Question 1: Mckenzie J: Preliminaries When assessing an application for judicial review the very first question ask is whether

judicial review is available. This involves answering five preliminary questions in the affirmative: Is the Administrative Decision Maker a Public body? Does the Applicant have Standing to challenge the decision, which court should the applicant apply for judicial review? Have any deadlines lapsed? Has the applicant exhausted all other means of recourse? Here, the answer is definitive yes to all. Although Martha was employed by a private company, Scones and Cakes Ltd, the decision she is challenging was made by the arbitrator for collective agreements who derived his /her (from the facts we dont know the sex of the arbitrator) authority from the New Brunswick Labour Relations Act (the Act). Hence, the decision maker was a public body. Martha Muffin has standing because she was an actual party to the decision and it affects her directly. The court for Judicial Review has been ascertained as being the New Brunswick Court of Queens Bench which does have jurisdiction to hear applications for judicial review as a S.96 court. From the facts, there is nothing to lead one to believe that Martha Muffin has missed any deadlines for an application for judicial review. Also from the facts one is lead to believe that she has exhausted all other means of recourse, as the Act does not provide a right to appeal, but rather every collective agreement shall provide provision for final and binding arbitration of workplace disputes, and clause 147 of the collective agreement provides that any award made by an arbitrator on a grievance is final and binding on the parties. Based on these reasons then, the preliminary questions for judicial review are met in the affirmative. Grounds of Review Since the preliminary questions have been met, one turns to the two main grounds of review in an application for judicial review. Those being: 1. Procedural Fairness

2. Substantive Fairness Procedural fairness is about whether the administrative decision maker used proper procedures in reaching a decision, and substantive fairness is about whether the administrative maker made an error of the kind of magnitude the court is willing to address. Here, the claimant asserts that the arbitrator had interpreted the corrective agreement incorrectly and that the court should quash the award. Therefore, the ground of review in this case is not regarding procedural fairness, but substantive fairness. In Administrative Law in Context Audrey Macklin states, When judges hear appeals from decisions made by other judges about the interpretation of application of a statutory provision, their task is straightforward: ask whether the lower court got the answer right or wrong. However, in regards to Administrative decisions she states, Judicial review of administrative action brings up a different set of questions that do not generally arise in

ordinary appellate jurisprudence: Is there only a single correct answer? Who is better situated to determine the answer, the first level specialist decision maker or the generalist reviewing judge? Since this area of the law is so contentious, a historical review of the authorities is necessary. In Dunsmuir v New Brunswick the case concerned the termination of employment of a non-unionized employee and how the adjudicator approached the duties of the government as an employer under the relevant legislation. On judicial review the arbitrators decision reinstating Dunsmuir was quashed and Dunsmuir was granted leave to appeal to the Supreme Court. His appeal was dismissed. The case is significant because it clarified the law on standard of review by reducing the standards of review from three to two and attempted to synthesize the caselaw. following ratio was decided in that case:
1.) First, courts ascertain whether the jurisprudence has already determined in a

The

satisfactory manner the degree of deference to be accorded with regard to a particular category of question.

2.) Second, where the first inquiry proves unfruitful, courts must proceed to an analysis

of the factors making it possible to identify the proper standard of review. (Dunsmuir at 62)

Correctness When applying the correctness standard, a reviewing court will not show deference to the decision makers reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. (Dunsmuir at 50) Reasonableness A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. (Dunsmuir at 47) {here (Dunsmuir at 48)] The notion of deference is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers (Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at p. 596, Determining the Appropriate Standard of Review -The existence of a privative or preclusive clause gives rise to a strong indication of review pursuant to the reasonableness standard (but not determinative);

