Professional Documents
Culture Documents
Admin Law Summary
Admin Law Summary
V PROCEDURAL FAIRNESS
- One of the implied conditions precedent to the existence of jurisdiction (condition II(ii) and the
following bullet above) if procedural fairness
- Ie a finding that a decision maker has not abided the principles of procedural fairness that
applied to him the specific matter in question, will result in any action taken as being ultra vires
(and VOID)
- A highly variable standard; dependent on the context of the particular statute and the facts of
the case
- Decisions of a purely legislative nature do NOT attract a duty of procedural fairness
Procedural fairness – threshold
I HISTORICAL OVERVIEW
Pre-Cooper, classification of the function being performed by the decision-maker was crucial, ie hearing
requirements were only imposed for the exercise of judicial authority
- Problem: the courts didn’t adopt a consistent and clear definition of what constituted a judicial
(as opposed to an administrative) function
Martineau v. Matsqui Inmate Board: prisoner was disciplined and alleged he was not given a hearing
• Court sets out a spectrum analysis ranging from
- Purely ministerial decisions (generally less procedural fairness is afforded);
- Legislative functions (some procedural fairness may be afforded);
- Judicial decision making (a lot of procedural fairness afforded)
• Between the judicial decisions and those which are discretionary and/or policy-oriented are various
decision-making processes w/ a flexible gradation of procedural fairness
MINISTERIAL ------------------------------------------------------------------- JUDICIAL
(broad, polycentric, “legislative”) (affect individual rights)
Only right to respond / be heard Full panoply of
procedural protections
Cardinal v. Director of Kent Institution: criminal charges laid against hostage-taking prisoners and they
were placed in segregation. A Segregation Review Board recommended they be released but the prison
Director rejected recommendation
• The denial of a right to a fair hearing must always render a decision invalid, ie it cannot be argued
that relief should be denied on the basis that no hearing could affect the outcome
Dunsmuir v New Brunswick: Dunsmuir was employed ‘at pleasure’ (appointed by Cabinet) as a legal
officer by the Dept of Justice and employment was regulated ito private law and the Civil Services Act.
He had a dual role: ‘at pleasure’ meant he could be dismissed without notice or reason but he was also a
civil servant and the CSA prescribed that his tenure was subject to the ordinary rules of contract.
After a rocky relationship he was sent a termination letter with reasonable notice. Dunsmuir took
the matter to adjudication ito the Public Service Labour Relations Act. The adjudicator held he was
entitled to proc fairness and his denial of a meeting with his employer before being dismissed was
unlawful
• Whether a duty of proc fairness exists depends on the facts in consideration of the substantive
rights of the parties set down by applicable law
• The distinction between public office-holders and public contract workers / ‘statutory employees’ is
irrelevant wrt the duty of fairness; whether a duty of proc fairness exists depends on the nature of
the relationship btw the parties(rejecting Knight v Indian Head School, that only public office
holder’s have recourse to CL fairness where the applicable law leaves him without any protection)
• In determining the nature of the relationship one must take into account legal context (relevant
statutes AND contracts [AND Charter]),
- Where fairness is prescribed those prescriptions must be given effect to, to the exclusion of the
CL public law duty of fairness
- CL duty of fairness will apply where (i) there is no contract or contract does not offer any
protection; or (ii) where contract/statute necessarily implies a duty of fairness (with the extent
determined by the wording and context)
- Where private obligations of fairness are not performed in good faith, private law remedies
apply (in employment context by increasing required notice)
• A public authority which dismisses an employee pursuant to a contract of employment should not
be subject to any additional public law duty of fairness
- If the Crown is acting as any other private actor would in hiring its employees, then it follows
that the dismissal of its employees should be viewed in the same way, ie contractually
II(1) Emergencies:
• Whether the action is justified without a hearing depends on an assessment of whether there was
genuinely a need for such action. It is likely that the court will pay considerable deference to the
authority’s judgement as to the urgency of the situation (Mullan)
Can. Association of Regulated Importers: Minister changed quota distribution system for the
importation of eggs which significantly affected historical importers without notice. A small group
claimed they should have been consulted
• The Minister’s decision was essentially a legislative or policy matter (to which the rules of natural
justice do not apply and w/ which the courts will not interfere)
• Confirmed in Wells v Newfoundland
II(5) Decisions Affecting Rights, Privileges, or Interests
Re Webb and Ontario Housing Corporation: The Webb fam applied for and were granted tenancy in
rent controlled apartments. The property managers recommended termination of their lease b/c of
problems caused by Webb’s kids. After notice, OHC officials approved, and her lease was terminated
• The threshold for proc fairness no longer depends on a distinction btw rights and interests, although
the content of the duty does
• Applicants for privileges are not entitled to proc fairness but once granted they have an interest
- Once Webb became a tenant and qualified for & received the benefit of reduced rent, she had
an interest not just a privilege and OHC was under a duty to act fairly [progressive decision,
holders of state assistance entitled to proc fairness]
Hutfield v. Board of Fort Saskatchewan Gen. Hospital: Dr Hutfield applied for hospital privileges which
was rejected by the Hospital Board. He applied again, unsuccessfully asking to make submissions to the
Board, and was rejected without reasons
• A distinction should NOT be drawn wrt proc fairness in the case of modifying or extinguishing
existing rights & interests and in the case of an application for a permission or consent not
previously enjoyed
• 3 additional elements support a duty to act fairly in the case of a prospective privilege: (i) where the
decision involves facts or mixed fact & opinion (eg investigation of credentials, training, suitability,
experience, and references); (ii) where a refusal casts a slur on the applicant’s reputation or financial
stability; (iii) where the general interests of the public are affected by the decision (eg refusal of
hospital privileges impairs his ability to provide the level of medical treatment that his license
entitles the public to assume he has)
Baker v Canada: the fact that a decision is administrative and affects the right, privileges, or interests of
an individual is sufficient to trigger the application of the duty of fairness
Moreau-Berube v New Brunsiwick: the duty to act fairly applies to all administrative bodies acting
under statutory authority
Re Abel and Advisory Review Board: Advisory Review Board conducted annual reviews of those
psychiatric patients who had been discharged from criminal charges by special verdict of insanity and
submitted recommendations to the LG who would take the final decision. Lawyers for patients asked
for disclosure of patient files, reports given to the Board etc. (proc fairness)
• Re non-dispositive nature of the Board’s report
- The proximity b/n the preliminary decision maker or investigator and final decision maker is
critical in determining whether there is a duty of fairness
- Although the LG is not bound to act on the recommendations in the Board’s report, the pt.’s
only hope of release lies in a favourable recommendation by the Board – rubber stamping
Reference re Canada Assistance Plan: a Fed welfare scheme authorized the federal government to
enter into agreements w/ provinces for sharing of costs of provincial social assistance & welfare
programs. When Fed introduced a bill that capped its financial contribution, Provs argued it was
unlawful b/c it violated a legitimate expectation
• The doctrine of LE can only produce more fairness
• No substantive relief and cannot fetter the decision following the representations or consultation
Furey v. Roman Catholic School Board: Board decided to close an elementary school under its
jurisdiction w/ notice even after it had some years earlier issued guidelines est a process to be followed
in the case of closings.
