Alternate Remedy

Read the decision in Harlekin v. University of Regina (on the companion website) on this issue

This ground for denying relief is closely related to prematurity in that one of the reasons why an application for judicial review might be considered “premature” is that the applicant has available to him or her adequate alternate avenues of possible relief that should be exhausted first, before the application for judicial review will be entertained

E.g. where there is a right of appeal or review available that could correct the very situation the applicant for judicial review seeks to complain about, the applicant may be required to first exhaust that avenue before seeking judicial review

General rule: an applicant for judicial review must exhaust all such rights of appeal or review before seeking judicial review if the appeal/review rights amount to "an adequate alternate remedy" in all the circumstances

The right of appeal/review may be “internal” to the overall administrative scheme or it could be an “external” appeal such as a right of appeal to a courtWhere there is a right of appeal to a court, and the appeal court is empowered to grant an appropriate remedy for the specific situation for which relief is sought, a court will almost invariably require that the appeal be pursued as a complete substitute for judicial review proceedings (although it could also require that any internal administrative remedies be pursued to exhaustion first)

Note Federal Courts Act (s. 18.5): where an appeal lies from a decision of a federal board, commission or tribunal to the Federal Court, the S.C.C., the Court Martial Appeal

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Court, the Tax Court, the Governor in Council, or Treasury Board, the appeal must be pursued rather than judicial review to the extent that the appeal can cover the applicant's grounds of attack

More difficult questions arise when the question is whether an applicant for judicial review should be required to first exhaust internal administrative appeals or review remedies found within the administrative scheme before seeking judicial review; however, requiring an applicant to do so has a number of possible advantages similar to those outlined above in relation to prematurity

(1) The internal appeal might resolve the matter in a way that obviates the need for judicial review by correcting or curing a procedural error at first instance:

If an internal appeal amounts to a “hearing de novo” that is separate and independent from the first proceeding, so that it provides a “fresh start”, and the appellant does not bear any negative burden because of the findings and decision made in the initial proceedings [i.e. no “baggage” is carried over from the initial proceeding] a breach of fairness at the first proceeding can be fully corrected by according full fairness in the administrative appeal If the internal appeal body is empowered to review for errors of law made at first instance, since a failure to accord procedural fairness is an error of law, the internal appeal tribunal would likely have jurisdiction to find that the first instance tribunal made such an error and then remit the matter to that body for a rehearing that will accord fairness

(2) The internal appeal might obviate the need for judicial review by resolving the substantive issue in favour of the applicant

(3) decisions reached by the internal appeal body may assist the court in its review function if and when the matter ultimately goes to judicial review, e.g. by providing the court with the benefit of the internal appellate body’s expertise on the matter, as well as a complete record

To determine if an internal appeal or review mechanism is “an adequate alternative forum” courts examine the nature of the internal appeal forum/processes and take into account factors such as:

the nature of the internal appeal body, its powers and processes: can the internal appeal forum resolve and correct the matter that the applicant seeks to complain about?the convenience of the alternate forum: how convenient is the alternate forum in terms of its costs and expeditiousness, as opposed to a judicial review application?the procedures and capacities of the other body: will the forum operate with procedural fairness and without bias? is the forum sufficiently independent ?

Where a court refuses relief on the basis that an internal appeal or review process provides an adequate alternative forum, this does not preclude the possibility of a subsequent application for judicial review once the those processes have been completed, if grounds to complain remain

Remember also that it is difficult to be categorical in regard to adequate alternate remedies: the nature of the interests at stake must always be taken into account along with the extent to which such interests might be seen to be immediately and irreparably prejudiced by the initial decision in relation to which procedural fairness has been denied

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Zahab v. Salvation Army Grace Hospital (1991) (Ont. Div. Ct.) Facts: a hospital board suspended Zahab’s hospital privileges following a decision-making process that the court found to be in breach of procedural fairness obligations. The statute provided for an appeal to an administrative tribunal by way of a "hearing de novo." Zahab invoked this administrative appeal process but at the same time, sought judicial review of the initial decision. Held: the existence of the appeal process did not "save the situation" because the revocation had immediate serious consequences for Z. and he would suffer irreparable damage to his reputation because of it.

Accordingly, the court quashed the initial suspension decision and reinstated Z. hospital privileges, pending the re-hearing that would occur in the administrative appeal process.

BREACH OF PROCEDURAL FAIRNESS - THE "FUTILITY" ISSUE?Where there is a breach of procedural fairness the S.C.C. has typically held that an individual is entitled to a remedy regardless of whether it appears virtually certain that the substantive decision would have been the same, even if procedural fairness had been accorded (For a rare exception to this principle see: Mobil Oil Canada Ltd (1994) (SCC)

In other words, in the absence of any of the traditional grounds on which the court might to refuse to exercise its discretion to grant a remedy a remedy should follow a breach of procedural fairness without regard to any perceived "futility" of holding another hearing [That is, "speculation" by the reviewing court as to the ultimate outcome is forbidden.]

Cardinal v. Kent Institution (1985) (SCC): Facts: some prisoners had been segregated from the rest of the prison population after an alleged hostage-taking. The Segregation Review Board recommended the segregation should end, but the Director decided to continue it without hearing from the prisoners this breached procedural fairnessClaim: However, prison officials argued that no remedy should be granted b/c the breach did not matter -- the prisoners had not been prejudiced by the breach b/c the Director would have decided to continue the segregation even if he had heard from the prisoners. Held: SCC rejected this argument, holding that once a breach of PF is found, the court should not consider whether the result would have been the same even if a procedurally fair process had occurred. Le Dain J. stated:

"I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing."

Lakeside Hutterite Colony v. Hofer (1992) (SCC):

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Facts: (a domestic tribunal case) no notice/hearing was provided of a meeting regarding the expulsion of the plaintiff Hutterites from their colony on the grounds of behaviour deemed to be inconsistent with the Hutterite way of life.Claim: the Colony argued that the decision would have been the same anyway, because there was nothing the plaintiffs could say that would change the colony's judgmentHeld: S.C.C. (per Gonthier J.) said:

"…natural justice requires procedural fairness no matter how obvious the decision to be made may be. It does not matter whether it is utterly obvious that [the plaintiffs] would be expelled. Natural justice requires that they be given notice of a meeting to consider the matter and opportunity to make representations concerning it. This may not change anything but this is what the law requires."

SUBSTANTIVE REVIEWWhat is meant by “substantive review?Substantive review = review of the merits or substance of the decisions of administrative tribunals or other kinds of administrative decision makers

Standard of Review (SOR) questionKey question: by what standards will a court review a decision of an administrative tribunal and grant a remedy on the ground that there has been an error on a question of law, a question of jurisdiction, a question of mixed fact and law, a question of fact, or an abuse of discretionary power?

First Area of Focus – Statutory InterpretationErrors made by the tribunal in interpreting its statutory mandate – interpretations of its enabling statute:

Errors of LawErrors of JurisdictionErrors of Mixed Fact and Law

Example: CUPE v. New Brunswick Liquor and the meaning of statutory language used in s. 102(3)(b) of the Public Service Labour Relations Act

s. 102(3)…employees may strike and during continuance of the strike …

(b) the employer shall not replace the striking employees or fill their position with any other employee

PSLRB in New Brunswick gave an interpretation of this provision in the course of determining whether the employer had breached this provision or not.

Key issues of concern in looking at the CUPE case will be: What is the proper approach of a court when called upon to review the merits of the decision of the PSLRB in an application for judicial review?

How did the S.C.C. decide what approach to adopt? What was the standard of review (SOR) that was ultimately adopted and applied and why?

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What is the significance of the standard of review adopted, both in concrete terms and in theoretical terms?

Some Underlying Theory: Tensions between “rule of law” precepts and a “functionalist” approach Why should courts even consider being “deferential” to the decisions of administrative tribunals on questions of law?