-Where the question is one of fact, discretion or policy, deference will usually apply automatically (Mossop, at pp. 599-600; Dr. Q, at para. 29; Suresh, at paras. 29-30). {Dunsmuir at 53} - Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity: Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157, at para. 48; Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, at para. 39.{Dunsmuirat 54} - Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of ageneral common law or civil law rule in relation to a specific statutory context: Toronto (City) v. C.U.P.E., at para. 72. {Dunsmuir at 53} A question of law that is of central importance to the legal system and outside the specialized area of expertise of the administrative decision maker will always attract a correctness standard (Toronto (City) v. C.U.P.E., at para. 62). {Dunsmuir at 55} Existing jurisprudence may be helpful in identifying some of the questions that generally fall to be determined according to the correctness standard (Cartaway Resources Corp. (Re), [2004] 1 S.C.R. 672, 2004 SCC 26). {Dunsmuir at 57} Correctness review has been found to apply to constitutional questions regarding the division of powers between Parliament and the provinces in the Constitution Act, 1867: Westcoast Energy Inc. v. Canada (National Energy Board) , [1998] 1 S.C.R. 322. {Dunsmuir at 58} Other constitutional issues, are necessarily subject to correctness review because of the unique role of s. 96 courts as interpreters of the Constitution: Nova Scotia (Workers Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54; {Dunsmuir at 58} Courts must also continue to substitute their own view of the correct answer where the question at issue is one of general law that is both of central importance to the legal system as a whole and outside the adjudicators specialized area of expertise ( Toronto (City) v. C.U.P.E., at para. 62, per LeBel J.). {Dunsmuir at 60} Questions regarding the jurisdictional lines between two or more competing specialized tribunals have also been subject to review on a correctness basis: Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners , [2000] 1 S.C.R. 360, 2000 SCC {Dunsmuir at 61}

Application of the Law to the Case and Analysis

Here, the leading case of Dunsmuir is the starting point of application to the case at hand. From Dunsmuir, one is told that the first step in ascertaining the standard of review is to examine whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question (Dunsmuir at 62). In the instant case, there is an arbitrator who made a decision on interpretation of a collective agreement under the New Brunswick Labour Relations Act which led to Martha Muffins not being successful in her claim for seniority and thus she was dismissed. The issue is how much deference should be given to the arbitrator in this instance? The case with most similar facts to the one at present is Cupe v New Brunswick. In that case, there was a question how much deference should be given to a Labour board when interpreting a clause which stated the employer will not replace striking employees with another employee. The issue there was that the employer was replacing striking employees with management. The Supreme Court in that case held that the interpretation of the clause would seem to lie logically at the heart of the specialized jurisdiction confided to the Board. This judgement led to the famous dicta that a court should not interfere with the boards ruling unless it is so patently unreasonable that its construction cannot be rationally supported by the relevant legislation. Since patent unreasonableness is no longer a standard of review under Dunsmuir, the appropriate standard of review is, if one is to assume the particular question is the same here as in CUPE, is Reasonableness. However, the facts here are slightly different. In CUPE it was a labour board which made the decision whereas here the decision was made by an arbitrator. Thus the question at hand is different because arbitrators are often appointed at an ad hoc basis and are different in scope to labour boards in that labour boards interpret and apply the administration of the entire regime of industrial relations whereas the arbitrators task is confined to the interpretation and application of a particular collective agreement. Here, the arbitrator was agreed to by the parties unlike in CUPE where parties had no say in who comprised the labour board. Hence, because the facts are not exact enough to determine whether the standard of review is correctness or reasonableness one must proceed to an analysis of the factors making it possible to identify the proper standard of review. Dunsmuir tells one that where the question is one of fact, discretion or policy, deference will usually apply automatically (at 53, citing Mossop, Dr.Q, Suresh). Here, in my mind the question is one of fact. The question is, Was Martha Muffin an employee for the purposes of

being covered by seniority under the collective agreement? This is a question of fact, not law. Hence, deference should apply. Further, Dunsmuir, at paragraph 55 states, A consideration of the following factors will lead to the conclusion that the decision maker should be given deference and a reasonableness test applied: 1.A privative clause 2.A discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance) 3.The nature of the question of law..a question of law that does not rise to this level [being of central importance to the legal system] maybe compatible with a reasonableness standard where two above factors so indicate. Based on the above then from the facts there is no privative clause but a finality clause. Although finality clauses are slightly different than privative clauses in the sense that privative clauses seek to exclude courts specifically from interfering with substantive decisions made by an administrative decision maker, finality clauses simply intend to lay the dispute to rest, However, finality clauses, like privative clauses are owed a curial deference, though maybe not to the full extent of privative clauses. Further applying the Dunsmuir guideline, the arbitrator does have special expertise in labour relations and there does not appear to be a question of law that is of central importance here. In the Art Hauser Case, it was stated: The context in which this decision arises is that of labour relations. The decision to be reviewed is that of a labour arbitrator, chosen by the parties pursuant to a process established in a collective agreement. There is a long list of cases that could be cited in support of the proposition that consensual labour arbitrators are to be accorded a high degree of deference. (Hauser at 23) Hence one can conclude that the correct standard of review here is reasonableness. Was the decision reasonable or unreasonable? In Dunsmuir, it was said, A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and the outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process. (Dunsmuir at 47)

