Administrative Law Summary - 08

Admin Law
What is Admin Law all about?
1. Admin tribunals are delegated powers by parl to regulate
2. Under what circs can cts intervene in the decisions made by these various tribunals
a. Tribunals decision making power must be somehow be constrained – 3 ways:
i. The constitution
ii.Statutes
1. Allow for the tribunals to come into existence and gives them
2. Set certain limits on their decision making powers
3. Every ? on the exam you must start with the statute as the
statute first and foremost sets limits on the tribunals
decsionmaking power
a. Understand the provisions under which the trib is
making decisions under
4. Admin law gives us the tools
iii.Common Law
3. 2 major umbrellas in admin law – or ways to challenge the decision of A or trib:
a. Procedure
i. Proced leading up to a partic decision – ie, must make decision
pursuant to a partic procedure
ii.Proced is about challenging a decision on the basis that the proced
leading up to the decision was inadeq
b. Substantive review
i. Ability to challenge a decision on the basis that they made an error in
interpreting the law, fact or mix of the two
ii.Jurisdiction issues rise under substantive review
c. All questions will be about one of the above two things

Admin law points

1. JR of Admin decisions of Ontario bodies is governed by the JR Procedure Act and the
rules of civ pro
a. Lays out rules for filing applics, etc.
b. Lays out remedies
2. Fed decisions are governed by the Federal Courts Act and the Fed Courts Rules
a. Fed cts can only review decisions made pursuant to fed statute
b. Prov cts can only revie
i. Prov sup cts are allowed to review applications made when it is about
the constitutionality of the decision

Criteria under which an applic for JR can be brought – availability of JR

1. Only public action can be JRd
a. Rule derives from FCA s. 2(1) and JRPA s. 1
2. Only the actual exercise of statutory powers can be JRd
a. FCA 2(1) and JRPA s.1
b. Decision must emanate from the statute in order to be reviewed –
3. Only decisions with an element of finality can be reviewed
a. Decisions which CANNOT be reviewed are interlocutory or preliminary
decisions
i. Don’t confuse this with the availability of an appeal – you can have an
appeal avail and still get something reviewed

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 1. But, if you have an appeal avail, the cts are going to be
reluctant to allow you to have something reviewed  makes it
more difficult to get review

PROCEDURE – Procedural deficiencies

1. One of the ways in which the dec made by the tribunals can be challenged
2. If you can prove that the proced pursuant to which a decision was made was in some
way inadequate in that context
3. 2 diff categories under procedure:
a. Natural Justice
b. Fairness
4. Martineau – SC said that the 2 categories under the umbrella of fairness should not
necc be divided rigidly

(a) Natural Justice

1. Applies when proceedings can be classified as either judicial or quasi-judicial in
nature
2. Features/factors suggesting judicial or quasi-judicial in nature: Coopers and librand
case
a. Statute contemplates a hearing (as opposed to for eg. the submission of a
hearing)
b. Decision directly affects the rights and obligations of a person
c. Adversarial process is involved – sit where one party is up against another
party
d. Obligation to apply substantive rules to many individual cases rather than
making policy or policy-like decisions
3. Content of natural justice (elements):
a. Right to be heard – encompasses:
i. Prior notice of the proceeding
ii.Notice must be given sufficiently early to meet one’s case and make
representation
iii.Notice must provide sufficient info to meet one’s case
iv.Notice must disclose the DM’s intentions
b. Right to an impartial decision maker (DM)  BIAS (see below)
4. Rules of Nat Just are codified in the Statutory Power Procedures Act (SPPA) in Ontario
a. Have the SPPA with you in the exam – become familiar with it
b. SPPA only applies if a hearing is contemplated
i. Not every stat will explicitly tell you whether a hearing is contemplated
ii.If the statute is silent, you have to go to CL rules to determine if a
hearing is warranted in the circs
c. SPPA does not necessitate an oral hearing
d. Look at the SPPA when dealing with an Ont decision, but then look at the CL –
SPPA is not the final say – it is the bare bones that is then supplemented with
the CL
5. Federally there is no equivalent to the SPPA  when dealing with fed decisions you
apply only the CL
6. Bias
a. Personal
i. One of the DMs has an ulterior motive or int riding on this decision 
something that would induce the DM to make a dec based on
something other then the merits of the case
ii.Grounds for alleging that there is pers bias can emanate from a
number of diff places
1. Could be hidden in the question
b. Institutional