• Court of Appeal court was unable to find any evidence that the residents believed past practice
would be followed in this instance
- Must be a reasonable expectation for LE
Mount Sinai Hospital v. Quebec (Minister of Health & SS) (SCC, 2001): Hospital was planning on moving
to another location and Minister agreed that if the hospital was relocated, he would issue it a license for
the new premises. When it sought to have its license updated, it was refused
• LE looks to the conduct of a govt actor, not the nature of the applicant’s interest
• An applicant who relies on the doctrine of LE may show, but does not have to show, that he/she was
aware of such conduct, or that it was relied on w/ detrimental results
- The focus is on promoting regularity, predictability, and certainty in govt’s dealing w/ the public
- LE based on narrower requirements than estoppel and can operate as a cause of action
• Public law estoppels requires an appreciation of the legislative intent behind the power attempting
to be estopped
- Public interest may override establishing estoppels
- [doubtful you could estopp if it meant the ADM doing something illegal or ultra vires]
CUPE v. Ont. (Ministry of Labour): ON. hospitals and nursing homes had to resolve labour disputes
according to the Hospital Labour Disputes Arbitration Act; practice had usually been to appoint mutually
acceptable arbitrators for resolution of disputes during the life of the CA. Minister appointed 4 retired
judges, but they were not chosen by mutual agreement and unions not consulted. Unions complained
that appointees lacked expertise, tenure, experience and independence from government.
• A general ambiguous promise does not suffice to trigger the doctrine of LE
- There was no unequivocal set past practice – the promise to return to past practice was open to
interpretation – and the union and Minister had diff interpretations
- A promise must be clear and unambiguous to trigger the doctrine of LE
IV CONSTITUTIONAL DIMENSIONS
• If BoR or Charter rights are concerned (govt official is dealing with a pvt person) the ADM must
conform with the Const
- Charter applies to exec action taken pursuant to leg authority via s 32
- Section 32 means the charter applies to any statutory authority including regulations, bylaws,
orders, decisions, etc. (Douglas/Kwantlen Faculty Assoc v Douglas College; Slaight
Communications v Davidson; Eldridge v BC)
- Since Parliament cannot enact laws contra the Const, all AA must conform with the Charter
• Esp nb when dealing with ‘due process’ ito BoR s 1() and ‘fundamental justice’ ito Charter s 7 – both
of which incorporate elements of natural justice
• Once a claimant shows a Charter breach (eg deprivation of LLSP AND no FJ) the onus is on the govt
to prove justifiable ito s 1
Authorson v Canada (Attorney General): Bill of Rights: A disabled veteren challanged a provision in the
fed Dept of Veteren Affairs Act that barred any claim to interest on moneis held by teh Dept obo
disabled veterens in clear and specific language. The Crown was collecting on his (and others’) behalf
while he was incompetent but when he became competent the Crown only paid over the principal. The
Crown was under a fiduciary duty to pay interest on veterns’ pension funds but it was extinguished by
the statute.
• A property claim
- Charter s 7 cannot help; does not protect property rights
- BoR s 1(a) means he is enttled to ‘due process of law’ if deprived of ‘enjoyment of property
rights’
• Due process in the context of a legislative body means the decision maker (Parliament) is bound
only by self-imposed procedural (manner and form) restraints on its enactments (ie 3 readings in
both houses and Royal assent)
- the courts will not impose additional requirements
- normal Parliamentary procedure is all that is reuqired for Palirament to take away indiv rights;
no fair hearing is required
• s 1(a) does NOT entitle a claimant to substantive due process, ie expropriation only with
compensation
Singh v. Canada (Minister of Employment & Immigration): maj = Charter / dissent = BoR: Minister,
acting on advice of the Refugee Status Advisory Committee, determined certain refugees were not CAT
‘convention refugees’. They were denied an appeal b/c the board determined on the material
submitted that there were no reasonable grounds for believing that they could establish their claims
They claimed that the statutory scheme infringed Charter s 7 (life, liberty,… fundamental justice) b/c
at no point in the process were they given a chance to be heard or to know the case against them
Majority (Wilson J):
• The Act precluded the CL duty of fairness
- [They could only succeed if Charter or Bill of Rights requires the court to override Parliament’s
decision to exclude procedural fairness]
- [The Charter allows you to attack the legislative scheme in place; the common law duty of
fairness only allows you to attack the decision-making process]
• The refugee scheme violated the appellant’s right under the Charter s 7
- Fundamental justice includes procedural fairness at a minimum [ie CL rights the minimum but
more can be obtained ito Charter]
- Hearings based on written submissions may be satisfactory in some but not all cases; an oral
hearing is necessary where there is a serious issue of credibility
Dissent (Beetz J):
• We should look to the Bill of Rights b/f looking to the Charter
- Apps were denied their right to a fair hearing in accordance w/ the principles of fundamental
justice under s 2(e) of the Bill of Rights
- The principles of fundamental justice will NOT impose an oral hearing in all cases – the most nb
factors in determining the procedural content of fundamental justice in a given case are (i) the
nature of the rights at issue; and (ii) the severity of the consequences to the individual
Chiarelli v Canada (Min of Jutice): C was a permanent resident about to be deported after being
convicted of a crime. His appeal was lost after investigations into him being an organized criminal by the
Security Intelligence Review Committee. The relevant Act provided that he could be present at the
Committee’s proceedings but not have access to or comment on any representations made
• In assessing whether a procedure accords with fundamental justice it may be necessary to balance
the competing interests of the sate and the individual
Wilson v. British Columbia (Medical Services Commission): the Medical Services Commission
established a scheme for limiting the numbers of practicing doctors and restricting the geographic areas
of their practices in order to control total costs of health services and ensure the appropriate allocation
of doctors throughout the province
• ‘Liberty’ is NOT confined to mere bodily restraint – it may embrace individual freedom of movement,
including where to pursue one’s occupation, subject to reasonable and legitimate restrictions on
individuals imposed by the state (ie fundamental justice or demonstrably justified under s. 1)
• Here, the scheme was not justified by principles of fundamental justice b/c it was based on vague
and uncertain criteria, which combined w/ areas of uncontrolled discretion, leaves room for
arbitrary conduct
• ‘Liberty’ does not encompass a right to work, but it does include a right to follow one’s chosen
profession
New Brunswick (MOH & Comm. Services) v. G.(J.): Minister sought to extend a judicial order granting
the Minister custody of the appellant’s 3 kids for an additional 6 months
• ‘Security of the person’ protects both the psychological and physical integrity of the individual
- For admin action to restrict security of the person, the impugned state action must have a
serious and profound effect on the person’s psychological integrity
- The effects of the state interference must be assessed objectively w/ 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
Blencoe v. British Columbia (Human Rights Commission): while serving as Minister in BC, the Resp was
accused of sexual harassment; Premier removed him from Cabinet and dismissed him from caucus.
Hearings were scheduled before the BC Human Rights Tribunal over 30 mos. after the initial complaints
were filed and things descended into a media circus. Resp alleged that the unreasonable delay caused
serious prejudice to him and his family that amounted to an abuse of process and a denial of natural
justice
Majority (Bastarache J):
• The Charter does apply to all entities created by statutes
- Being autonomous or independent from government is not a relevant consideration.