Here then, is the arbitrators decision justified, transparent, and intelligent? In my mind it is for the following reason. The arbitrator held that the term employees meant employees covered by the collective agreement and seniority applied on the basis of the period during which the employee in question was covered by the agreement. This is a reasonable assertion to make considering the collective agreement explicitly excludes parttime employees. I find this transparent and intelligent following the dicta in the Dr.Q case where McLachlin held: When the standard of review is reasonableness, the reviewing judges role is not to posit alternate interpretations of the evidence; rather, it is to determine whether the Committees interpretation is unreasonable.

Further, in Southam, it was stated by Iacobucci, While I might not agree, as a matter of empirical fact: [that the tribunals analysis on these points] is exhaustive, I think it is not without its reasons. He went on to state, Fortunately for the tribunal, its decision need only be reasonable and not necessarily correct. (at para 68). Lastly, in Canada (Citizenship and Immigration v Khosa), which concerned a deportation for street racing in Vancouver, Binnie J stated, There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency, and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome.

Conclusion In sum then, I would hold that the arbitrators decision stands and Martha Muffin is without remedy.

Question 2 Memorandum Is there any basis for judicial review for Magic at this stage on the process? In order to have a successful claim for judicial review at this stage, Magic will have to show that a duty of fairness is owed, and what the content of that duty entails. The major difficulty here prima facie, is that no actual decision has been taken by the Minister disqualifying Magic from bidding for a government contract. Rather only a recommendation

from the Director of Fair Wages policy recommending disqualification. impossible for a review on substantive grounds.

This makes it

This is a unique situation in regards to judicial review, because judicial review is traditionally predicated on there being a review of a decision. In Guay v Lafleur, Lafleur was authorized under the Income Tax Act to investigate the financial affairs of a number of taxpayers, including Guay. Lafleur began to examine witnesses, and Guay requested to be allowed to be present and to be represented by counsel during these examinations. Lafleur refused and Guay sought an injuction. The Supreme Court held that Guay had no right to a hearing because the function was purely administrative. Here then, was the Directors investigation merely an administrative function like in Guay, and therefore no duty of fairness arises? Not necessarily. In the English case of re Pergamon Press, the Board of trade appointed inspectors to investigate the affairs of Pergmon Press. The principals of Pergamon demanded to see transcripts of the evidence of witnesses adverse to them, an opportunity to cross examine, and an opportunity to respond to proposed findings. Lord Denning in that case held: The inspectors must act fairly. This is a duty which rests on them, as on many other bodies, although they are not judicial, but only administrative. The inspectors can obtain information in any way which they think best, but before they condemn or criticize a man, they must give him a fair opportunity for correcting or contradicting what is said against him. They need not quote chapter and verse. An outline of the charge will usually suffice.

Canada had its own case dealing with whether procedural fairness could apply to investigations and recommendations in Re Abel and Advisory Board Review. In that case, the claimant sought review of decisions made by the Advisory Review Board, pursuant to the Mental Health Act, not to disclose patient files during annual review hearings. There the Court allowed the application, because the Boards decision was highly significant and, as Grange J stated in that case, is virtually the only chance, (albeit an annual chance) that the applicants have of avoiding a lifetime of incarceration; Abel should be contrasted with Dairy Producers Co-operative v Saskatchewan, which involved a workplace complaint of sexual harassment. In that case, the Saskatchewan Human Rights Commission had appointed an officer to investigate and provide the commission with a report on whether there was a sufficient basis for recommending the appointment of a board of inquiry to adjudicate on the complaints. The officer reported that there was probable cause to believe that there had been an infringement of the Act. The Commission then attempted to settle the matter. When settlement attempts failed, a board of inquiry was established. The company applied to the court for orders quashing the establishing of the board of inquiry and the investigators report that there was probable cause. The application was based on allegations of breach of the rules of procedural fairness.