Rule of Law Precepts: A.V. Dicey, traditional model, sees courts as the champions of the rule of law; the bulwark against arbitrary state power; this approach reasons more or less as follows:

Citizens have the right to be and must be governed by law, rather than by arbitrary exercises of power

Government, like everyone else, must be subject to the ordinary law as applied by the ordinary courts (the constitutional role of courts is to apply law to government to ensure government acts lawfully)

Courts must therefore ensure that administrative tribunals, as part of government, act in accordance with law both procedurally and substantively [courts must ensure that administrative tribunals do not exceed the scope of the statutory authority the Legislature has granted them and thereby become laws unto themselves or sources of arbitrary power]

Courts are the best equipped institutions to decide the “correct” meaning of statutory grants of power to administrative agencies and they must perform that role vigilantly to ensure that tribunals do not exceed their statutory authority and act unlawfully

Functionalist Critique of the Rule of Law Approach

“Functionalism” focuses on making administrative systems work efficiently and effectively so as to achieve the purposes of the Legislature in creating them. Functionalists presume the Legislature deliberately chose administrative decision-making processes, rather than courts, because the legislators wanted to achieve certain things such as:

quicker process than courtscheaper process than courtsdifferent methodology and process than courtsbringing to bear in decision-making a different kind of specialized expertise than the (generalized) judicial expertise of courts

Functionalists argue that strict adherence to a rule of law model threatens to impede achievement of these goals, because it enables courts to intervene too often and too deeply in administrative d/making

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Functionalism challenges key assumptions about the nature of law and the role of courts that underpin the traditional rule of law model and advances opposing assumptions:

Statutory language is often indeterminate – there is very often not just one “correct” answer to statutory interpretation questions - different plausible interpretations are possible that call for policy choices and/or the exercise of discretion

Courts are not always the best equipped to decide the meaning of statutory language - sometimes administrative tribunals are better equipped to “breathe meaning” into statutory language because of the expertise they have – an expertise that is different than that of a court

Justice Learned Hand, after expressing some doubts about the expertise claims of administrative agencies:

However, there cannot be any doubt that acquaintance with the field does make one’s judgment better than that of the ordinary boob judge

Harry Arthurs (Canadian administrative and labour law scholar and former Dean of U of Toronto Law School) “Protection against Judicial Review (1983), 43 R. du B. 277 at 289, as cited by Wilson J. in National Corn Growers

There is no reason to believe that a judge who reads a particular regulatory statute once in his life, perhaps in worst case circumstances, can read it with greater fidelity to legislative purpose than an administrator who is sworn to uphold that purpose, who strives to do so daily and is well aware of the effect of his decision.

Legal sources of the court’s jurisdiction to engage in substantive review of administrative decision-makingThere are 2 basic sources of judicial jurisdiction to engage in substantive review of the decisions of an administrative tribunal:

Appellate review: this exists ONLY if a statute grants a right to appeal to a court from a decision of an administrative decision-maker “Judicial review” (non-appellate) under either:

the general supervisory jurisdiction of the superior courts in the provinces to control inferior tribunals or other bodies through the exercise of common law judicial review powers (i.e. an application for judicial review under the Judicial Review Procedure Act in B.C. or similar statutes in other provinces) orFederal Courts Act – if the decision-maker is a federal board, commission or tribunal (i.e. an application for judicial review under the Federal Courts Act)

AppealsAppeals exist only if a statute provides for such an appeal

Scope of grounds for an appeal depends on wording of the appeal provision (what does it encompass?)

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Remedies available on appeal may also be defined in the appeal provision but would normally include the power of the court to substitute its own decision for that of the administrative tribunal

Where an appeal provision allows for an appeal on the basis of “error of law” the starting assumption would traditionally be that the court is entitled to apply a “correctness standard in reviewing the tribunal’s decision – that is, the court would intervene in the decision and grant a remedy if the court thinks the decision of the tribunal on the question is “wrong”

BUT, nowadays, even where an appeal for “error of law” exists, an appeal court may decide that some degree of judicial deference should be accorded to the decisions of the administrative tribunal on certain kinds of questions of law

“Judicial deference” means that a standard of review other than “correctness” (a less exacting standard than “correctness”) may be adopted by the court in reviewing the tribunal’s decision in the appeal proceedings

Judicial Review

Judicial Review under the common law supervisory jurisdiction of superior courtsProvincial superior courts have power to exercise “judicial review” over inferior bodies (including administrative tribunals) to ensure they remain within the scope of the jurisdiction conferred on them by the Legislature This judicial review power is essentially a common law power, inherited from the courts of England, but it is now recognized to have a constitutional basis in s. 96 of the C.A. 1867 (per Crevier)

The fundamental basis for this form of judicial review has historically rested on the notion of “jurisdiction”: that is, a court may quash a decision if an admin tribunal makes a “jurisdictional error” – an error that is found by the court to “go to” the tribunal’s jurisdiction or one that causes the tribunal to “lose jurisdiction”

BUT for a variety of historical reasons, courts exercising inherent judicial review powers could also intervene in administrative decision-making and grant a remedy for an “error of law on the face of the record” regardless of whether or not that error was “jurisdictional” in nature

Judicial Review under Federal Courts Act

Federal Courts Act applies only to federal boards commissions or tribunals i.e. admin d/makers acting under federal statutory authority Federal Courts Act gives jurisdiction to either the Federal Court (FC) or to the Federal Court of Appeal (FCA) to conduct judicial review of all federal boards, commissions and tribunals (for the most part this jurisdiction is exclusive and ousts the superior courts of the provinces from engaging in JR of federal boards, commissions and tribunals) Within the Federal Courts system, original jurisdiction to entertain judicial review applications and grant judicial review remedies is divided between the FC and the FCA as set out in s. 28 of the Federal Court Act

s. 28 lists the tribunals for which an application for JR must be made directly to the FCA; all other applications go to the FC at first instance

Grounds for JR in the Federal Courts

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Grounds for an application for JR in the Federal Court (either the FC or the FCA) are set out in s. 18.1(4) of the Federal Courts Act (as paraphrased below)

… that the federal board, commission or tribunal …

(a) acted without or beyond jurisdiction or refused to exercise jurisdiction

(b) failed to observe natural justice or procedural fairness

(c) erred in law, whether or not the error appears on the face of the record

(d) based its decision on erroneous finding of fact made in perverse or capricious manner or w/o regard for the material before it

(e) acted by reason of fraud or perjury

(f) acted in any other way that is contrary to law

The JR remedies obtainable in the Federal Courts are set out in s. 18.1 (3) and include all the traditional remedies such as quashing, setting aside, declaring invalid, ordering tribunal to do any thing it should have done, remitting for further hearing with or w/o directions etc.

Privative Clauses – Legislative Purposes

Example of privative clause taken from CUPE v. New Brunswick Liquor:

101(1) Except as provided in this Act, every order, award, direction, decision, declaration, or ruling of the Board, the Arbitration Tribunal or an adjudicator is final and shall not be questioned or reviewed in any court.

101(2) No order shall be made or process entered, and no proceedings shall be taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board, the Arbitration Tribunal or an adjudicator in any of its or his proceedings.