Independent bodies may still be implementing a govt programme
• Section 7 encompasses 3 distinct interests
- Life: irrelevant here
- Liberty: much broader than physical restraint; can apply where state policies affect personal life
choices
- Security of the person: only stress that is (i) serious; and (ii) caused by the state can violate
security of the person.
This was not caused by the state; in administrative proceedings, it is a citizen making the
allegation and the state is resolving the complaint (cf. criminal proceedings). Protection of
reputation and freedom from stigma are values that must guide courts in their interpretation of
the Charter but are not serious enought to be freestanding rights under s. 7
• Court also concludes that there was no abuse of process (not a Charter infringement but significant
enough to entitle a stay)
- To amount to an abuse of process, the delay must be clearly unacceptable and have directly
caused a significant, actual prejudice of such magnitude that the public’s sense of decency and
fairness is affected.
Dissent (LeBel J.):
• Focused on the impact of the delay on B’s life, not on his hearing – career finished, family chased
across the country, clinically depressed, couldn’t coach kid’s soccer team
• Abusive administrative delay is wrong; it doesn’t matter if it wrecks your life or your hearing
Duty of fairness – content (choice of procedures)
• Once the threshold for the duty of fairness is crossed, we must consider the content of procedural
entitlements
• Notice? Access to evidence? An oral hearing? Counsel? Cross-examination? Reasons?
• All of the circumstances must be considered in determining the content of the duty of fairness.
• Court provides a non-exhaustive list of factors to be considered in context of circs
- Underlying all these factors is the notion that the purpose of the participatory rights contained
w/in the duty of fairness is to ensure that admin decisions are made using a fair & open
procedure with an opportunity for those affected by the decision to put forward their views and
evidence and have them considered by the decision-maker
• Factors affecting the content of the duty of fairness
(i) The nature of the decision being made and the process followed in making it-
- Considerations = the process provided for, the function of the tribunal, the nature of the
decision making body, and the determinations that must be made to reach a decision.
- The more these resemble judicial decision making, the more likely it is that procedural
protections closer to the trial model will be required by the duty of fairness.
(ii) The nature of the statutory scheme & the terms of the statute pursuant to which the body
operates-
- Greater procedurla protections will be required when the statute does not make provision
for appeal procedures
(iii) The importance of the decision to those affected by it
- The greater the impact on the person(s) affected, the more stringent the procedural
protections that will be mandated
(iv) Any legitimate expectations-
- If the claimant has an LE that a procedure will be followed, this procedure is required by
the duty of fairness.
- If a claimaint has an LE of a certain reuslt, more extensive procedural rights may be
required [but NOT substantive relief]
(v) ADM’s choice of procedure (not determinative, but nb)-
- Especially relevant when the statute admits the ADM discretion or when it has an expertise
in determining what procedures are appropriate in the circumstances
Ahani v. Canada (Minister of Citizenship and Immigration): Ahani (citizen of Iran) entered Canada and
was granted Convention refugee status. He was informed of the minister’s intention to issue an opinion
(w/ the intention of deportation) and was given the chance to make submissions. He filed an application
for judicial review of the minister’s decision challenging the constitutionality of the Act. He claimed that
if sent back to Iran, he would likely face torture.
• Applying the framework from Suresh, the Court held that he failed to clear the evidentiary threshold
required to access s. 7 protection (a prima facie case)
• Unlike Suresh, A was fully informed of the allegations against him and was provided with the
opportunity to make written submissions.
Canada v. Krever Commission: Rising incidents of HIV and Hepatitis C from tainted blood prompted
federal & provincial ministers of health to convene an inquiry to examine the blood system holding
extensive hearings. On the final day of hearings, the Commission sent out confidential notices to blood
system participants (path labs etc.) that the Committee might reach specific conclusionsafter the inquiry
and that those conclusions might lead to findings of professional misconduct. Issue was whether the
Commissioner failed to provide adequate procedural protections or by the timing of the release of the
notices
• Timing:
- Timing of notices depends on the circumstances of the case (criminal, admin etc.)
- The more extensive and complex the evidence is, the more likely the notices will be closer to the
end of the inquiries
- The notice must be given long enough before the date of the proposed hearing to give the party
enough time to decide whether to participate or to prepare
• Content:
- Notice must provide enough info about the issues to enable the party to respond in a
meaningful way
Ont. (HR Comm.) v. Board of Inquiry (Northwestern Gen. Hosp.): Board of inquiry set up under Ontario
HR Code to hear complaint of racial discrimination made by 10 nurses. Board was ordered by the
Commission to provide the respondents w/ the statements and identities of the complainants and
witnesses interviewed. Board applied for judicial review of the order – arguing that the documents
were privileged (produced or obtained for litigation purposes)
• Court held that the combination of sections 8 and 12, SPPA amounts to a recognition of the
Stinchcombe principles in appropriate administrative contexts, ie complete subject only to privilege
or irrelevance
• Rationale for disclosure:
- Justice is better served when the element of surprise is eliminated and the parties are prepared
to address issues on the basis of complete information of the case to be met
- The fruits of the investigation are not the property of the Commission, but the property of the
public to be used to ensure justice is done
CIBA-Geigy v. Canada (Patented Medicine Prices Review Board): CIB was being reviewed by the Patent
Board for selling its drugs at an excessive price. Board’s chairman, under statutory authority, reviewed
report from Board staff on the pricing issue to decide whether a formal hearing was to be held. Under
the statute, CG could ask for disclosure of all documents relied on by Board staff in making the report
but Board refused.
• Distinguishes criminal/human rights context from economic regulatory context
- There are serious eco consquences here BUT no power to affect human rights in a way akin to
criminal proceedings
May v Ferndale Institution: the Correctional Service of Canada used a computer programme to
formulate a score for inmate determining their appropriate security level. May was transferred from a
minimum to medium-security institution (more restrictive of liberty). He applied to for habeas corpus to
go back to which end he also applied for a certiorari for the scoring matrix. Corrections and Conditional
Release Act required the ADM to give all the information to be considered in the taking of the decision a
reasonable period before it is taken
• The Stinchcombe principles do NOT apply in the administrative context.
• In the administrative context, the duty of procedural fairness generally requires that the ADM
discloses the information he or she relied upon; the requirement is that the individual must know
the case he has to meet
• Outside Stinchcombe this means the ADM must comply with statute and CL proc fairness
- The CCRA imposes onerous duties of disclosure on ADMs
- Considering the legislative scheme, the nature of the undisclosed information and the
importance of the decision for the appellants, there was a clear breach of the duty to disclose to
the level reuqired by the statute
III(3) Delay
Kodellas v Saskatchewan:
• Whether a delay is unreasonable for the purposes of s 7 depends on a number of factors
(i) Whether it it prima facie unreasonable
(ii) The reason for the delay having regard to the conduct of the complainants
(iii) The prejudice or impairment caused by the delay
(iv) Not numerus clausus
Masters v. Ontario: Ont. agent general in NYC (appointed under premier’s prerogative power) faced
allegations of sexual harassment. An external investigation was requested by premier and found that M
had harassed 7 women. M took a financial settlement and resigned instead of being reassigned a
position. M then claimed there was a breach of natural justice b/c he was not given access to docs and
witnesses were interviewed without M or his counsel and said there should have been an oral hearing at
which he could interview the complainants
• Oral hearing: Court applies the factors from Baker
- Nature of decision was discretionary (prerog power) so less procedural protections (Martineau)
- Decision maker’s choice of procedures was investigatory not determinative (less procedural
protection) (Inuit Tapirisat)
• Refusal of access to documents rule:
- An investigator is not obligated to give every detail of what he receives but rather must only
ensure that applicant has disclosure of the substance of the accusation against him.