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 i. Stat framework is structured in such a way that bias is a byproduct of
the structure
ii.Eg. stat allows the same people who entered the evidence were then
the ones who make the decision
iii.Could the framework result in a decision that is made on something
other then the merits of the case
7. Institutional decisions
a. Delegating decisions to subordinates can be done as long as the statute
allows you to delegate
8. Consultations
a. If you are a DM you can consult with other ppl
b. You can also bring in outside counsel to advise you
c. But at the end of the day it has to be your decision  cannot allow someone
else’s decision to be substituted for your own

(b) Fairness
1. Leading decisions on fairness: Nicholson and Baker
2. Procedure encompasses various entitlements, eg. A to Z what you are reqd to do is to
assess the context that you are dealing with and decide what entitlements are
warranted in the context
a. Procedural elements that can be granted  what elements were granted and
then what elements ought to have been granted in these circs
3. Procedural fairness operates as a spectrum regarding what procedural entitlements
are warranted in various contexts – eg. $7 parking ticket at one extreme and first
degree murder on the other
a. Parking ticket entitled to A through E
b. First degree murder entitled to A to Z
4. On exam they will not give you either extreme – you will be presented with a sit that
falls in the middle of the spectrum
a. The middle sits provide the most room for analysis and this is what they will
test you on
5. **You are reqd to decide where on the spectrum you lie and then decise what from A
to Z ought to have been granted
a. if you decide A to X but the proced that was provided was only A to H then
you may have ground to challenge the decision on the basis that procedure
was inadequate
6. Fairness encompasses the following elements/entitlements (ie, the A to Z)
a. The right to know the case to meet
b. The right to make submissions to the DM
c. Reasons for the decision – depending on the importance of the decision
7. Factors affecting the duty of fairness: (cite Baker, Nicholson)
a. Nature of the decision
i. Whether the decision resembles judicial or quasi-judicial proceedings
1. Adversarial, hearing contemplated, etc (see above)
ii.The more that it resembles judic/QJ (based on the factors above) the
more of the A-Z procedural entitlements are warranted
b. Nature of the statutory scheme and terms of the statute pursuant to which
the trib operates
i. Whether an appeal is avail or whether the decision is determinative of
the parties rts
1. If an appeal is avail, then fewer of the procedural entitlements
are warranted
c. Importance of the decision to the individual affected

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 i. The more significant/impt the decision is to you (ie, the more dramatic
the conseqs are to you) the more procedural entitlements are
warranted
d. Legitimate expectations
i. Whether you were induced to believe that you were going to be
granted with certain proced entitlements
1. Eg. stat says that you will get hearing, etc.
2. If you are legitimately induced to believe that you would receive
certain proced entitlements and then you are not granted
those, you may have grounds to arg that you should have been
granted what was expected
e. Choice of procedure made by the tribunal itself
i. Trib making the decision chose a proced pursuant to which it made
that decision
ii.Ct will defer to the tribunal somewhat but it is not determinative
f. Charter – section 7 Life liberty and security of the person
i. S. 7 affects proced
ii.If the context you get in a ? has to do with LLP then this is something
that will warrant far more procedural protection/entitlements
8. Structure for answering the question:
a. Assess the nature of the sit that you are presented with
b. Eval what procedural entitlements should be granted in the sit – based on the
factors above – what ought to be granted… then
c. Compare what you think ought to be granted with what was granted
d. If what was granted was less then what ought to have been granted then you
may have grounds to challenge and have the decision quashed (or be entitled
to some other remedy)
9. Procedure provides you grounds on which a decision made by a tribunal can be
challenged and reviewed
10. Procedure does not apply if it is a policy/cabinet decision