Legislature wants to “keep courts out” because:wants quick resolutions to labour disputes (finality)wants cheaper process than courts (employers are typically better able to bear costs of litigation than employees/unions; Legislature wants to minimize the effects of that fiscal disparity by precluding recourse to court litigation to resolve disputes)wants labour relations expertise brought to bear in decision-making; courts did not have a “good track record” in labour matters

Privative Clauses: Technical Legal Effect Per Crevier (SCC) and s. 96 of CA 1867 the power of the superior courts to conduct judicial review of administrative decision-makers cannot constitutionally be ousted altogether – the courts must always retain a power to review tribunal decisions on the basis of jurisdictional errors

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In effect, a privative clause in a statute will thus be “read down” by the court so as to preserve the power of a superior court to review the decisions of admin tribunal for errors of jurisdictionTo put it another way, because of s. 96, the Legislature cannot exclude JR altogether – the most a privative clause can do is limit the scope of JR and confine it to jurisdictional errors only

Hence: where a privative clause exists, the court must find that the administrative decision-maker has made a jurisdictional error in order to be able to intervene and grant a remedy

HOWEVER, a privative clause will be effective to exclude judicial review on the basis of “error of law on the face of the record” IF the error that appears on the face of the record is not a jurisdictional error

I.e. a privative clause can operate to exclude judicial review of “non-jurisdictional” errors of law -- errors of law that do not “assume jurisdictional proportions” (sometimes referred to as “mere” errors of law)]

Jurisdictional Errors and Problems of Identification

Beetz J. in Bibeault:In its decision, a tribunal may have to decide various questions of law. Certain of these questions fall within the jurisdiction conferred on the tribunal; other questions, however, may concern the limits of its jurisdiction. .… a tribunal cannot by a misinterpretation of an enactment assume a power not given to it by the legislator.

Problem: how can we identify a “jurisdictional error”?

Historically, there has been great difficulty with this in relation to matters of statutory interpretationKey problem resides in the potential malleability or elasticity of the concept of “jurisdictional error” – it has proved difficult to find a legal test that will easily separate “jurisdictional questions” from those that are not!The “preliminary questions” doctrine mentioned in the text and in CUPE was developed and used for this purpose but proved to be difficult to apply and not satisfactory

As we will see, the preliminary questions approach was discredited and discarded by the SCC in it decisions in CUPE v. New Brunswick Liquor and Bibeault

Recent Jurisprudence: Towards A More “Unified” Approach To Determining the Standard of ReviewCUPE v. New Brunswick Liquor - landmark case marked a move towards according more judicial deference to the decisions of expert administrative tribunals

This process is well-explained by Wilson J. in National Corn Growers

Canadian courts have struggled over time to move away from the picture that Dicey painted toward a more sophisticated understanding of the role of administrative tribunals in the modern Canadian state.  Part of this process has involved a growing recognition on the part of courts that they may simply not be as

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well equipped as administrative tribunals or agencies to deal with issues which Parliament has chosen to regulate through bodies exercising delegated power, e.g., labour relations, telecommunications, financial markets and international economic relations.  Careful management of these sectors often requires the use of experts who have accumulated years of experience and a specialized understanding of the activities they supervise.

 Courts have also come to accept that they may not be as well qualified as a given agency to provide interpretations of that agency's constitutive statute that make sense given the broad policy context within which that agency must work.  Evans et al. point out, for example, that "[o]ne of the most important developments in contemporary public law in Canada has been a growing acceptance by the courts of the idea that statutory provisions often do not yield a single, uniquely correct interpretation, but can be ambiguous or silent on a particular question, or couched in language that obviously invites the exercise of discretion...”

CUPE v. New Brunswick Liquor decision adopted a SOR based on patent unreasonableness:

the S.C.C. held that the labour board’s decision at issue in that case should not be interfered with unless it was “patently unreasonable” – this was a highly deferential SOR applicable to a labour relations tribunal protected by a strong privative clause and dealing with an ambiguous provision that was clearly within the scope of the tribunal’s expertise

Wilson J. speaking of CUPE and a series of subsequent similar cases in National Corn Growers stated:

... there can be no doubt that this Court made clear that it was not prepared to interfere with a specialized tribunal's interpretation of its constitutive legislation where the interpretative exercise was one that was within the tribunal's area of expertise and where the impugned interpretation was not patently unreasonable

Following CUPE, there were some S.C.C. decisions that seemed to point back more towards a traditional “rule of law” approach to judicial review (e.g. Bibeault)

Overall, however, the dominant trend has been towards recognizing the need for judicial deference to administrative decisions in many contexts Focus of the case law has shifted to consideration of the means by which courts should determine what the standard of review (SOR) should be on any particular question or issue that an administrative tribunal had to determine (i.e. when should the court on judicial review apply a deferential standard rather than a “correctness” standard?)

This trend has also involved less overt focus on the concept of “jurisdictional errors” – the question has rather become simply what should the SOR be in a particular context, taking into account various factors

Courts came to consider a number of factors that were said to indicate the “legislative intent” as to whether or not court should adopt a deferential approach in judicial review

Prior to Dunsmuir, the Supreme Court’s approach to determining the SOR came to be known as the “pragmatic and functional approach” as exemplified in the

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Pushpanathan (S.C.C. 1998) decision and three possible standards of review were recognized:

correctness, reasonableness simpliciter, patent unreasonableness

In Dunsmuir (2007), the SCC reduced the possible standards of review to two, correctness and reasonableness and also made changes regarding how the standard of review should be determined

Court’s current approach is also more “unified” in that the same framework for analysis is applied to determine the SOR regardless of whether the source of the court’s jurisdiction is an appeal provision, or “common law” judicial review powers, or judicial review under the Federal Courts Act

Problems of Identifying “Jurisdictional Error”In some cases, statute is clear that courts should not interfere with decision of administrative tribunal i.e. a privative / preclusive clause. However, from Crevier v. Quebec (1981) (S.C.C.):

Privative clauses can deny JR of mere errors of law i.e. errors of law on the face of the recordConstitution 1867 s. 96 provides the constitutional grounds for JR power in superior courts. A legislature cannot constitutionally exclude JR of administrative tribunals completely, in particular court will always maintain review over “jurisdictional” errors i.e. “errors not on the face of the record” (thus courts will read down privative clauses that purport to remove this).Question that remains is: what is included in “jurisdiction” and what standard of review should be used.Beware: “jurisdiction” is used in two different senses

It can mean what a tribunal is authorized to hear (i.e. the provisions than confer or limit it’s “jurisdiction”)In the broader sense it means reviewable errors when there is a privative clause (e.g. in this second sense, the Bibeault case could be described as “jurisdiction 2” = errors in “jurisdiction 1” and patently unreasonable errors outside “jurisdiction 1”)

Prior to CUPE :JR was looking for jurisdictional errors (which are a type of error of law):

Any failure to accord natural justice or comply with PF (correctness standard used)Abuse of discretionCertain kinds of errors of law regarding statutory interpretation

Preliminary Questions Doctrine (rejected) “Preliminary questions doctrine” (no longer good law – doctrine rejected in CUPE

and Bibeault)Distinction made between:

Questions of law that were squarely within the core of decision making authority of the tribunal (i.e. it’s “jurisdiction”) which were unreviewable with a privative clause Essentially immune from judicial review

Questions that were preliminary / collateral i.e. preconditions to the valid exercise of the core power of the tribunal, and so must be answered correctly or the tribunal would lose its jurisdiction over the next step (thus reviewable on a correctness standard even with a privative clause).

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They had “exceeded their jurisdiction”

Doctrine problematic (see CUPE and Bibeault) since:No workable test: No accepted / coherent test to determine what was in the core area and what was preliminary and depended on interpretation of the enabling legislation, hence arbitrary Maybe legislature intended even preliminary questions to be given final answers by tribunalVery malleable : Any question of statutory interpretation was theoretically capable of being called preliminary to the board’s ultimate decision, so courts could set aside a decision whenever they disagreed with it i.e. allows JR to become disguised appealToo formalistic: Focusing on whether or not something was a preliminary question distracted attention from the substantive issues at stake in determining a standard of review (such as weighing institutional strengths of the tribunal against the court, taking public interests into account, etc.)