Khan v. University of Ottawa: K appealed a fail grade, which resulted in her failing the entire semester.
In the exam she had extra time so in ‘book 4’ she supplemented her answers in ‘book 1-3’. No bok 4
was found. A Committee met to decide on failures, and dismissed her without a hearing.
Majority (Laskin JA.):
• Oral hearing
- Where (i) credibility is an issue (only her word to say she wrote a 4th book); and (ii) seriousness
of consequences (loss of an academic year by a failing grade can delay, if not end, the career for
which the student is studying)
• Content of oral hearing
- should incl an opportunity to appear, make oral reps, and correct/contradict circumstantial
evidence on which the decision would be based
Dissent (Finlayson JA.):
• Credibility was not an issue; consequences were not serious (there was no s 7 right at stake) and K
could complete her education so long as she did one extra semester, which was not serious (less
procedural fairness)
III(5) Open Hearings (In-Hearing)
SPPA, s 9: Presumption in favor of openness and creates specific considerations that are to form the
basis of any decision to proceed in camera in whole or in part.
• Decision to hold an in camera hearing is still left to the discretion of the tribunal
• Factors that tribunals consider:
- Privacy of the victims
- Ensuring that witnesses will be willing to testify
- National security or commercial competitiveness (if these are issues)
- Freedom of the press and other Charter rights (Pacific Press)
- Protecting the reputation of the accused (more common justification to keep in camera
proceedings in professional misconduct hearings)
- Alternatives to in camera hearings: publication bans, testifying in private, etc.
Re Mens Clothing Manufacturers: labour context. For decades disputes in Toronto’s mens clothing
industry were resolved by arbitration w/o lawyers. After a particular grievance a TU wanted counsel
• No absolute right to counsel at CL
• Where a dispute is dependent on law (statute, arbitration agreement), whether counsel are allowed
is determined by the words of that law
• If a person (NP or JP) is entitled to be represented, they are entitled to be represented by a person
of their choosing
• Where JPs are involved, to deny the right to counsel would deny the right to select the agent of
choice, esp a particular class of persons widely retained for such purposes in other industries
• If one party is entitled to counsel, the other must be ipso facto
Re Parrish: ship captain summoned before an investigator of a statutory board after crashing a ship. He
appeared with two counsel but the investigator refused to admit them, even after allowing previous
members of the crew, and the Cpt refused to testify
• Right to counsel required where words of statute, or its practical application, indicate
(i) Individual is subpoenaed, required to attend, and testify under oath with a threat of penalty-
(ii) Absolute privacy is not assured and the attendance of others is permitted
(iii) Where reports are made public
(iv) Potential to be deprived of rights or livelihood
Howard v. Stony Mountain Institution: prison context. Hearing held to decide charges against a
prisoner under the Penitentiary Service Regs. which could result in a loss of earned remission days and
punishment in the form of solitary confinement
• Rationale = opportunity to adequately present one’s case
• At common law
- No absolute right to counsel – there is only a discretion on the part of the tribunal that can be
exercised to allow a prisoner to have a right to counsel.
• Charter, s 7
- Creates a non-absolute right to counsel
- TEST: Whether a person has right to counsel depends on a non-exhaustive list of factors
(i) Circumstances of the case: the need for reasonable speed in making their adjudication and
the need for fairness between the parties
(ii) Seriousness of the charge and of the potential penalty
(iii) Nature of the case: Is it a question of law (greater right to counsel) or fact?
(iv) Complexity of the case: Are there any procedural difficulties?
(v) Capacity of the party to understand the case and present his defence himself.
- NOT a matter of discretion (as under CL) but a matter of right where the opportunity to present
the case adequately calls for a right to counsel.
- But where the circumstances do not point to a breach of fundamental justice (eg change in
terms of sentence), the effect of the law may may still affect residual liberty (not liberty per se
but the conditions of liberty) and therefore require greater proc fiarness in the form of counsel
NB (MOH and Community Services) v. G.(J.): parent-child context. A policy under the Legal Aid Plan
(under the Legal Aid Act) prohibited the granting of legal aid certificates in custody-order renewal
proceedings. Issue was whether s 7 of the Charter required that a mother be provided with counsel to
resist an application by the Child Welfare authorities for renewal of an order placing her 3 children in
the custody of the state.
• A parent need not always be represented by counsel in order to ensure a fair custody hearing.
• 3 factors to determine if a party has a right to counsel:
(i) Seriousness of the interests at stake (directly proportional): obviously serious
(ii) Complexity & adversarial nature of the proceedings (directly proportional): procedure to resist
application included adducing evidence, cross-examining witnesses, expert testimony etc
(iii) Capacities of the individual (inversely proportional): intelligence, communication skills,
composure, familiarity w/ the legal system
Township of Innisfil v. Township of Vespra: Town of Barrie applied to annex 3 adjacent townships to
house a projected population. The amount of land was based on a formula, the use of which was
approved by the gov/t. A dispute arose and at the hearing a letter from the minister was introduced as
proving the required amount of land
• An ADM intending to use an independent, extra-curial decision of fact must give parties notice and
an opportunity to respond to it
Lawal v. Canada (Minister of Employment & Immigration): after the conclusion of oral hearings, an
immigration panel took official notice of a newspaper article. It was forwarded the applicant but the
panel did not reopen the hearing. Panel relied on s. 68(4), Immigration Act that allows the panel to take
notice of facts that may be judicially noticed & other generally recognized facts
• The material was not properly the domain of judicial notice, it was not generally recognized fact
• s. 68(4) (and arguably official notice in general) does not extend to adjudicative facts.
III(9) Admissibility of evidence (In-Hearing)
• RULE: Agencies are NOT governed by formal rules of evidence used by courts unless some statutory
provision requires them to (and such provisions are rare)
• An administrative body’s rules of evidence will be determined by,
(i) The body’s empowering legislation; or
(ii) The SPPA, ss. 15(1), (2) [basically includes everything but privileged info and info excluded by
other statute
• Exception: Rules of natural justice may require an agency to abide by formal rules of evidence to the
extent that it allows a party to make his case (Miller v Min of Housing; Universite du Quebec v
Larocque)
Armstrong v. RCMP (FCA, 1998): Armstrong was subject to a inquiry for unsuitability; RCMP handed in
written evi and A did not cross-examine anyone. After the hearings phase, a sergeant wrote a memo to
the Board and on that basis the commissioner confirmed her discharge. Issue was whether sergeant’s
memo constituted new facts, opinions or material which Armstrong was not given an opportunity to
dispute?
• A right to a hearing is triggered where there is an exercise of discretion on the basis of facts
regarding the applicant and where he has not had an opportunity of stating his position with respect
to those facts, which in the absence of refutation or explanation would lead to a negative decision.