In that case, the court, by analogy to police investigations resulting in the laying of criminal charges, was not prepared to impose any duties of procedural fairness on the official charged by the commission with investigating a complaint that a Human Rights Code provision had been violated. So based on the above authorities, where does that put Magic? In my mind, Magic is owed a duty of fairness because, both re Pargamon Press, and Re Abel were both Court of Appeal decisions in England and in Ontario respectively while Dairy Producers was Sask Court of Queens Bench. Further, like Re Abel, were the decision of the board was highly significant, here too the decision is highly significant in that the company will not be able to bid for two years, for a government contract. Hence, a duty of fairness is owed. How much procedural fairness is owed? To determine how much fairness is owed, brings the Baker synthesis into account. i. ii. iii. The more judicial in character the decision making process, the more procedural fairness required. Here, since there was no decision at all, but only a recommendation, means low procedural fairness is owed. The nature of the statutory scheme, from the facts, there appears to be no procedural requirements that require a director to give a hearing, or give notice; so low procedural fairness is owed; The importance to individuals. Here, if Magic is not allowed to bid for two years, the companies solvency may be at risk or its reputation tarnished, but there is not much to individuals like in Baker facing deportation so a low procedural fairness is owed; Here there is no legitimate expectation so there is no elevation of procedural fairness owed; Neither the Act or the Regulation state there must be certain procedural requirements, and since a decision has not been made, it seems more deference is owed, and therefore minimal procedural fairness owed;

iv. v.

For Magic then, it seems that Magic holds three concerns of: 1. Lack of notice by the Director 2. Getting a chance to explain its actions 3. Reasonable apprehension of bias for the spouse of one of the complaining employees; Should be given little procedural fairness. Dealing with notice, in my mind, procedural fairness was met by the Director by mailing a copy of the report to Magic. As Re Webb and Knight show, a specific form of notice is not required. As for getting a chance to have a hearing, as already stated, low procedural fairness is owed. Further credibility of the company is not as much of an issue as it was Khan, and this case is more akin to Masters v Ontario where it was held that the investigation was neither unfair or biased. Again, the decision had not been made yet, and it is possible, albeit unlikely, that the Minister may allow Magic to make submission to him either by writing or an oral hearing. Hence, no submissions are necessary at this point.

As for the reasonable apprehension of bias argument, it is unlikely to succeed because the question, as laid down in Committee for Justice and Liberty v Nation Energy board asks: whether a well-informed observer viewing the matter realistically and practically have a perception of bias on the part of the admin body? Again it is reminded that low procedural fairness is owed on the facts at hand. Here, it is doubtful that any well-informed person would think any much of the fact that a complainants spouse works in the ministers office and is one of six employees. The reason is because one would be assuming the spouse was firstly influenced by the complainant, to influence the Minister into making a biased decision. That is reading into the matter too much. In my opinion, it is entirely circumstantial and too far removed to give a reasonable apprehension of bias.

Conclusion In sum then, while it may be possible to argue that a duty of fairness may possibly be owed under Abel, the content of the duty of fairness is likely to be severely limited. It would be better to wait for a decision to actually be made by the minister, and proceed at the point for a more successful claim.

Question 3 Here one is asked whether DeMuth and Kyoto have any basis by means of judicial review to challenge the Boards: A. Refusal to allow Kyoto to represent De Muth B. Its ruling that it has no jurisdiction to entertain charter challenges Firstly, one must address the preliminary issues of whether judicial review is even available. Secondly, one must decide what ground of review should be applied for the issues at hand; Thirdly, one must apply the law and ascertain a conclusion to whether it is possible an application will succeed on the issue. 1. Preliminaries: Whether judicial review is even available The first question to ask whether judicial review is available is to ask is whether the decision maker is a public body. Here the administrative decision maker is the Dentists Discipline Board which derives its authority from the Alberta Dentistry Act. Because of this, the Board is a public body. The second question to ask is whether DeMuth and Kyoto have standing to bring an application for judicial review. Here, the decision of the Chair stating the board will only