CUPE v. New Brunswick Liquor Corp (1979) (SCC) Significance: seen as a landmark in administrative law

Began the court’s journey towards exercising more restraint (judicial deference) in reviewing at least some of the decisions of administrative tribunalsEstablished for the first time the patent unreasonableness standard of review

Facts:

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Prior to CUPE:Preliminary QuestionsDoctrine

Within smallish core, unreviewable if there is a strong privative clause

Preliminary / collateral questions of “jurisdiction”, reviewable for correctness

CUPE decision

Within larger core (more deference), reviewable on patently unreasonable standard

Narrow set of initial jurisdiction questions, reviewable for correctness

With privative clause

Bibeault decision Category 1: within broad

legislative mandate (core jurisdiction) apply patently unreasonable standard (less deference than CUPE)Category 2: with questions of law that confer or limit the jurisdiction of the tribunal, apply correctness standard

To determine legislative intent, use pragmatic and functional approach to decide which of these two categories any given question falls within

During strike, New Brunswick Liquor Commission used management to do work that was normally done by employees. CUPE argued that it was in contravention of Public Service Labour Relations Act:

s. 101 -- a strong privative clause [see para 14 of the decision]

s. 1 “employee” …excludes [managers and a number of other persons]

s. 102(3) [where employees are on a lawful strike] ... during the ... strike(a) the employer shall not replace the striking employees or fill their positions with any other employee(b) no employee shall picket, parade or in any manner demonstrate in or near any place of business of the employer.

Thus a statutory interpretation question for Labour Relations Board to decide. Union argues employer can’t use anyone for replace strikers, whereas employer argues managers are exempt due to s.1. Board interprets it to mean can’t use anyone (i.e. goes with union interpretation), based on balancing of rights between employer and employee (and strikers had very limited areas where they could picket).

Issue: during a lawful strike, the employer used managers to do the work of striking employees -- does that violate s. 102(3) (a)?

Claims:

EMPLOYER argues NO – in s. 102(3)(a), the phrase “with any other employee” modifies BOTH the preceding verb phrases – that is, read properly, s. 102(3)(a) says

“employer shall not replace the striking employees [with any other employee] or fill their positions with any other employee

AND, since managers are not within the statute’s definition of “employees” the section has not been breached b/c the employer has not replaced the striking employees with any other “employees”

It has replaced them with “managers” who are not “employees” within the meaning of the Act; this is not caught by the section – so no violation (also argued only purpose of s.102(3)(a) is to ensure that the jobs remained available for the striking employees to come back to after the strike was over)

UNION (CUPE) argues YES: the phrase “with any other employee” qualifies only the second verb phrase – the obligation not to “fill their positions”;

the phrase “with any other employee” does NOT qualify the obligation not to “replace” the striking workers during the duration of the strike

The obligation not to “fill their positions with any other employee” related to permanently filling the positions; the obligation not to replace with any person was a blanket prohibition on using any person as a replacement worker during the strike

That is, CUPE argues should read the provision as if it said: “the employer shall not replace the striking employees [with any person] or fill their position with any other employee” AND since managers are “persons”, and they have been “replacing” the striking employees by doing the work of the striking employees during the strike, there has been a breach of the provision

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PSLRB essentially agreed with the union: said that s. 102(3)(a) is intended to prohibit “strike-breaking” by the employer during the strike as a trade-off for the statute’s ban on picketing by the union during a strike as found in 102(3)(b) [a quid pro quo operating in the special world of public service labour relations] see para 7

Despite strong privative clause, employer seeks judicial review of LRB decision

NB Court of Appeal: uses the preliminary questions doctrine Says the proper interpretation of the section in question is a “preliminary question” which has to be answered correctly or otherwise there will be a jurisdictional errorCA holds that PS LRB interpretation is “wrong” (incorrect) and therefore the PSLRB made a jurisdictional error – grants the application for JR and quashes the PSLRB decision

But much difference of opinion among the CA judges as to what s. 102(3)(a) means - “Bristles with ambiguities”

SCC reversed this decision and restored the decision of the PSLRB

Held (Dickson J.): Rejects the preliminary questions doctrine:

Key reasons: it’s easy to subdivide a matter before any tribunal into a series of questions and characterize questions of fact as being “the primary / central questions for decision” (and thus within the board’s jurisdiction) and characterizing questions of statutory interpretation as being preliminary / collateral (and thus outside the board's jurisdiction).

Should look at jurisdiction only at the outset of the inquiry (and requires correctness):

Narrow set of initial jurisdictional questions :Does the tribunal have jurisdiction over the parties?Over the subject matter?Is it constitutional?

Once you get beyond these questions, the matter is clearly in the scope of the agency.Here, the statutory interpretation question is clearly within the scope of the Board.

SOR = correctness

Privative clause is a clear signal that the Legislature wanted the PSLRB’s decisions that are made within its jurisdiction to be shielded from JR on a “correctness” standard

PSLRB should have the right to be wrong (i.e. incorrect in the eyes of the court) on matters that are within the scope of the jurisdiction the legislature assigned to them) Privative clause is a clear indication that there should be a limited judicial review of things within tribunals expertise

Referred to the need for courts to respect the “specialized jurisdiction” of the PSLRB and finds that the interpretation question at issue lies within the heart of that specialized jurisdiction

I.e. this decision lies at the core of the tribunals core specialized area of jurisdiction – should not be reviewed on the correctness standardFunctionalism idea – deference to the expertise of the tribunal

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BUT held that matters that lie within core the jurisdiction of the PSLRB are not entirely immune from all review – they are subject to review on a patent unreasonableness standard

If the LRB decision on a matter within its jurisdiction to decide is PU, that will be a jurisdictional error and the court will quash the decision (a “rationality” test applies)

SOR = patent unreasonableness Highly deferential to the tribunal; court should exercise high degree of judicial restraint

What constitutes a patently unreasonable decision? Cites Nipawin: “...acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into account, breaching the provisions of natural justice or misinterpreting the provisions of the Act so as to embark on an inquiry or answer a question not remitted to it.” Put another way, 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?

Standard of rationality rather than correctness

SCC applied the PU standard of review to the PSLRB decision at issue and holds that this decision is not PU (reverses C.A., tribunal’s interpretation stands, so union wins):

Here, it is a very ambiguous provision (the statute is badly drafted, with at least 4 legitimate interpretations).Thus it is important to interpret it in its statutory and policy context, and the Board is the most capable / expert body of determining that context, at least as capable of interpreting the statute as are the courts (i.e. a functional / relative expertise approach).Thus show some deference, and only interfere if “the Board here so misinterpret the provisions of the Act as to embark on an inquiry or answer a question not remitted to it? Put another way, 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?”Here, their interpretation was not patently unreasonable (it was at least as reasonable as the others) so should not overturn it.

Comment: the question of how big the “core jurisdiction” is remains in issue and is shrunk by the court in Bibeault

Union des employes de service v. Bibeault (1988) (S.C.C.)Significance: Came up with the pragmatic and functional approach

Often criticized for its conservative approach

Facts:The Quebec Labour Code concerned union and employer relations. It had provisions for successorship to preserve the bargaining rights of unions when a company A is bought out (“alienated”) by another company B (i.e. company B also gets all the collective agreement provisions and rights from company A, which the union had maybe fought for over many years through strikes, etc). Labour Code said that successorship would apply when all of company had been alienated. School board has contract with company A (which is unionized) for cleaning schools. School board terminates that contract, and enters into new contract with company B.

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There is no relationship between A and B, but the question is whether this transaction triggers successorship (if so the collective agreement with A transfers to B).The Labour Commission (Bibeault was the commissioner) decides whether there is successorship or not (i.e. a statutory interpretation question). They find yes, and their decision is appealed to another administrative body, the “Labour Court” which upholds the decision.There is a privative clause that expressly restricts JR to jurisdictional questionsJR goes to Quebec Superior Court and C.A. which both use the older preliminary questions doctrine, they find that it is a reviewable preliminary jurisdictional question (thus correctness standard), and that the tribunals got it wrong.