Township of Innisfil v. Township of Vespra: issue was whether the municipalities could cross examine of
the letter, ie that is was the correct determination
• Where the rights of a citizen are involved, SSPA, s 10.1(b) entitles him to a full hearing, ie incl cross
examination
• Only in the clearest of cases (ie clear statutory language) will the exec be able to give binding policy
directions on a tribunal
Armstrong v. RCMP: issue whether Armstrong denied natural justice as a result of not having the
opportunity to cross-examine the RCMP witness (the sergeant)?
• To waive a right a party must be clear as to the consequences of his or her act. By failing to ask for
the right to cross-examine, a party does not waive the right to cross-examine.
- The right to cross-examine is not absolute (Innisfil v. Vespra)
- [Where a statute is silent on the right to cross-examine, courts will generally be reluctant to
impose the right unless natural justice so requires]
• Factors militating towards a right to cross-examine include:
(i) where the evidence is contradictory or conflicting
(ii) where there is an attack on a party’s credibility
III(11) Limits of the Trial-Type Hearing
Thomas McGarity,
• Principle: Agencies should engage in formal trial-type hearings to enhance accuracy of factual
determinations
• Limiting factor: ‘transaction cost’ (i.e. reduced admin efficiency and increased expenses) may
outweigh any benefits derived from increased accuracy
• Factors for whether trial-type hearings are required:
- Value of the interest affected
- Degree to which inaccurate decision would affect those interests
- Likelihood that formal fact finding will reduce uncertainty on a certain issue
• Trial-type procedure is NOT useful for enhancing the accuracy of policy and scientific determinations
(it simply reveals the depth of disagreement)
Glen Robinson
• There is a general consensus that “policy” or “legislative facts” are not suitably considered in trial-
type procedures (e.g. cross-examination and testimony) b/c they are pure & uncontaminated by
questions, assumptions, opinions and biases
• This conclusion is INCORRECT
- Even legislative facts rest on general conclusions inferred from factual data and an evaluation of
probabilities
- Trial-type procedures can be valuable in testing forecasts and generalized conclusions
underlying policy decisions
• Advantages of subjecting policy decisions to trial-type procedures:
- allows one to probe inferences on which expert bases his interpretation
- exposes possible bias or lack of sound foundation
- puts burden on agency to explain the assumptions & foundations on which its policy rests
- prospect of having to justify policy decisions will result in more well thought out decisions
CC Johnston
• Recommendation: Where positions of the parties are clearly adversarial, (Telecoms Commission)
should adopt trial-type procedures (e.g. cross-exam)
- Rationale: With a trial-type procedure, the parties are not restrained from fully presenting their
case AND Commission is not deprived of evidence that is useful for decision-making.
• Disadvantages of using trial-type procedures:
- Too time-consuming
- Reduce public participation b/c too intimidated by formal rules
- Procedure will be ripe with technicalities – reduce interplay of ideas b/n agency & parties
III(12) Reasons (Post-Hearing)
Once we pass the threshold question of whether there is an obligation to provide reasons, we move
onto determine the content of the duty
Via Rail Canada Inc. v. National Transportation Agency: Wheelchair athletes traveled w/ VIA and
according to the tariff, people who needed to assist them traveled for free. The athletes encountered
significant obstacles wrt accessibility of VIA’s services. A complaint was made to National Transportation
Agency which determine that allowing an attendant to ride free did not relieve VIA from its
responsibility to ensure that passengers with disability can board and de-board its trains.
• RULE: Duty to give reasons is only fulfilled when the reasons provided are adequate
• Test for adequacy: Do the reasons provided reflect the purposes for which a duty to give reasons
was imposed?
Purposes are reflected when:
- The decision-maker sets out findings of fact and the evidence on which those findings are based.
- The reasons address the major issues.
- The reasoning process is set out & reflects the consideration of relevant factors.
I INTRODUCTION
• Basic Principle: Decision-makers should be unbiased
• Policy rationale:
- Nemo judex in sua causa, ie no one should be the judge in his own cause OR be in association
with any of the parties to the proceeding
• Baker v Canada: Nemo iudex applies to all persons who play a signifianct role in the making of the
decision, not just the final person
Imperial Oil v. QB (MOE): IO caused env. pollution so the Minister ordered it to prepare a
decontamination measure study at its own expense. IO argued bias b/c the Minister was involved in
prior decontamination work and was being sued by the present owners of the land.
• The contextual nature of the duty of impartiality adjusts to reflect the context of a ADM’s activities
and the nature of its functions:
(i) Nature of the functions to be performed: the Minister is performing a mainly political role
which involves his authority & duty to choose the best course of action in the public interest;
he is not performing an adjudicative function; on the contrary he is performing functions of
management.
(ii) Legislature’s intention: legislation defines Minister’s role as requiring him to give notice to the
person, receive and review representations and info submitted by that person and give
reasons to that person for his decision.
(iii) Nature of the personal interest: Any interest they may have had in recovering the costs of the
proceedings was too remote and attenuated to give rise to a reasonable apprehension of bias;
the only interests the Minister was representing were the public interest and the interest of
the state in protecting the env/t.
• Duty of impartiality applying to the Minister in this case is NOT equivalent to the impartiality
required of a judge or adjudicative admin ADM
II(6) Institutional bias:
Quebec Inc. v. Quebec (Regie des permis d’alcool): Registrar of Alcohol Permits revoked company’s
liquor permits for violations of statute. Company sought declaration that the statute was invalid on the
basis of s. 23 of the QB Charter of Rights, which required tribunal that was judicial or quasi-judicial to be
impartial.
• Factors to be considered:
(i) Authorization in statute allowing a degree of institutional characteristic
o Silence in legislation regarding authorization of institutional bias will raise reasonable
apprehension of bias
- RULE: If the legislation in question leaves open the possibility that the tribunal may not
act independently, it is necessary to consider how the tribunal operates in practice
o Are there any constitutional or quasi-constitutional protections that apply?
- If yes, even if there is express legislative authorization of bias, it must still not violate the
rights endowed in constitutional or quasi-constitutional documents
(ii) Circumstances of the case
o Involving one of the parties to the proceedings in the decision-making process privately
(during or after the hearing) will raise a reasonable apprehension of bias
(iii) Nature of the decision to be made
o Judicial or quasi judicial body = low threshold (higher standard)
o Admin tribunal = high threshold (low standard)
(iv) Duties of the admin agency other than adjudicating the dispute
o Plurality of function in a single admin agency is not enough to raise reasonable apprehension
of bias BUT excessive close relations among members in different stages of the process may
be
(v) The operational context as a whole
o The lack of separation of function by the same jurist will raise a reasonable apprehension of
bias.
o Functions of prosecutor and adjudicator cannot be exercised together.
Wewaykum Indian Band v. Canada: In 1985, the Campbell River Band brought legal proceedings against
another band and the Crown, claiming exclusive entitlement to reserves on Vancouver Island. Some
year earlier Binnie J. was Associate Deputy Minister of Justice at the DOJ – internal memoranda
indicated that Binnie had received info concerning the Campbell River Band’s claim and that he attended
a meeting where the claim was discussed. The SCC (Binnie J. writing for a unanimous Court) dismissed
the band’s claim. The band alleged that Binnie J.’s involvement gave rise to a reasonable apprehension
of bias
• The general rule is that the bias of one decision maker will taint the impartiality of other decision
makers (Baker) so: two stages
(i) Individual bias
(ii) Impute to other decision makers
• Individual judicial bias
- A judge’s impartiality is presumed; training etc.