SUBSTANTIVE REVIEW – review on the bass of error of law, fact or a mix of the two
Error of Law and/or Fact
1. Key thing with substantive review is FRAMING the ISSUE
a. Is there an error of fact and or law
b. And if there is, what the nature of that error is – ie, law or fact
i. Distinction is often blurred
c. Read what is in the statute and then read the facts  isolate the decisions
that were made in the case and then identify the stat provisions pursuant to
which the decisions were made
i. Then determ if there are sufficient facts to make out a challenge on
the basis of procedure or that there is an error of law and or fact
ii.Always start with the statute then go beyond that and look at the CL
rule
2. Always start with the statute here as well
3. Isolate the decision that was made
4. First frame the issue to estab that there are grounds for challenging that there are
errors of fact or law
5. Next establish the SOR – to what degree is the reviewing ct going to defer to the
tribunal
a. How willing is the ct going to be to interfere with the decision that was made

Standards of Review (ie, the level of derence that ct will give to trib’s decision) – there used
to be 3, but now there are only 2 SORs (Dunsmuir) (SORs define the cts willingness to
interfere with the deciosn of a trib)

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 1. Correctness
a. Least deference
b. Pursuant to this SOR, the ct is saying that they will always interfere with the
trib’s decision, unless it is correct
c. If from the POV of the ct there is any error (law, fact or mis), then that
decision will be reviewed and some remedy will be instituted
d. If operating pursuant to this SOR any type of error, regardless of it is subtle
error or not, will constitute grounds to have the decision changed in some way
2. Reasonableness
a. More deferential
b. Ct is saying that they will allow the trib some maneuvering room with
decisions as long as overall the decision is reasonable
i. Maybe it is not perfect decision, maybe there are errors interpreting
law or fact, but it will be okay as long as it is not stupid – ie, reasonable
c. Look at conspicuousness of error – in your face vs. sort of hidden
3. Patent Unreasonableness (b/c of Dunmuir, this SOR is Gone)
a. Patent unreasonableness was the most deferential standard
b. Pursuant to this standard the ct was saying that they were NEVER going to
interfere unless the decision was patently unreasonable (stupid)

Frame the issue

Establish a SOR
Next must evaluate the decision that was made based on the SOR that you have chosen

Factors to when choosing/establishing a SOR (factors affecting choice of SOR) – cite Baker
and Dunsmuir, Pushpanathean, etc.
1. Privitive clause
a. Clause where Parl has stated that the decision will not be reviewed – JR will
not be avail
b. A privitive clause is not determinative, but if there is this kind of clause it will
push the ct to be more deferential
c. If privitive clause present = ct will be more deferential
2. Expertise – 2 points involved
a. Nature of the area of law with which we are dealing
i. Eg. dealing with human rts – cts think they have expertise – will be less
deferential
ii.Eg. dealing with securities law – cts have little experience – will be
more deferential
b. Does the trib have experience dealing with this area of law
i. More experience of trib and more complex area of law = ct will be
more deferential
3. Purpose of the statute as a whole and of the provision in particular
a. Whether the decision deals entirely or mostly with the ints of the parties
encompassed in this action
i. If it deals only with the immed ints of the parties involved in the action
– LESS deferential
ii.If it deals with ints that go beond the ints of the parties involved in the
action – eg. policy type decision  court will be MORE deferential
1. Rationale is that if you are dealing only with the ints of the
parties, then the ct is in essentially the same position as the trib
to understand the implication
2. Broader the implications = MORE deferential
4. Nature of the error
a. Whether it is an error of law, fact or mixed
b. Do this at the outset when you are framing the issoe