S.C.C. decision (Beetz J.): determines the standard of review when there is a privative clause:

Rejects preliminary questions doctrine againKey problem: diverts the courts from what they should be focusing on: the intention of the legislature

Where there is a strong privative clause, on an application for judicial review, a court will be able to intervene and give a remedy only where there is a “jurisdictional error” (per Crevier)

Identified two kinds of questions of law (i.e. questions of statutory interpretation) that a tribunal may be called upon to decide in the course of its decision-making and two kinds of possible “jurisdictional errors” in this regard

Category 1 – standard of review is PU: a PU decision = a jurisdictional error Questions of law that fall within the core jurisdiction of the tribunal are within

the tribunal’s jurisdiction in the strict sense (stricto sensu)the tribunal will commit a jurisdictional error only if its decision on such a question is “patently unreasonable” (i.e. merely being “wrong” in the eyes of the court on such a question does not constitute a jurisdictional error) I.e. SOR is “patent unreasonableness

Category 2 – standard of review is correctness: an incorrect decision = a jurisdictional error

Interpretation of legislative provisions that “limit” or “confer” jurisdiction are NOT within the tribunal’s jurisdiction in the strict sense (strict sensu)

the tribunal may of course interpret such provisions in the course of its decision-making, but its interpretations must be “correct” or there will be a jurisdictional error (i.e. merely being wrong on such a question will constitute a jurisdictional error) I.e. SOR is “correctness”

Note: These categories are similar to the regime under Dickson J. in CUPE, but the core jurisdiction is narrower

Problem: how to identify into which category a particular question of statutory interpretation falls?

Beetz J. says: use a “pragmatic and functional” approach (P & F) Underlying purpose of the P & F approach in this context is to determine the legislator’s intention: did the legislator intend that interpretation of the provision in question be a matter within the tribunal’s jurisdiction in the strict sense or not?

If so, the tribunal’s decision will be conclusive and final, subject only to JR for patent unreasonableness;

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If not, the tribunal’s decision will be reviewable by the court on a correctness standard

Note: Pragmatic and functional approach now called the standard of review analysis

To determine if category 1 or category 2, use the P & F approach (four steps):

1) the wording of the enactment that confers jurisdiction on the tribunal2) the purpose of the statute that creates the tribunal and the reason for the tribunal’s existence

Is there something in the purpose or function that suggests courts should exercise deference or not?

3) the area of expertise of the tribunal membersBecomes increasingly important – one of the most heavily weighed factorsDoes the question call upon the special expertise of the tribunal?

If not, less reason to be deferential4) the nature of the problem before the tribunal

Is it a question of law? Fact? Mixed law and fact?Pure questions of law (especially general questions of law) = suggest little deferenceQuestion of fact = suggest more deference

Held: In this case, concludes that the interpretation of what is successorship is the type of provision that should be viewed as setting / limiting jurisdiction i.e. category 2 (so the correctness standard should be used) because:

Provision is worded objectively (i.e. it doesn’t say “if in the opinion of the commission, …”) and so is not discretionary / not policy-making and so more likely be category 2 so correctness standard). Commissioner simply decides whether criteria are met.Finds that “alienation” is a term of art in the Quebec civil law and so calls for legal expertise. The more something is a general question of law (e.g. of common law, constitutional, etc.) the more likely it will be category 2 and correctness standard will apply, since there will be little connection with the expertise of the tribunal, and so Courts are best suited to such questions.Tribunal (Commissioner) only had a narrow role to play here i.e. Labour Board simply decided whether the criteria were satisfied or not (as opposed to a broader role in regulating an entire industry for example) suggesting category 2 and hence correctness standard.

Comments: This decision was criticized as being too conservative Since then, cases have moved off in a different direction – finding ways and reasons to be deferential in a number of cases

Category 2 questions appear similar to the old preliminary questions doctrine.The pragmatic and functional approach is very malleable (so lots of discretionary room for courts to intervene and JR remains very unpredictable, although)This case indicates that court might not show as much deference as was thought from CUPE – where a question will confer or limit the jurisdiction of tribunal, it must be answered correctly.

Pezim v. British Columbia (1994) (S.C.C.)Facts:

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Pezim was an issuer of securities / stocks for a mining property. Act included investor protection provisions s. 67 required issuer of stocks to make public disclosure of any “material change”, defined as anything that could reasonably be expected to have a change on the value of the asset. Pezim received assay results from the mining property but did not disclose them. Question was whether this was a “material change”.

“material change” is defined in the statute to mean a change in the business, operations, assets or ownership of an issuer that could reasonably be expected to have a significant effect on the market price or value of any securities of the issuer

Issue: did this kind of information fall within s. 67 as a “material change” so that it had to be disclosed “as soon as practicable”?

BC Securities CommissionSecurities Commission said YES and said there had not been proper disclosure: s. 67 had been breachedCommission imposed a penalty - suspended Pezim from trading of 1 year and ordered him to pay 2/3 of the cost incurred by the Commission in hearing and deciding the case

BCCA:Pezim appeals to the BCCA under a broad appeal provision (appeal on any question of law to BCCA)BCCA applied a correctness standard of review and found the Commissions interpretation of whether this kind of information was capable of constituting a “material change” was incorrect

Issue: What is the proper approach to determining the standard of review? What is the proper standard of review in this case?

S.C.C. decision: Even though this is an appeal, and the matter turns on a question of statutory interpretation

Court should use the Pragmatic and Functional approach to determine the proper SOR application of P& F approach leads to the conclusion that the SOR in this case is “considerable deference” There is a spectrum of standards:

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CorrectnessNo/low deferenceRemedy if court thinks tribunal was simply “wrong”Use if:There is an appeal power and question is one where tribunal has no greater expertise than court, orInterpretation of provision that limits the jurisdiction of the tribunal (from Bibeault)

Standard of review on JR or appealReasonableness Simpliciter (Southam)“Considerable deference”Remedy if court thinks tribunal was “clearly wrong” i.e. not only wrong but unreasonably soUse as a middle ground when neither extreme is appropriate

Patently unreasonableHighest deferenceRemedy if court thinks tribunal was “totally wrong” / irrationalUse if:Privative clause, andMatter falls within specialized expertise of tribunal, andThere is no right of appeal (of course not, there’s a privative clause)

Notes that deference is an issue by issue, question by question analysis – will not lead to deference in every case

Bell Canada: “Even where there is no privative clause and where there is a statutory right of appeal, the concept of the specialization of duties requires that deference be shown to decisions of specialized tribunals on matters which fall squarely within the tribunal's expertise.” Bradco: “On the other side of the coin, a lack of relative expertise on the part of the tribunal vis-à-vis the particular issue before it as compared with the reviewing court is a ground for a refusal of deference.”

Determining standard of review:To determine standard that should be used in this case, court effectively used the pragmatic and functional approach (from Bibeault, which was JR with a privative clause, and have brought the idea into the appeal realm here). Here:

From wording of statute, purpose is to protect public in economic realm, as with leniency given in Brosseau and Irvine i.e. economic regulation apparently more for tribunals and less for courts (suggests deference)Tribunal is highly specialized – financial securities regulation (suggests deference)Question in issue here calls on their expertise (suggests deference)

Terms in the Security Act must be defined within their statutory context not simply general questions of lawDefinition here is particular to securities regulation – must be determined within the context of securities regulation

Tribunal has broad powers, and not just a narrow court-like adjudicative role (suggests deference)Legislature gave tribunal broad policy-making ability (suggests deference)

Bradco: As distinction can be … ad hoc basis … particular dispute… overseeing ongoing interpretation … policy and precedentField expertise: look at the nature of the tribunal, who is on it, what is their expertise, how are they appointed, etc.