allow lawyers to act as counsel affects both Kyoto and Demuth directly, and therefore they both have standing. The third question to ask, is what court the application for judicial review would be heard in. Since this case is in Alberta, it would be the Court of Queens Bench. The fourth question to ask is whether any deadlines passed. In Alberta this is a 6-month limit. From the facts, there is nothing showing the 6-month limitation period has lapsed. Lastly, have the applicants exhausted all other means of recourse. This is because there appears to be no right to appeal the boards decision, no ombudsman to confer with, or any other mechanisms internal to the Act to challenge the decision. Hence the preliminary requirements for judicial review have been met. 2. Gounds of Review There are two main grounds of review in a judicial review claim: Procedural fairness and Standard of Review. Procedural fairness is about whether the administrative decision maker used proper procedures in coming to a decision, and substantive fairness is about whether the administrative maker made an error of the kind of magnitude the court is willing to address. Here, there is third ground of review that will be addressed which is in regards to the second challenge to the boards ruling that it has no authority to entertain Charter challenges. That ground of review is Constitutional Challenge. The first challenge will be dealt with first however, which is the boards refusal to allow Kyoto to represent DeMuth because he is a non-lawyer. This fits squarely with the duty of fairness and specifically the right to counsel. This issue will be addressed first. The Right to Counsel Before addressing the right to counsel, one must first examine the threshold test for whether a duty of fairness is owed, and if owed, whether the content of that duty indeed includes the right to counsel. In Knight v Indian Head School , the court first asks whether the statute itself states whether a duty is owed or not owed. From the facts, the Alberta Dentistry Act is silent in regards to procedural fairness for a member being disciplined. It neither excludes nonlawyer representation, nor allows it. However, provision is made for the Board to be provided by a lawyer. As such, a further inquiry is necessary if a general common law duty is to be found. Knight shows a contextual analysis of the following three factors to ascertain whether a duty of fairness is owed: 1.nature of the decision made by the admin body 2.The relationship between the admin body and the individual

3. The impact of the decision on the on the individuals rights. Here, because the decision by the Chair at the pre-hearing was administrative and not legislative in nature, and affected Demuths possible right to counsel which can affect the result in the subsequent hearing, there is clearly a duty of fairness. Content of Procedural Fairness Is the right to counsel, a right permitted to a miscreant in this context? In Baker, the court applied five contextual factors to determine the level of content a duty of fairness was owed.

1.

If the decision making process is more judicial in character, there will be more procedural fairness required.

2. If the nature of the statutory scheme provides preliminary steps, requirements of

fairness will be minimal. This is not the case here, as already stated the act is silent in regards to the miscreant.

3. The greater the importance of the decision to the individual the more procedural
fairness owed.

4. If there is a legitimate expectation that Demuth will be allowed to use Kyoto based on
Kyoto previously representing dentists, then more procedural fairness may be owed.

5. If the tribunal has good reason to exclude Kyoto for purposes of expediency then less
procedural fairness is owed as more deference is in order. This does not to be the case here, however, as from the facts it has been shown Kyoto has represented other dentists numerous times. Balancing, the above Baker factors, it can be shown that high procedural fairness is owed and as such that may include the right to legal counsel. However, procedural fairness does not necessarily entail a right to legal counsel even at ones own expense (Re Mens Clothing Association). In Re: Howard and Presiding Officer the admin body must consider: 1. The seriousness of the proceedings, 2. The nature of the proceedings, 3. The capacity for the affected individual to present their case, 4. The technical complexitiy of the issues, 5. The general need for fairness, to determine whether counsel should be provided. It seems the admin body has already considered this, and deems lawyers are allowed at the hearing. The issue is denying non-lawyers such a Kyoto to represent. This seems to be an inverse of Re Mens Clothing Association where the issue was arbitrator not allowing legal counsel to represent. It seems in that case, the applicants wanted the expertise of the legally trained representation and the court granted it. On the facts of this case, it seems Demuth wants Kyoto for his expertise in handling this type of adjudication. Although, it seems odd that Demuth would not want to be represented by a lawyer if the tribunal has its own lawyer I take the ratio in Mens clothing as good law where Southey J states, as a general rule, in my judgement, a party entitled to be represented by an agent before a domestic tribunal cannot be restricted by the tribunal in the choice of its agent, in

the absence of an applicable rule or agreement containing such restriction. believe the Board chair erred when saying Kyoto could not represent DeMuth.