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 c. If it is an error of Law = ct will be LESS deferential
i. Court is an expert in interpreting the law and will show less deference
d. If it is an error of fact = ct will be MORE deferential
i. Rationale is that the trib is probably in a better position to assess the
facts then is the court
ii.Cts do not have the benefit of observing everything that the trib does –
eg. they likely only see a drafted synopsis of the facts
e. Dunsmuir – if it is an error of law and the question of law with which we are
dealing has broad implications or is a serious, major question of law, this will
almost always warrant a standard of Correctness
i. Serious ramifications will almost always warrant a standard of
correctness
Identify if a proced issue or a substantive issue – if it si a substantive issue:
1. Frame the issue - Identify if there is an error and if there are facts to arg that there is
an error of law, fact or mixed
2. Establish a SOR by evaluating the sit based on the above 4 factors
3. Then evaluate the decision and the error in that decision in light of the SOR that you
have chosen

Remedies – you have determined that there are grounds to have the decision reviewed –
either proced deficiency or error of fact or law – then go onto remedies
1. Prerogative writs - Codified in JRPA s. 2 and FCA s. 18.1(3)
a. Mandamus – compels performance of a legal duty
i. If trib is not performing their duty, the court can order mandamus
which will order the trib to do what they are reqd to do
b. Certiorari – the power to quash or set aside the decision of an admin
org/tribunal
i. Probably what you will seek the most often
ii.Rare that a court will substitute its own decision – instead it is sent
back and a new decision maker must make the decision again in light
of what the court has done
c. Prohibition – enables the court to prohibit a proceeding, decision or act
i. Prohibit the trib from doing what it is doing
d. Habeus Corpus – remedy avail to persons detained or imprisoned and reqs
that the person or entity detaining to produce the applicant before the court
and justify his/her detainment
i. Very specific remedy for someone who has been detained
2. Equitable Remedies
a. Declaration – declaring the legal position
i. Eg. Reviewing ct is reqd to declare its position on interp of some
statutory term
ii.Once the ct declares its position, that is not binding on a trib, but it
would be pretty stupid to not follow it
b. Injunction – restrains or forces an action
c. Interim Relief – stay of proceedings while JR takes place
i. Stay while reviewing court evaluates an applic for JR
ii.Eg. order for you to be deported, you file applic to have that decision
reviewed
1. If your deportation date is soon, you can file for interim relief to
have your depaortation date stayed while JR is in process

Standing – if you want a decision challenged, but you are not a party that was directly
affected by the decision, then you must go through 3 part test for standing (finnley
case):
1. Is there a serious issue

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 2. There must be a genuine interest on the part of the applicant
a. Eg. envtal issue – Greenpeace would have a genuine interest
3. There are no other reasonable or effective means of bringing the question before the
court

BAKER (1999) 2 SCR 817

1. Facts: B came in 1981, never became a permanent resident. While in Can she had 4
children and was diagnosed with schizophrenia. After 11 years she was ordered
deported (1992). B submitted a H&C application – applic which is totally at the
discretion of the minister who must assess whether there exist H&C concerns which
will warrant the staying of the deportation order. Note that this is a discretionary
decision. Application was denied by the immigration O (whoe duty was delegated by
the minister) – application for exception from deportation denied by O on the advice
from Junior O. Looked at his notes which were the basis for the decision that the H&C
application should be denied
2. Issue: whether there was a breach of procedural fairness and/or an error of fact/law
that would serve as grounds to have the decision quashed
a. Reviewed on the basis that there was faulty procedure and/or error of fact/law
3. Court’s analysis of Procedural Fairness
a. Baker’s first arg was for legit expectations – international law saying that the
ints of the children ought ot be taken into account
i. This legit expectation should have induced the DM to take the ints of
the children into account
1. SC said NO – legit expectations cannot emanate from intl law
b. B’s 2 arg was that there were no reasons provided for the decisionand there
nd