Nature of the question at issue Is it within the special expertise of the tribunal or not?

Here, question lies clearly within the realm of economic regulation – squarely within the expertise of the tribunal

However, there is a statutory appeal provision and no privative clause and this is a question of law (suggests correctness)

Even though court has full jurisdiction to exercise JR, they defer to the expertise of the tribunal

Result: Thus adopts the middle ground of “considerable deference” (later called reasonableness simpliciter in Southam). Thus B.C.C.A. applied the wrong standard of review, and commission decision should stand.

Southam, Canada v. (1997) (S.C.C.)Facts:

Southam owned two daily newspapers in Vancouver, then bought up 13 smaller community papers, The Real Estate Weekly, 3 printing services, and 2 distribution centres, all in the lower mainland.Under the Competition Act (which regulates economic matters for the public interest, such as by keeping prices low through competition) s.92 prevents “mergers” that are “likely to prevent or lessen competition substantially”.

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The Competition Tribunal composition was specified by the statute as follows:Up to 4 members are FCTD judges (acting here in an administrative role), up to 8 are lay members (i.e. consumers, business, economist, etc).Every panel must have at least 1 judge and at least 1 lay (with judge as chair)Questions of law are to be determined only by judicial members on panelOther questions (fact and mixed law & fact) to be determined by all members of panel

For Southam, there were possible violations of s.92 in two markets:The retail print advertisement market in lower mainlandThe real estate print advertisement market in lower mainland

Tribunal DecisionThe test the Tribunal adopts to determine the scope of the relevant market is whether or not the dailies and the community newspapers are “close substitutes” for each other for those who want to place ads for either retail businesses or real estate so that the prospective advertisers would easily switch from one product to the other in response to price changes in the cost of placing ads - this is referred to as cross-elasticity of demand

Tribunal held 40 days of hearings and issued a 150 page decision that includes a painstaking review of the evidence; it holds:

the concentration is not likely to lessen competition substantially in the retail print advertising market because the dailies serve different markets than the community newspapers so there is no cross-elasticity of demand here

Dailies – serve big companies advertising throughout the Lower MainlandCommunity Papers – serve small advertisers who want to reach a localized market

BUT Tribunal further holds that the concentration is likely to lessen competition substantially in the real estate ad market in the North Shore area [dailies and community papers do serve the same market re real estate ads] and gave a remedy for this

Southam ordered to divest itself one of its interests

The Act included a broad appeal provision for questions of law or fact to FCA (an so no privative clause).

The Director of Investigations and Research appealed, thinking Southam had violated s.92 in both markets.

FCA:FCA held that tribunal used the correct legal test but misapplied it to the facts, since had not considered all the evidence. Because of the right to appeal, used the correctness standard, and so overruled tribunals decision, saying violation in both markets.

Matter is further appealed to the SCC

S.C.C. decision (Iacobucci J.): held FCA applied wrong standard of review, should have been reasonableness simpliciter (a renaming of “considerable deference” from Pezim), and found tribunal’s decision was not unreasonable, so tribunal decision should stand.

even though there is an appeal provision, a pragmatic and functional approach should be used to decide if the court should exercise deference in reviewing the decision of this expert Tribunal

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the question at issue is one of “mixed fact and law” (Justice Iacobbci gives guidance about how to distinguish questions of law and questions of mixed law and facts)the SOR should be “reasonableness simpliciter” (the rationale for this standard and its meaning is explained by Justice Iacobucci)applying that standard, the Court held that it could not say that the Tribunal’s decision was unreasonable and therefore it should stand

Applied pragmatic and functional approachAlthough doesn’t refer to it, clearly applies the pragmatic and functional approach to determine when deference is appropriate. Thus balances 4 factors (none of which are determinative on their own)

Nature of the problem and questions in issue :Usually, a general question of law suggests a correctness standard (e.g. Bibeault) whereas a question of fact or mixed law and fact suggests deferenceIt is especially important in this case due to the composition of the tribunal and the way the statute specifies that questions of law are only to be determined by the judges on the panel (who would have little extra expertise than judges here on S.C.C.).The three types of questions are: Questions of law: e.g. what is the correct legal test (e.g. what is

negligence). Would include questions of statutory interpretation, including questions that confer or limit jurisdiction of tribunal (from Bibeault).

Questions of fact: what happened, when, where (e.g. what did defendant do) Questions of mixed law and fact: how does law apply to set of facts (e.g.

did defendant satisfy the standard of care)In cases where it is difficult to determine which it is, look at what precedent the question will set: Will decision have broad general application in future cases –

precedent setting? If so, that suggests it’s a question of law (e.g. in Pezim the meaning of “material change” was being determined, which would apply to many other cases, thus question of law) = less deference

If more specific to the particular case, more likely a question of mixed fact and law = more deference

There are two ways to make an error of law: Get the legal test wrong Fail to consider one aspect of that legal testHere, the tribunal got the test right (same market / cross elasticity) and didn’t miss any aspects of it, so did not err in law. Thus if there is any error it must be one of mixed law and fact (suggests deference).

Wording of statute :Here there is a broad appeal provision, no privative clause (suggests correctness)

Purpose of statute :Purpose is more economic than legal (regulation of market in the public interest), and business people and economists understand such things and their consequences better than a judge (suggests deference)

Expertise of tribunal for specific question in issue (most important factor):Note it is not just general expertise that is important here, but specific expertise related to the question in issue.Here significant economic / commercial expertise required (suggests deference)However, there are judges on the panel suggesting it may not have any more expertise than a court (suggests correctness). However, statute allocated

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decisions so that the question in issue here (mixed law & fact) is answered by the whole panel, and not just the judges (suggests deference, although likely different standard of review if it was a question of pure law).Also “field expertise” = expertise developed over time on the tribunal (so even the judges on the tribunal would gain higher expertise than normal judges)

Balancing these (with mix of some factors suggesting correctness and other deference) appropriate standard here is reasonableness simpliciter

More reasons to exercise deference than not

Distinction between reasonableness simpliciter and patently unreasonableWhat is difference between reasonableness simpliciter and patently unreasonable tests (no distinct line between these, just deciding how much deference to give):

If decision is obviously wrong without need for any probing, clearly irrational (CUPE), then fails patently unreasonableness test

If decision stands up to some probing / searching examination, only “clearly wrong”, “unreasonable”, then fails reasonableness simpliciter

“The difference between “unreasonable” and “patently unreasonable” lies in the immediacy or obviousness of the defect. 

If the defect is apparent on the face of the tribunal’s reasons, then the tribunal’s decision is patently unreasonable.  But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable.”

ApplicationAlthough Iacobucci finds the tribunal decision to be unusual / difficult to accept, it is not unreasonable and so should stand.

If he were deciding the case, de novo, might have come to a different conclusion than the tribunal. Nonetheless, tribunal decision not unreasonable

Ends up warning judges that shouldn’t overturn a tribunal’s decision just because judge would have come up with different result, restraint is needed when deference is appropriate to get a “cohesive, sensible, rational approach to JR”.

Comment: Courts may often hold that there was no “reviewable error” = kind of error that the court will take as an error that allows them to intervene and grant a remedy

Pushpanathan v Canada (Min of Citizenship & Immigration) (1998) (S.C.C.)Significance: SCC used it as an opportunity to restate the pragmatic and functional approach

Courts often assume themselves to be the leading experts on human rights – court typically do not exercise deference on human rights issues.

People sitting on the Refugee Division – do they have expertise of the UN ConventionIssue here clearly a question of law that will have far reaching effect

Facts:Pushpanathan first claimed refugee status, then got permanent resident status through other means. Later convicted of serious narcotics trafficking, 8 years in prison. Then re-activated refugee claim (likely due to concern about being deported because of conviction, which refugee status would not allow).Article 1(f)(c) of UN Convention denies refugee status to persons found guilty of something “contrary to principles and purposes of the UN”. Refugee Division (of

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Immigration and Refugee Board) interprets this and decides Pushpanathan cannot be a refugee as a result.