- Test for judicial bias: well informed RP + thought matter through + fact that judge presiding
could est a reasonable apprehension of bias
- Application: no bias b/c his involvement was limited and supervisory, he was responsible for
thousands of files at the relevant time, and long time ago
• Institutional bias
- Exception to Baker-rule in the case of the SCC: no reasonable person informed of the decision-
making process of this Court could conclude that 8 other judges who heard the appeals were
biased or tainted; judges prepare independently, express indep opinions, decisions on who will
prepare draft reasons
III INDEPENDENCE
• Principle of judicial independence: complete liberty of individual judges to hear and decide cases
• Also depends on the Committee for Justice and Liberty GENERAL TEST: well informed RP + thought
matter through + reasonable apprehension of bias
• Independence has 2 aspects (R. v. Valente):
1. Institutional independence – the extent to which the governing statutory scheme (for a
particular tribunal) renders the tribunal free from external control or influence
2. Individual independence – as question of impartiality: the extent to which individual tribunal
members are free to adjudicate w/o undue influence
• Independence is on spectrum: the more adjudicative, the more independence that is warranted;
the more policy driven, the less independence involved
• If the relevant statute clearly authorizes the existence of a statutory scheme that does not meet
appropriate standards of independence for the tribunal in question, there will be no remedy
available unless those affected can rely on a constitutional or quasi-constitutional argument; Ocean
Port v. BC
NOTE: The general rule (as seen in Baker) is that the bias of one decision maker will taint the impartiality
of other decision makers. However, Wewaykum carves out an exception in the case of the Supreme
Court of Canada.
Canadian Pacific Ltd. v. Matsqui Indian Band: The Indian Act allowed bands to levy tax on people using
the reserve. A tribunal was established for reviewing these levies. Members of the tribunal could but
need not be paid and had no tenure in office. Band members were eligible appointees. CP argued that
tribunal members lacked independence (i.e. there was a reasonable apprehension of bias) b/c the
tribunal members (may not be paid, no security of tenure, appointed by Band Chiefs
• test for institutional indep: whether a reasonable & right-mind person, viewing the whole
procedure, would have a reasonable apprehension of bias on the basis that tribunal members are
not independent
• contextual
- Higher level of independence & more strict application of Valente criteria when tribunal (i)
judicial in nature and (ii) affects security of person
- Lower level of independence & more flexible application of Valente criteria when (i) polycentric
in nature and (ii) relating to a property right
• NOT ALL 3 Valente principles are required in order to satisfy the test for independence.
Quebec Inc. v. Quebec (Regie des permis d’alcool): a statute may authorize institutional bias, eg the
implementation of govt policy. If it is silent on the point, it is necessary to consider how the tribunal
operates in practice
Bell Canada v. CTEA: Bell employees filed complaint at HRC against Bell. Bell brought a motion arguing
the HRC was not indep because (i) its guidelines gave rules wrt ‘a class of cases’ fettered it; and (ii) the
tribunal chair power to members’ terms in ongoing inquiries wasn’t enough security of tenure
• There should be a high degree of independence; the tribunal exercises adjudicative function but
also implements the policy of govt (ie doesn’t have to be impartial in that respect)
• However, neither of the 2 powers challenged by Bell compromises the procedural fairness of the
tribunal.
- Guidelines are law and being fettered by law cannot amount to partiality
- Extension of tenure is to finish current inquiries and no RP would see this a way for the
Chairman to pressure Committee members
CUPE v. Ont. (Ministry of Labour): ON. hospitals and nursing homes had to resolve labour disputes
according to the Hospital Labour Disputes Arbitration Act; practice had usually been to appoint mutually
acceptable arbitrators for resolution of disputes during the life of the CA. Minister appointed 4 retired
judges, but they were not chosen by mutual agreement and unions not consulted. Unions complained
that appointees lacked expertise, tenure, experience and independence from government.
• The tribunal DOES NOT lack independence b/c:
Labour arbitration is not characterized by financial security or security of tenure beyond the life
of the arbitration
o Chosen to be so by legislature
o Historically always done this way – deference to this
Independence of arbitrators is guaranteed by training, experience and mutual acceptability
o Since legislation requires appointment of people w/ the above characteristics, the proper
exercise of the appointment process would satisfy concerns about institutional
independence
o Retired judges as a class have no greater interest than other citizens in arbitration
outcomes and there is no reason to think they would exercise their power impartially in
order to secure further appointments
• The tribunal members DO NOT lack impartiality (no reasonable apprehension of bias) so there
cannot be institutional bias
Institutional decision-making
I DELEGATION
• Definition: Delegation means conferring of an authority to do things which otherwise that person
would have to do himself.
- Delegation typical of large admin organizations often employing hundreds of staff, making
thousands of decisions, and having to work in teams to deal with a range or complex matters
• RULE: delegates non potest delegare – a delegate may not re-delegate.
• Exceptions to the rule:
(i) A tribunal or agency may still obtain opinions from someone else (i.e. fact finding may be
delegated) provided they comply w/ the duty of fairness;
(ii) If the body delegating the power exercises a substantial degree of control over the discretion
that it can be said to direct its own mind to the matter, there is no delegation in law
(iii) Delegation can be explicitly or implicitly permitted by the statute conferring the discretion
(language, purpose, etc.) – eg ‘Minister’s sole discretion” implies no delegation
• Balance: understand the administrative context of the decision and fashion the content of the duty
of fairness so as to retin its essential values and insights without depriving the agency of the
institutional means available to it to discharge its statutory mandate efficiently and effectively
Vine v National Dock Labour Board: NDL Board was responsible for allocating dock labourers to
stevedoring companies and had the express power to delegate its functions to local dock boards. Vine
did not show up to work, the company complained, and the local board dismissed him.
• Whether an ADM may delegate depends on (i) the nature of the duty and (ii) the character /
constitution of the ADM
- Nature of the duty was judicial (generally no delegation) and the constitution of the NDL Board
was to weigh fairly the interests of both employers and employed
- Only applies to discretionary decisions
Jeffs v New Zealand Dairy Production Board: the NZDP Board had power to establish cream factory
monopolies over certain dairy producing districts after ‘hearing’ the relevant parties. On a demarcation
of territory issue it set up a Committee to hear the matter. The Board accepted the Committee’s
recommendations without alteration and without hearing any evidence of the hearings. Farmers
complained
• Appointing another to ‘investigate’ (as opposed to ‘deciding’) is not a problem
• However, the automatic acceptance of the recommendation without a hearing - whether written or
oral (indicating they couldn’t have directed their own minds to the evidence) – is not
Tremblay v. Quebec: T was on social aid and sought reimbursed for dressing and bandages. The Min of
Labour and Soc Security refused so she appealed to the Commission. A two-member panel drafted a
decision in the T’s favor but the President of the Commission reviewed the draft, expressed
disagreement and called for consultation. At the consultation, the majority of members supported the
president’s position and one of the two panel members changed their decision. Due to a tie, the Act
stipulated that the President or VP acts as the tie-breaker and the decision went against T
• The general rule of deliberative secrecy is trumped where the litigant can show valid reason for
believing a breach of procedural fairness has occurred
• Various mechanisms prescribed in the consultation may exert undue pressure on decision makers
and ∴ did not satisfy the requirement of proc fairness:
- Automated process – meetings were held without the decision maker’s request
- Meeting includes votes to arrive at consensus (not just recommendation)
- Minutes taken
- President of the Commission expressed his opinion to the ADMs, inviting them to reconsider
there decision
• The President’s involvement was not just to offer an opinion – he called meetings b/c of his
disagreement and acted as the tie-breaker.