was no oral hearing

i. SC said that the req for providing reasons is a flexible one and here the
O’s notes were sufficient
ii.SC also said that an oral hearing is not mandated in this case
1. Singh case- ordering of oral hearing would have huge physical
implications on the tribunal
c. B’s third arg was reasonable apprehension of bias – ie, the O did not make the
decision objectively on the merits of this indiv case – decision was made on
the basis of his predisposition and stereotypes
i. SC looked through his notes and concluded that the decision was
Biased
1. O had predetermined stereotypes about women, etc. – he had
predispositions about what a person like B will face in the future
if she was in Can
a. Did not make the decision based on the merits of this
partic case
ii.If you can make out bias, it means that proced was inadeq and you can
likely get the decision quashed
4. Court’s analysis of if there was an error of fact and/or law (SUBSTANTIVE REVIEW)
a. Test for substantive review:
i. Privitive clause
1. No priv clause here – therefore LESS deference
ii.Expertise
1. Yes expertise – therefore MORE deference
iii.Purpose of the statute as a whole and of the partic provision – partic
ints or broader policy issues
1. Here it deals with the partic indiv – therefore LESS deference
iv.Nature of error – here they determines it is error of fact – therefore
MORE deference

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 b. This was a DISCRETIONARY DECISIONS – provision in the act said that this is a
discretionary decision which the O can make at his own discretion
i. Implication of this being a discretionary decision – this will push
towards MORE deference
ii.Discretionary decisions emanate form provisions that state that the
decision will be made solely at the discretion of some person
iii.But, nevertheless, discretionary decisions will be able to be judicially
reviewed
1. Rationale is that DM cannot be given free reign, you still need
boundaries
a. Boundaries will emanate from the statute itself – those
provisions that you are provided with will provide you
with clues as to the boundaries
i. Clues can be found in the, for eg, the purpose of
the statue
ii.May say that decision can be made soley in the
person’s discretion but the following must be
considered
iv.In text book this substantive review issue is called Abuse of discretion
v.Determine the framework and then see if the decision fits in that
framework
vi.Abuse of Discretion – 2 types of mistakes/errors:
1. Make the decision on the basis of irrelevant factors
2. Not taking relevant factors into account
3. Statute will give you clues as to what are relevant vs
nonrelevant factors
c. Based on this, SC adopted a standard of REASONABLENESS  therefore the
question that must be answered is whether this decision was REASONAZBLE
i. Even though there was some error, was the interpretation of law/fact
REASONABLE?
ii.NO – here SC found that it was NOT reasonable
1. Not reasonable for O to NOT take into account the ints of the
children
d. Identify if there was error of F or L
i. If you believe that there are grounds to arg that there was an error of f
or L – estab a SOR by looking at the factors
ii.Evaluate the decision based on the SOR chosen

Error of law vs.error fact

1. Think about the provision that the trib is making the decision pursuant to
2. Look at the statue and estab the legal basis for the decision
3. Look at whether the trib is interpreting the provision correctly – a term, etc.
a. Are they reasonable interpretations of the provision
4. Look also at the facts, the factual basis on which the decision was being made
a. Was there an error in interpreting the facts – eg. they interpret the guy was
wearing a red shirt, but he was really wearing a blue shirt

Jurisdiction
1. Jurisdiction is evaluated on a CORRECTNESS standard
a. If you are operating outside jurisdiction of your statute then the decision will
be quashed or another remedy will be instituted.

Students questions from Day 1

If there is a privitive clause – there will be more deference but JR is still avail
Collateral attack

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Collective agreements

ADMIN LAW PREP CLASS  DAY 2

Dunsmuir v. New Brunswick (2008)