Hence, I

Charter Challenges Issue In regard to the Charter Challenge, the issue is whether the Dentists Discipline Board, as a creation of statute, has authority to interpret and apply the Charter to their enabling legislation for the purpose of refusing to give effect to provisions found to violate the Charter. This question was initially considered in a trilogy of cases: Douglas/Kwantlen Facutly Assn. v Douglas College, Cuddy Chicks Ltd v Ontario (Labour Relations Board) and Tetreault-Gadoury v Canada (Employment and Immigration Commission). Laforest J wrote the majority reasons in each of these decisions. He held that because S.52(1) of the Constitution Act 1982 declares the constitution to be the supreme law of the land and inconsistent law of no force or effect, administrative decision makers with the power to interpret law must also interpret and respect this law. He held therefore although administrative decision makers cannot declare infringing statutory provisions to be invalid (a power reserved for the courts), S.52 (1) authorizes them both to apply the Charter to their enabling legislation and to refuse to give effect to provisions they determine to be inconsistent with it. The Supreme Court pointed out that it retained authority to review agency determinations of Charter issues on the least deferential standard of review: correctness. However, in Cooper v Canada (Human Rights Commission) Lamer CJ raised concerns that recognizing agency (administrative decision maker) jurisdiction over the Charter undermined the separation of powers according to which the legislature makes law and the executive applies it:permitting agencies to apply the Charter to their enabling legislation appeared, he said, to let the executive decide the limits of its own jurisdiction. Lamer held that allowing tribunals to hear Charter challenges to their enabling legislation means that the executive can defeat the laws of the legislature. In Cooper itself, the case turned on whether the Canadian Human Rights Commission or a tribunal struck under it had jurisdiction to apply S.15 of the Charter to S.15( c ) of the Canadian Human Rights Act. S.15 (c ) stipulated that it was no a discriminatory practice for an employer to terminate an individual if the individual reached the normal age of retirement for employees occupying a similar position (Airline Pilot in this case). Laforest J, held that the legislation did not confer on the commission an explicit power to consider questions of law, and that no such power was implicit to the statutory scheme because the commissions role within it was to screen complaints rather than adjudicate them. In this case McLachlin J made her famous dissent by stating: The Charter is not some holy grail which only judicial initiates of the superior court may touch. The Charter belongs to the people. All law and law-makers that touch the people must conform to it. Tribunals and commissions charged with deciding legal issues are no exception. Cooper was highly critized and what followed was s series of cases confirming the dissenters view. The leading case of which was Nova Scotia (Workers Compensation

Board) v Martin. In Martin, the Nova Scotia Workers Compensation Act and its regulations excluded chronic pain sufferers from receiving benefits under the regular workers compensation system and provided, in lieu of benefits usually available to injured workers, a four-week functional restoration program beyond which no further benefits were available. As a result of the statutory exclusion, the Workers Compensation Board denied benefits to two workers suffering chronic pain. The workers appealed the boards decision to the Workers Compensation Appeals tribunal. They alleged that the legislation infringed S.15(1) of the Charter by denying them equality under the law and discriminating against them on the basis of their disabilities. The Appeals tribunal held that it had jurisdiction to hear the Charter argument, and concluded that the statutory exclusion violated the Charter as the complainants alleged. The Supreme Court in that case stated, administrative tribunals which have jurisdictionwhether explicit or implied-to decide questions of law arising under a legislative provision are presumed to have concomitant jurisdiction to decide the constitutional validity of that provision. The court relied on the old trilogy and overruled Cooper to the extent that it went the other way. Apply Martin here then, the question to be asked is, whether the empowering legislation implicitly or explicitly grants to the tribunal the jurisdiction to interpret or decide any question of law. While it is true the Alberta Dentistry Act does not explicitly grant jurisdiction to consider questions of law, the jurisdiction may still be present implicitly and inferred from a series of factors: the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunals capacity to consider questions of law. Here, it is argued that Martin does apply because the Alberta Dentistry Act does give the Disciplinary Board authority to decide questions of law to fulfill its mandate. For example, if a dentists breaks the criminal law, the disciplinary board can decide to deny a licence depending on the gravity of the offence. Further, the disciplinary board is highly adjudicative in nature. Hence, it is suitable here to reason that it is within the Boards jurisdiction based on Martin to consider the Charter arguments unless they can rebut the assertions with evidence that the legislature presumed to exclude such challenges.