Ellis-Don Ltd. v. Ontario Labour Relations Board: A TU filed a grievance at the Ont LRB that the Ellis Don
subcontracted work to a non-Union subcontractor contrary to a collective agreement. A three-member
panel of the Board heard the grievance. The panel’s first draft decision would have dismissed the
grievance, however, after a full board meeting a majority of the panel upheld the grievance. ED alleged
that the change between the draft and the final decision was of a factual nature as opposed to a legal or
policy change, and claimed that there was a breach of natural justice. This was difficult to prove as the
tribunal was withholding information under the principle of deliberative secrecy.
• Case reveals a tension b/n the fairness of the process & the principle of deliberative secrecy
• Court concludes that here the principle of deliberative secrecy trumps fairness of process:
- Strong presumption in favor of regularity of the admin process
- Presumption will be rebutted if there has been a change of facts founding the reasons for the
decision (a change limited to questions of law & policy will NOT rebut presumption)
- Delib secrecy nb for independence and consistency
• Institutional consultation ensures consistency BUT will infringe fairness if
(i) the consultation proceeding is imposed by a superior level authority within the administrative
hierarchy;
(ii) the consultation is not limited to questions of policy and law; and
(iii) even on questions of law and policy, the decision‑makers must remain free to make their own
decision.
• Any risk of breaching fairness in consultation can be addressed by notifying the parties of any new
issue addressed in the board meeting and allowing an opportunity to respond.
Payne v Ontario (HRC): Payne claimed discrimination vs her employer and the Commission started an
investigation. The investigation staff recommended the Commission refer her complaint to a Board of
Inquiry. The matter was considered at 3 meetings of the Commission and it decided not to refer the
complaint. She had an affidavit of a former member of the Commission that it decided on inappropriate
grounds, but no evidence other than that. She asked for disclosure and production of facts
• deliberative secrecy of administrative decision-makers is not absolute, and must be balanced with
the right of the citizen who has been affected by the tribunal's decision to effective judicial review
• to overcome the presumption of deliberative secrecy, an applicant must present some basis for a
clearly articulated and objectively reasonable concern that proc fairness has been infringed
• Examinations based on conjecture or mere speculation are not to be allowed.
(ii) The preparation of reasons: question is how much reliance an ADM can place on counsel to
prepare reasons without breaching the duty not to delegate or creating a reasonable
apprehension of bias
- The decision made must be that of the tribunal members themselves; counsel should not
retire with them to deliberate or else create a reasonable app of bias
- The reasons of the ADM must be in substance its own not their clerks or counsels’
International Woodworkers of America: courts will not be overly critical of language employed
by discipline committees (ameliorate negatives of excluding lawyers)
Spring v LSUC: the LSUC Convocation adopted the reasons of the Discipline Committee and
disbarred Spring for conduct unbecoming. The Committee’s decision and reasons were
prepared by a clerk who was not a member of the Committee
• Held, the clerk merely acted as an amanuensis
• Dissent: the impact of the decision means a higher threshold of proc fairness is required
Khan v College of Physicians: Khan’s license was revoked after being found guilty of prof
misconduct but the Discipline Committee of the College. He argued that counsel played so
significant a role in drafting the reasons so as to create a reasonable app of bias. In consultation
with the Committee, counsel reviewed its first draft, which was sent back for further review and
revision before release to the College. The Committee said his advice was restricted to
journalistic and administrative assistance and did not involve ‘legal advice’
• Counsel can assist to accurately reflect the reasoning processes of the committee as long as
that influence did not extend to interfering with the freedom of the tribunal members to
decide independently
- the lawyer's involvement was under the control of the committee and could not have
had any coercive effect on the committee
- there was no evidence that it had any impact on K's ability to know the case against
him
- there was nothing in the drafting process followed by the committee to raise
legitimate concerns about its integrity.
(iii) Reasons review: where agencies draw up policies to which the reasons of ADMs must conform
Bovbel v Canada: Immigration and Refugee Board referred a draft of a its decision to counsel
ito an agency policy
• The existence of a policy does not per se violate proc fairness, although its content might
• Counsel’s involvement to ensure coherence of reasons is ok. If they were to discuss
findings of fact it would NOT conform with proc fairness
Bibeault: a janitorial contractor and schools run by the School Board were bound by a collective
agreement. The Board called for tenders after terminating its contract with a company whose workers
were on legal strike. A new company took up the tender and the union representing striking employees
argued that it was a ‘successor-employer’ ito the Labour Code and bound by the terms of the collective
agreement b/w the union and the original contractor. The Labour Relations Board held the successor-
employer bound. The issue was whether the LR Board acted outside its jurisdiction by holding that the
successor-employer provision applied.
• Court fully revived the error of juris / within juris dichotomy, the former requiring correctness
review and the latter patent unreasonableness
• Recognized the difficulty in distinguishing of juris and in juris errors so did not define it ito
preliminary and collateral questions.
• Instead formulated a “pragmatic and functional analysis” [phrase introduced] to balance
Parliaments intentions as to the role of the ADM and the courts supervisory function
- abandoning the ‘preliminary question’ theory
- Standard of review: More principled than formalistic = wording of the statute, purpose, and
expertise of ADMs
Dichotomy obviously problematic from a realist perspective, ie a court could go out of its way to
interpret a clause as an error of jurisdiction and conclude that its decision was ultra vires for a trivial
error
III THE MODERN STANDARD
Pushpanathan v. Canada: Appellant convicted of trafficking drugs. While on parole, he renewed his
claim for Convention Refugee Status. The Immigration and Refugee Board decided the appellant was
not a convention refugee b/c the provisions of the convention did not apply to him since he was guilty of
acts against the purpose and principles of the UN. Issue was what the proper std of review was
• The central inquiry in determining the standard of review is the legislative intent of the statute
creating the tribunal whose decision is being reviewed,
- Specifically, whether the question which the provision raises is one that was intended by the
legislators to be left to the exclusive decision of the Board.
• We can still speak of ‘jurisdictional questions’ which must be answered correctly by the ADM to be
said to act intra vires but a question that ‘goes to jurisdiction’ is simply descriptive of a provision for
which the proper standard of review is correctness, based on the outcome of the P&F analysis
- That a question is jurisdictional is not determinative of the standard of review to be applied, it
is a classification that is a function of a correctness standard of review being deemed
appropriate on the P&F analysis
- [Guy Regimbald calls a juris error ‘not so much an analytical approach as a conclusory
statement’ ]
• Factors to be considered in determining standard of review :
1. Presence or absence of a privative clause or statutory right of appeal
The degree of deference depends on the stringency of the privative clause.