1. Facts: Cause for termination was not alleged (ie, fired without cause  therefore
must give notice or compensation in lieu of notice). Here he got 4 mths pay in lieu of
notice. D filed a grievance under public service labor relations Act alleging: i) no
reasons were given; ii) no opp to respond; iii) occurred without notice or DP; iv)
notice was inadequate
a. These allegations are an arg that procedure was inadequate  he is arguing
that he should have gotten way more then the letter and 4 mths of pay that
he got
2. Issue: was procedure in this context insufficient – does he have basis in this context
to get the decision quashed on the basis that procedure was inadequate
3. Ct talked about the original 3 SOR  they were confusing so they decided that there
would only be 2
a. Correctness
b. Reasonableness – is this decision one of a number of reasonable decisions
that could have been made in this context
i. Has to do with...
4. Patent unreasonableness is GONE
a. Major change
5. Substantive review – 1 minor issue
6. Procedural review
7. SC said that procedural fairness does not apply in this case bc it is a K of employment
a. Nicholson and Knight were wrong
8. No PF was warranted here given the nature of the rship bw D and his employer
a. Sit that he was employed on a contractual basis  NO PF- as contractual rship
is governed by K law, not the principles of admin law
9. Main thing that case stands for is that it removed Patent unreasonableness from SOR
10. SOR
a. Privitive clause
b. Expertise
i. This case added that you have to look at whether the trib is interping
its own statute
1. If yes = More deference
c. Nature of the error – whether the error is law or fact or mixed
i. This case said that where the nature is error of law and the question of
law is a serious one, it will be evaluated on the basis of the correctness
standard – little deference
d. Purpose of statute and provision
11. Case also added that contracts of employment do not fall under the umbrella of
admin law principles
a. Those rships are governed by private K law
b. Therefore you cant arg PF is you are a contractual employee

Statutes
Canadian Security Intelligence Service Act
Aeronautics act
Canadian Passport Order

Practice Exam
Section A Part 1
1. a) Mr. Kelley – how to get decision challenged – 2 ways:

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a. Procedure
i. Look at statute first (whether looking at procedure or substantive) –
statute sets a bare min for procedure, if it is not followed it auto
provides grounds for which a decision can be reviewed judicially – may
not be determinative b/c CL might add more proced reqs
1. S. 48 of CSIS statute sets out procedure and estabs the min
benchmark
ii.Now we compare what the stat mandates with what was provided  if
what was provided does not meet what ought to be provided as
pursuant to the statute, then there are grounds to have the decision
reviewed for proced inadequacies
1. Here there was no ability for him to be heard, represented by
counsel and he was not fully informed  ie, here the statute
was unambiguously not followed – therefore we have strong
grounds to have this decision reviewed on the grounds that the
procedure was faulty
iii.CL analysis (Baker)- in order to assess what ought to be granted in a
partic context – where on the spectrum a given context lies (parking
ticket = fewer proced protecs; murder = all proced protecs)
1. Baker TEST - factors for assessing the context to determine
what procedural fairness entitlements are warranted:
a. Nature of the decision – whether the decision resembles
judicial/quasi-judicial proceedings
i. Here, the statute gives the impression that it is
adversarial proceedings, you get hearing, you get
counsel  it is clearly a quasi-judicial proceeding
as compared to as just an application
1. Yes, proceedings here resemble quasi-
judicial proceedings
a. This means that MORE procedural
entitlements are warranted
b. Nature of statutory scheme– whether an appeal is avail –
finality of decision
i. Here the statute does not talk about appeal and
therefore it looks like final decision
1. This means MORE procedural entitlements
c. Importance of the decision
i. Here it is an impt decision – bring in case law
here and also try to find salient diffs bw our case
and the case law you are bringing in
1. Nicholson – employee/employer rships –
held that matters of employment are
important (not a trivial matter)
a. Salient diff – in Nicholson there was
an existing employment rship while
here K was not even working, it
was a contingent appt dependent
on him getting security clearance
i. Therefore here would get
some PF entitlements, but
not as much as Nicholson
2. Re Webb – SC stated that you have disting
bw a benefit that was given to someone
and has been held for some time vs. a