Relevant Provisions of the Immigration Act regarding Judicial Review Applications:

Concerning JR, the Act had a number of clauses (there is no appeal clause per se):NO appeal provision from RDD to courts.67: Refugee Division has sole and exclusive jurisdiction to decide all questions of law and fact, including questions of jurisdiction (weak privative clause)s.82(1): limits access to judicial review – can only be made to FCTD with leave [potentially limits judicial involvement]

Recall under Federal Court Act s.18(4) can usually seek JR for errors of law without any qualification) – but this does not determine the standard of review (separate from grounds for review)

s.83(1): can’t appeal from FCTD to FCA unless FCTD certifies there is a serious question of general importance at issue

Issue: was it an error of law for the Refugee Division to interpret the Convention to exclude from refugee status under Article 1(f)(c) an individual guilty of a serious narcotics offence committed in Canada?

FCTD: dismissed the application for JR (let the RDD decision stand) but the FCTD also certified that the case involved a “serious question of general importance” thus enabling an appeal to the FCA;

The question certified was:

is it an error of law for the Refugee Division to interpret Art. 1 F (c) of the Convention to exclude from refugee status an individual guilty of a serious narcotics offence committed in Canada?

FCA on appeal from the FCTD held that the answer was “NO” and dismissed P’s appeal

Note: neither the FCTD nor the FCA dealt with the question of what was the proper standard of review to apply to RDD’s decision]

SCC Majority per Bastarache J. heldSCC finds fault with FCTD and FCA because they did not explicitly state what standard of review they used to come to their decision.Thus a court should always first state it’s standard of review:

Correctness – no deferenceReasonableness simpliciter – originated in Pezim (called “considerable deference”) then renamed in SouthamPatent unreasonableness – originated in CUPE – highest deference

Must use Pragmatic and Functional approach to determine the standard of review [Bastarache J. restates/discusses P&F approach]

Proper standard of review for the question at issue (which was held to be a pure question of law) is “correctness”

Result: RDD decision was incorrect and was set aside – matter was remitted to RDD for further process in accordance with the SCC’s decision

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[2 judges dissented; they agreed that the proper standard of review was “correctness” but found the RDD’s decision was “correct”]

PUSHPANATHAN’s Restatement of Pragmatic and Functional Approach

Purpose of the P & F approach (the underlying inquiry): to determine the legislative intention as to whether the question at issue was intended to be left to the exclusive decision of the admin decision-maker

If YES then a deferential approach should be adoptedIf NO then no deference applies

Not “should we defer to the tribunal” but is this a question that should be deferred to the tribunal?

4 categories of factors to be taken into account – (none are determinative)

(i) privative clause [or an appeal provision]

(ii) expertise [relative expertise on the specific question at issue]

(iii) purpose of the Act as a whole and of the provision in particular [the polycentricity principle]

(iv) nature of the problem: question of law or fact? [or mixed law/fact]

To determine legislature’s intent, use pragmatic and functional approach (originated in Bibeault for JR, extended in Pezim and Southam to appeals).

Look at and balance the following 4 factors, none of which are determinative on their own:

Privative / appeal clauses and how strong are they (i.e. look at wording of statute):Privative clause:

Privative clause suggests more deference, absence of privative clause suggests less deference.In absence of other factors a full privative clause can strongly support highest deference (i.e. patent unreasonableness). Full privative clause = provision that says tribunal decisions are final and

conclusive, and courts have no review powers (although the last bit could maybe be left out) (e.g. privative clause in CUPE)

A lesser privative clause still suggests deference, just less stronglyAppeal clause:

Appeal clause suggests less deference, absence suggests more deferenceEven with appeal clause, can still have some deference (first mentioned in Bell Canada, see also Pezim, Southam)

Other clauses:Even though not obviously privative or appeal clauses, other clauses may be helpful. E.g. here in Pushpanathan, wording “serious questions of general importance” when limiting appeals from FCTD to FCA suggests legislature thinks such questions should be decided by court, hence suggests correctness standard on such questions.

Expertise of tribunal (relative to court) for specific question in issue (most important factor):

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A tribunal with general expertise will not always be better than court, so must ask if the specific question in issue falls squarely within the tribunal’s expertise. Thus the same tribunal may be reviewed on different standards for different questions.Look at composition of tribunal:

E.g. in Southam panel judges decided questions of law suggesting less deference for those questions. However, in Superior Propane with same composition didn’t mention this, so perhaps implies can be some deference for judges on panel due to “field expertise” i.e. become expert in that area of law, and can be advised / pick up expertise from other non-judge panel members).Mattel Canada: does statute require expertise (or members to be appointed by others with expertise), rather than looking at particular members (e.g. statute may not require expertise so less deference, even though people sitting happen to be expert)

Look at qualifications / experience required to be a memberConsider “field expertise” (e.g. see Southam)

Mattel Canada: look at statutory structure of, for example, length of appointments, rather than at particular members (e.g. statute may give long appointments suggesting more deference, even though actual members appointed yesterday).

Mattel Canada: consider special procedures of tribunal e.g. can it bring in expertise not available to court.Mattel Canada: consider role in policy development e.g. Cabinet asks tribunal to do research for them, hence Cabinet thinks tribunal expertMattel Canada: Courts are more expert (suggesting correctness standard) than tribunals for common law, constitutional law (such as discrimination matters, as in Trinity Western University), Civil law in Quebec (Bibeault), human rights (Pushpanathan)

E.g. unthinkable to have non-lawyers deciding interpretation of general human rights issues (Pushpanathan)Mattel Canada: Court generally more expert on statutory interpretation, although tribunal more expert on interpreting it’s own enabling statute and possibly other legislation they routinely interpret.Ivanhoe: tribunal field expertise possible on something normally thought of as common / Civil law but that may have special meaning in the legislative context.

Purpose/scheme of particular provision and Act as whole, including reasons/scheme for creating tribunal:

Thus more deference suggested if tribunal deals with:Vague, open-ended principles / provisions: Is there discretion /ambiguous provision / tribunal intended to infuse

with policy and their expertise (e.g. CUPE, Ivanhoe) suggests more deference.

In contrast, less deference if provision worded objectively (e.g. see Bibeault)

Has to balance multiple interests: Courts are expert at bipolar dispute resolution (i.e. adjudication

between 2 parties and deciding individual rights, although in reality there are often many other interests behind the scenes) as opposed to polycentricity

Broadly manages / regulates a sector of activity / broad scope / powers (e.g. Pezim):

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If tribunal only has narrow role to play (e.g. just adjudicative) suggests less deference (e.g. see Bibeault).

Policy-making role (e.g. see CUPE and Pezim).More economic than legal issues (e.g. Pezim, Southam, Superior Propane, and more broadly see Brosseau, Irvine).Acts in the public interest E.g. investment protection for the public in Pezim. E.g. Ivanhoe: more deference for labour arbitration / relations

tribunals because purpose is to create labour peace (and courts have had historical bad reputation with labour) and special tripartite composition cannot be replicated in court. Note court may still interfere with such tribunals e.g. in Toronto Board of Education where error of fact due to no evidence to support finding

Nature of problem at issue (law, fact, or mixed law & fact) :From Southam:

The three types of questions are: Questions of law: e.g. what is the correct legal test (e.g. what is negligence).

Would include questions of statutory interpretation, including questions that confer or limit jurisdiction of tribunal (from Bibeault).