Question 4 Whether S.7 applies to proceedings before the board S.7 of the Charter states that everyone has the right to life, liberty, and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Here, to access procedural safeguards in the context of S.7, complainants must first cross the the threshold of establishing that their life, liberty, or security interests are impaired by the relevant decision. If the affected individual cannot establish that the impugned

decision touches a S.7 interest, procedural fairness may still be due, but as a matter of common law rather than as a consequence of S.7 and the principles of fundamental justice. From the facts, it is unlikely that S.7 is engaged here because DeMuths Life, Liberty, or Security is not in any danger. Unlike Singh, where security of person was in jeopardy, or Charkaoui liberty, the most DeMuth would face for his misconduct would be a reprimand, suspension, or a fine. Although it has been stated that S.7 is no longer restricted to mere freedom from physical restraint, and applies whenever the law prevents a person from making fundamental personal choices, like Blencoe it seems difficult to argue here that the state is preventing Demuth from making personal choices by authorizing the Chair to both direct an investigation and preside at a subsequent hearing. While lower courts may state that S.7 liberty includes the right to work ( Wilson) Professor Hogg states this is bad law and should stay within the realm of economic rights outside the scope of S.7. Hence, a strong argument can be made that S.7 does not apply. As for S.11 (d), to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal that provision is unlikely to be engaged here as well because it has been held that penal consequences are required before it can be applied (Alex Couture). As already stated there is no possibility of imprisonment for DeMuth here. However, the R v Valente principles (which laid down principles for judicial independence) applied in Alex Couture do apply to administrative tribunals generally, as stated in Canadian Pacific Ltd v Matsqui Indian Band where Lamer CJ stated, while administrative tribunals are subject to the Valente principles, the test for institutional independence will depend on the nature of the tribunal, the interests at stake and other indices of independence such as oaths of office. Here, it has already been mentioned that a high duty of fairness is owed because the body is adjudicative in nature, and Demuth has the possibility of losing his license to practice dentistry. Here then, examing the principles of 1. Security of tenure 2. Financial Security 3. Administrative Control can it be said that the tribunal is independent? The essence of security of tenure is tenure, whether until an age of retirement, for a fixed term, or for a specific adjudicative task that is secure against interference by the executive or other appointing authority in a discretionary or arbitrary manner. Here, from the facts given it appears the chairs tenure is secure, for the adjudicative task of deciding discipline issues. The essence of financial security is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the executive in a manner that could affect judicial independence. From the facts there is nothing to show that the Chairs financial salary or pension is being compromised in any way. So there is sufficient financial security.

The essence of administrative control means that the tribunal must be limited to independence from the government. Here, from the facts it appears the tribunal is not being coerced by the government in any manner. So, prima facie it appears the test for administrative independence is made out. However, it may not be impartial, as the chair investigates and then adjudicates. In other words the chair may not be impartial from the parties ( Matsqui). In Matsqui, this lack of impartiality was enough for the court to hold that independence was not made out, somewhat of a fourth condition for the test of independence. Here, it is possible the same may be said of the Chair, that he is not independent or impartial because of his dual role as an investigator and adjudicator and this may lead to an indica of bias. However, it should be noted the statute explicitly allows for this dual role. As such, this much akin to the case of Brosseau, where the court held that there is no reasonable apprehension of bias where acting under statute. In my mind, because of the ratio in Brosseau, and the fact that the Valente criteria is made out, there is no lack of independence or reasonable apprehension of bias on the part of the chair.