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 benefit that is promised but is contingent
on something or has not been held yet
a. Given and held = MORE PF
d. Legitimate expectations
i. Here, the stat specifically says that he would
have a hearing and chance to get counsel, as
fully informed as poss, etc.  ie, he was
legitimately induced into believing that he would
get these things based on the statute
1. There are LE here
e. Choice of procedure made by the tribunal
i. Here the trib decided to send a 2 par letter and
that was it – chose not to follow its own statute
1. But this is not determinative
f. Charter sec. 7 – Life liberty security of the person
i. Here there is not a strong arg that s. 7 is
implicated
2. Based on analysis of the above factors there are some factors
that are pushing towards some procedural entitlements 
definitely more then what was granted
iv.We would conclude here that what was granted here (2 par letter) falls
significantly short of what ought to have been granted in this context
1. Therefore we can get JR and can likely seek some kind of a
remedy bc the decision was made by inadeq procedure
v.Remedy we would seek would be certiorari  most beneficial
1. They did not follow their own statute and therefore we could
likely get the decision quashed
vi.**NOTE: always do CL analysis under procedure even if it a case like
here that is completely unambiguous bc they give you procedure in the
statute and it is clear that the procedure was not followed – do a CL
analysis anyways
b) the govt – unhappy with decision to give back his passport – what grounds can
they challenge this decision on?
1. Procedure – No, bc procedure was an issue for Kelley not them
2. Substantive Review (error of fact or law) – yes
a. First FRAME THE ISSUE – is there an arg to make that there is an error
of fact or law in the decision made?
i. Here it could be an error of mixed fact and law
1. Law - says that if threat to National security then
passport can be revoked  they interpreted the law as
excluding membership in the IRA in the 1970s
a. Govt would arg that this was a misinterp
2. Fact –-> they interpret that his membership in the IRA
does not constitute a threat to national security
a. Govt wold arg that this is a misinterp
ii.You have to look at the provision pursuant to which the decision
was made and the interpretation of it
1. Then deduce whether there are any grounds for a
misinterpretation of fact, law or mix
b. Establish a SOR – SOR analysis (cite Baker, Dunsmuir) - factors to
determine the amt of deference and therefore the SOR:
i. Privitive clause
1. There is no privitive clause here
a. No clause = LESS deference

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 ii.Expertise
1. Here there is some expertise in the trib as we are
looking at security, etc. – ie, not everyday stuff
a. Expertise = MORE deference
iii.Purpose of the provision and statutory scheme – broad policy or
just applic of rules to party at hand
1. Here it is not really policy with any broad implications –
they are just assessing his indiv case
a. Dealing with indivs rather then broad policy =
LESS deference
i. If dealing with indiv party ints, the ct is
essentially in the same position as the trib
ii.If it is a poicy type, then the trib would
have more expertise and knowl regarding
the implications
iv.Nature of the error
1. Here the error is MIXED
a. Mixed does not really push in either direction
regarding deference
v.(Baker consideration) Discretionary decisions
1. Here it is a discretionary decision – discretion of Minister
a. Discretionary decision = MORE deference
vi.Based on this analysis, we would choose REASONABLENESS
as a SOR (cite Dunsmuir)
1. If it is ambiguous at all – choose reasonableness
a. Especially if it is a discretionary decision – cts will
try to show as much deference as possible
2. Correctness is a very strong standard
a. If this was not a discretionary decision and there
was not much expertise involved then you might
conclude that it ought to be a correctness
standard
c. Once we estab SOR – we need to ask whether the decision meets the
SOR – ie, here, was the decision reasonable
i. Was it reasonable to conclude that this guy who was tied to the
IRA in the 70s doesn’t really pose national security issues in
Canada? Is this a reasonable interpretation of what 10.1
requires to be considered a threat?
ii.This decision was a reasonable one overall
d. Therefore here, the govt has few options to do anything with the
decision that they are unhappy with – no remedy

Section A Part 2
Explain the admin law grounds avail to Mr. K to challenge the decision. Briefly explain the
procedure he would follow and the remedy he would seek
Decision = not to remove him from the list
Issues (avail admin law grounds to challenge the decision) here:
1. Procedure – decision here was made with a 1 par letter that told you very little 
these facts are directing you towards considering procedural issues
a. Here there is not really a statute to give us info about procedure so we must
go onto CL analysis
b. PF CL analysis:
i. Nature of the decision – does it resemble judicial/quasi judicial
proceeding