Questions of fact: what happened, when, where (e.g. what did defendant do) Questions of mixed law and fact: how does law apply to set of facts (e.g.

did defendant satisfy the standard of care)In cases where it is difficult to determine which it is, look at what precedent the question will set i.e. ask will decision have broad general application in future cases. If so, that suggests it’s a question of law (e.g. in Pezim the meaning of “material change” was being determined, which would apply to many other cases, thus question of law).Usually, a pure question of law with high degree of generality suggests a correctness standard (e.g. Bibeault, Superior Propane, although not determinative

E.g. Pezim still gave deference on pure question of law). There are two ways to make an error on a question of law: Get the legal test wrong Fail to consider one aspect of that legal test

A question of fact or mixed law and fact suggests deferenceAlso consider expertise

The more closely linked the expertise of the panel is to the application of the statute, the more deference that will be givenConversely, where the panel has to interpret a statute outside of their main area of expertise, less deference will be given

Applying these factors in this case:Privative / appeal clause:

No strong privative clause (suggests correctness), but limitations to judicial review in ss.67, 82, 83 (suggests deference)The fact that the legislature used in s.83 the wording “serious questions of general importance” when limiting appeals from FCTD to FCA suggests they think such questions should be decided by court, virtually an appeal provision (suggests correctness)

Expertise relative to courtsTalking about rights entitlement, human rights in a general, and UN principles here, and courts are reluctant to show deference on such matters, considering judges

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expertise better than even HR commissions. Expertise of the Refugee Division does not extend to these general questions, but is instead limited to assessment of refugee status based on personal factors, risks of persecution in home country, etc. (suggests correctness).Looks at the composition of the refugee division – has minimal number of lawyers, and (which is normally OK for factual questions) but unthinkable to have non-lawyers deciding interpretation of general human rights issues subject only to deferential review (suggests correctness).Further, merely by sitting on the tribunal, members do not gain specific expertise on these general questions i.e. no relevant “field expertise” here (suggests correctness).

Purpose of the Act as a whole and provision in question:Tribunal is not regulating broadly an activity sector, not involved in policy development or interest balancing, not polycentric – rather determining rights on a case by case basis (suggests correctness).

Nature of the Problem:A serious question of general importance with precedent value in human rights law (suggest correctness).

State of jurisdictional questions after Pushpanathan “But it should be understood that a question which “goes to jurisdiction” is simply descriptive of a provision for which the proper standard of review is correctness, based upon the outcome of the pragmatic and functional analysis.  In other words, “jurisdictional error” is simply an error on an issue with respect to which, according to the outcome of the pragmatic and functional analysis, the tribunal must make a correct interpretation and to which no deference will be shown.”

That is:Outer ring: Questions that after the P+F approach, there are grounds to be subject to correctness standard of review (these are “jurisdictional questions” or questions that “go to jurisdiction”)Core: Questions that must be reviewed on a deferential standard of review

Comment: Some lower courts have talked of other points along the spectrum e.g. correctness with a little deferenceNote that because of balancing factors (which may point in different directions) pragmatic and functional approach fairly malleable & unpredictable.Although correctness / reasonable simpliciter / patently unreasonable lie on a spectrum, the full spectrum will not always apply

When there is a strong privative clause will likely only get correctness or patently unreasonable appliedWhen there is an appeal clause will likely only get correctness and reasonable simpliciter applied

Law Society of New Brunswick v. Ryan (2003) (SCC)Significance: Sets out the principles of standard of review, and defines reasonableness simpliciter

Facts: Hearing of a disciplinary panel of the NB Law Society. Ryan was disbarred for professional misconduct. Ryan had a private practice and took on a wrongful dismissal case and for 5 years did nothing to advance their case. He lied to his clients, making it seem that

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he was taking action and blamed others for delay. Even authored a fake decision of a NB Court of Appeal to show to his clients. Told them that they had been awarded $18,000 and $19,000, respectively, but that there were delays in getting the payment!

Discipline Committee found him guilty and he was disbarred for professional misconduct. Law Society regulations allowed him to appeal directly from the Discipline Committee to the NB Court of AppealCourt remitted the case back to the Discipline Committee to consider additional factors/information. DC reheard the case and still held that he should be disbarred. Ryan appealed again. NB Court of Appeal heard the case again: Substituted indefinite suspension instead of disbarment. Law Society appealed this decision to the Supreme Court of Canada

Issue: What is the appropriate penalty?What is the standard of review?

Held: There should be deference to the decision of the DC tribunal CA should not substitute its decision on a correctness basis

CA adopted a reasonableness standard to, but they misapplied it to the factsSCC adopted an SOR of reasonableness simpliciter Restored the decision of the Discipline Committee

Analysis under the pragmatic and functional approach

Privative clause: no privative clause and broad right to appeal to CA on a question of law or fact

CA has express power on appeal to “make such order as may be just, including referral to the Competence of the Discipline Committee to act in accordance with its directions”Suggests less deference

Expertise: Committee is composed of lawyers and lay appointeesMembers of the public are appointed to the DC - there is always one lay person on the DC panel“At first glance, it may appear that the discipline committee of a law society has no relative expertise since it is composed of lawyers and lay appointees.  Generally, judges will have been members of a provincial law society and will know about the ethical and other standards of practice to which those societies hold lawyers.  That said, there is nevertheless reason to expect that the Discipline Committee has superior expertise relative to courts. 

First, the Discipline Committee has greater expertise than courts in the choice of sanction for breaches of professional standards.Although lay people will presumably have less knowledge of legal practice than judges or the members of the Law Society, lay persons may be in a better position to understand how particular forms of conduct and choice of sanctions would affect the general public’s perception of the profession and confidence in the administration of justice. Field expertise: Third, the Discipline Committee has relative expertise generated by repeated application of the objectives of professional regulation set out in the Act to specific cases in which misconduct is alleged.

THUS: …owing to its composition and its familiarity with the particular issue of imposing a sanction for professional misconduct in a variety of settings, the Discipline

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Committee arguably has more expertise than courts on the sanction to apply to the misconduct. Suggests more deference

Purpose:Preamble to the Law Society legislation: “it is in the public interest and professions’ interest to advance and maintain the standard of legal practice in the Province and to govern and regulate the legal profession”Southam, Pezim – when deciding on questions broad public policy, tends to weigh in favour of deference to the tribunal Held: DC has a broad discretion in respect of the sanctions it may apply to meet the objectives of the Act suggests deference

When there is a range of remedial choices to select from, suggests deference to the decision makerSelf-regulating nature of the profession may suggest defence

Nature of the question:Likely to be considered mixed law and fact – here there are legal standards of professional conduct and associated penalties, and the facts of the case must be applied here to determine the correct crime and penalty

Not likely to set a strong legal precedentHeld: question of mixed fact and law: general principles of the act matched to very specific circumstance at hand”

CA was really concerned about the weight that had been assigned to particular types of evidence – CA though that didn’t give enough weight to mitigating health problems – fact specific principle, not discrete facts of lawIn terms of precedent, case could be used for “general comparison” but not for setting general principles of lawFinds that the tribunal who witnessed the testimony would be in a better position to weigh how much attention to pay to each factor

Statute creates a self-regulating professional body with authority to set and maintain professional standards of practice – paramount role is protection of the interest of the public re: legal services

There are only 3 standards of review (not a spectrum literally). Court holds there should be a RS standard. Why?

1. broad right of appeal correctness2. disciplinary committee was field expertise deference3. purpose of statute is to protect public interest and to keep law society as a self-

regulating body both go to deference4. question of mixed fact and law inconclusive.

Standard of Review Spectrum:

Correctness Reasonableness Simplicitor Patently UnreasonableNo deference Some deference High deference

Justice LeBel’s “cri de Coeur”Concerned with two main things :

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DO we really need to go through P+F in every case? Could we not simply go directly to the standard in cerain casesMain concern: we have too many standards of review! Unreasonableness simpliciter and patent unreasonableness create too much confusion – in either case you are dealing with irrationality (perhaps at a different level) – message should not be that they can stand even if they are patently irrational

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