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 1. Here it is an applic being submitted – they don’t contemplate a
hearing, adversarial proceeding, etc.
a. Therefore does NOT resemble judicial or quasi
i. Therefore LESS proced entitlements
ii.Nature of stat scheme – is there appeal avail/finality of decision
1. No appeal talked about being avail here
a. Therefore MORE procedure bc no appeal avail
iii.Importance of decision
1. Impt decision here – therefore MORE procedural entitlements
iv.Legitimate Expectations
1. We don’t have info here and cannot say very much about this
factor
v.Choice of procedure of tribunal itself
1. Bring in case law here – charcolie, Arrard – these cases dealt
with info that was kept confidential on national security grounds
a. Here they said that they were going to keep the
proceedings confidential on National security grounds
i. Did not provide Mr. K very much info
b. Charcolie case – concluded that you cant allow nat
security to trump procedural entitlements
i. To the extent that you can accomodate both
concerns the trib is reqd to do so
1. In that case the trib had to provide special
council that would be privy to the
confidential info
ii.Salient diff – Charcolie dealt with impt deciosn
regarding deportation, here the issue is not as
signif as the conseqs of K not being able to fly are
not as serious as conseqs of being deported
c. The cases suggest that you cant just completely ignore
PF on account of National security concerns – some PF is
warranted here
vi.Charter s. 7
1. Some issue of liberty here
vii.CONCLUSION here is that some procedural entitlements are
warranted here (ie, this is not just a parking ticket)
1. He was treated as if it was just a parking ticket – next to no info
was given to him  he got virtually nothing procedurally
a. Therefore there are some grounds here to get the
decision reviewed
2. Substantive issue
a. Look at the statute and look at the provision pursuant to which the decision
was made and look at how the provision and the facts were interpreted and
see if there is any arg that there was a poss error of fact, law or mix
i. Here, 4.76 provides that if there is an IMMEDIATE THREAT TO AVIATION
SECURITY – strong lang
1. Mr. K only had financial ties to the IRA 40 years ago(he wasn’t
carrying a bomb or anything)
ii.Here there is an arg for an error of mixed law and fact – they have
interpreted K as a threat to aviation security
1. Law - Interpreting the words of the statute
2. Fact – interpreting K’s factual situation as an immediate threat
to aviation security
b. Establish SOR (cite Baker, Dunsmuir, etc)
i. Privative clause

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 1. No privitive clause here – therefore LESS deference
ii.Nature
1. Individual here – LESS deference – the ct can eval the
implications on the indiv just as well as the trib can
iii.Expertise
1. Here there is probably some expertise as it is stuff that cts
don’t deal with often
a. Therefore MORE deference
iv.Nature of the error
1. Here it is mixed error  therefore does not really push either
way
v.(BAKER) Discretionary decision?
1. Here there is not much discretion – it is not a discretionary
decision
a. Minister’s discretion is in whether there is a threat to
national security, not whether or not to put him on the
no fly list
2. Not discretionary = LESS deference
vi.HERE WE WOULD CHOOSE CORRECTNESS STANDARD
c. Therefore we ask: Was it correct for them to interpret this factual pattern as
constituting an immed threat to aviation security? (is this a correct interp of
the fact and the law?)
i. NO it was not correct - this guy is not an IMMEDIATE threat to aviation
security
d. DECISION NOT CORRECT and therefore there are grounds to get the decision
quashed
e. Remedy we would ask for would be certiorari – to get the decision
quashed/set aside

Section A Part 3
Explain the administrative law grounds available to Mr. K to challenge this decision
Decision = Minister declines to remove K from the specified person list
Issues (Available admin grounds to challenge the decision here):
1. Personal Bias – cite national energy case
a. She is making conclusions
b. This is not an objective decision of the case on its merits
c. She is not making decision with an open mind
d. Cite National Energy Board case (leading case for bias)– test for bias
i. Give lang from case for the test
e. Here there is clearly a reasonable apprehension of bias – stereotypes,
preconceptions, etc
f. Therefore procedure was inadequate as he did not get a neutral and impartial
decision maker and that is grounds for challenging the decision  inadequate
procedure

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