A ‘full’ privative clause – containing phrases like ‘final and conclusive’, ‘no appeal’, and ‘all
forms of judicial review are excluded’ – means a high level of deference to the tribunal’s
decision
The absence of a privative clause is neutral
A statutory right of appeal means a lower level of deference applies
2. Relative expertise of the tribunal
Expertise is a relative concept w/ 3 dimensions:
i. Court must characterize the expertise of the tribunal;
ii. Court must consider its own expertise relative to that of the tribunal;
iii. Court must identify the nature of the specific issue b/f the admin decision maker
relative to this expertise
Fundamental question: Does the decision making body have a high level of expertise
relative to the court wrt the particular issue in question?
Expertise may arise from a number of factors
o The composition of the board or body;
o The fact that the board or body is called upon so often that they develop
institutional competence; or
o The fact that the body follows some special procedure which gives them a relative
advantage over the courts
o Appointed ad hoc or permanent?
A decision which involves a high level of expertise on the part of the ADM in relative terms
to the court will militate in favor of a high level of deference
Where an issue lies at the core competency of the tribunal = high deference (CUPE)
3. Purpose of the Act as a whole and the provision in particular
Where the purposes of the statute & of the decision maker are to resolve disputes or
determine rights between two parties – low level of deference
o The more the legislation approximates a conventional judicial paradigm determined
largely by the facts b/f the tribunal – the less deference (Dr. Q)
Where the purposes of the statute & of the decision maker are to balance competing
interests (“polycentric issues”) – high level of deference
o Polycentric issues incl
The protection of the public;
The engagement of policy issues;
The balancing of multiple sets of interests or considerations (i.e. decision maker
must “have regard to all such circumstances as it considers relevant”)
o If tribunal may select from a range of remedial options = greater deference
4. Nature of the problem: A question of law, fact, or mixed law & fact
Questions of law low deference to tribunal
o But even pure questions of law may be given deference where P&F analysis suggests
such deference was the legislative intent.
o Where the legislative intent is ambiguous, courts will be less deferential. It will be
assumed that legislators intended to leave highly generalized propositions of law to
courts.
Question of fact higher deference to tribunal b/c it was primary finder of facts.
But there is no clear line between questions of law and fact and many determinations
involve questions of mixed law and fact.
Canada (Citizenship and Immig) v Khosa: K was a landed immigrant from India. He was convicted of
criminal negligence for dangerous driving and a valid removal order was issued to return him to India.
He appealed, by the Immigration Appeal Division (IAD) of the Immigration and Refugee Board, denied
special relief on humanitarian and compassionate grounds ito the Immigration and Refugee Protection
Act (IRPA) which included a privative clause. The decision was based on the facts of the crime and K’s
position, esp K’s unwillingness to admit he was racing.
The Federal Court dismissed his application for JR, holding that the special relief question and
the factors employed were highly polycentric and required high deference, ie patent unreasonableness.
The Federal Court of Appeal held that the one factor considered by the IAD - the possibility of
rehabilitation - was a legal factor that did not attract high deference, ie reasonableness simpliciter. It
set aside the IAD decision.
At issue was the exercise by judges of statutory powers of judicial review ito s 18 of the Federal
Court Act which ostensibly stipulated the std of review in various circumstances (fact, law, discretion
etc.) independent of context
• Where the legislature has enacted judicial review legislation specifying a particular standard of
review, that legislation is the first order of business
• The leg must be interpreted purposefully in light of its text, context (esp the CL) and objectives
- By using terms like ‘PU’ or ‘reasonableness’, the Legislature obviously intended the statute to be
understood in the context of the common law jurisprudence (gives eg of BCs Admin Tribunals
Act)
- Also the presumption that legislation and CL meant to be read together as far as possible
- although the concept of PU may exist in the legislation, its content is det by the change in the
principles of admin law brought about by Dunsmuir
• The intent was to capture the judicial review of federal decision-makers for the Federal Court not
specific the standard of review, ie when the judiciary may intervene (grounds) not the way in which it
must do so (standards)
• Note however the legislature can by clear and explicit language oust the common law in this as in
other matters, ie a legislature has the power to specify a standard of review if it manifests a clear
intention to do so
• Where the language is not clear, the courts will
(i) will not interpret grounds of review as standards of review,
(ii) will apply Dunsmuir principles to determine the appropriate approach to judicial review in a
particular situation, and
(iii) will presume the existence of a discretion to grant or withhold relief based on the Dunsmuir
teaching of restraint in judicial intervention in administrative matters (as well as other factors
such as an applicant’s delay, failure to exhaust adequate alternate remedies, mootness,
prematurity, bad faith and so forth).
• Application
- Given the privative clause and the factual nature of the special relief inquiry, reasonableness is
the standard
- Given the deference and broad discretion given to the ADM, the Court of Appeal should not
have overturned the decision
V PATENT UNREASONABLENESS
• A patently unreasonable error is one that is both egregious and obvious
• Dunsmuir said that the reasonableness standard of review must be ‘animated by the principle that
underlies the development of the previous two standards of reasonableness’, ie Dunsmuir
reasonableness subsumed patent unreasonableness, it did not replace it.
Roncarelli v Duplessis: Courts are justified in performing an oversight function because of their
independence of the administration and their expertise in the interpretation of statutes
Baker v. Canada:
• P&F approach / standard of review applies to discretionary decisions as well (esp ulterior purpose
and irrelevant / relevant grounds)
• Discretionary decisions will generally be given considerable respect = high deference
• However, that discretion must be exercised in accordance w/ the boundaries imposed by:
(i) The statute,
(ii) The principle of the rule of law,
(iii) The principles of administrative law,
(iv) The fundamental values of Canadian Society, and
(v) The principles of the Charter
Suresh v. Canada: What is the standard of review to be applied to the following discretionary decision:
whether Suresh's was a danger to national security?
• Applying the Pushpanathan factors to the P&F analysis (esp intention of the Leg), the Minister had a
broad discretion in issuing his opinion & thus high deference should be afforded
i. Presence or absence of a PC or ROA: Although opinion not protected by a privative clause, it
may only be applied by leave to the Fed Court. Parliament intended only a limited right of
appeal = high deference.
ii. Relative expertise of the decision maker: Minister has access to special information and
expertise in matters of national security = high deference.
iii. Purpose of the provision & Act generally: Purpose is to permit a ‘humanitarian balance’ of
various interests; Minister is in superior position to make this assessment = high deference.
iv. The nature of the question: Inquiry is highly fact-based and contextual; not one involving the
application or interpretation of definitive legal rules = high deference.
• Minister had a broad discretion which should only be set aside where it could be found to be
patently unreasonable (broad discretion = high deference = patent unreasonableness)
Broad discretionary decision should only to be set aside where arbitrary, mala fide, cannot be
supported by evidence, failure to consider relevant factors.
The court should NOT reweigh the appropriate factors merely b/c it would have come to a
different conclusion
Shell Canada Products Ltd. v. Vancouver (City): city of Vancouver adopted a resolution not to do
business with Shell while it did business in apartheid South Africa. Question was whether the City of
Vancouver exercised its statutory discretion for an improper purpose. It was alleged that the exercise
was improper b/c the City’s decision not deal w/ Shell was based on conduct by Shell outside Vancouver,
& hence irrelevant to municipal concerns.
Majority (Sopinka J. + 4)
• Adopts a narrow view of municipal powers & a less deferential approach to review; as creatures of
statute, municipalities must stay w/in the powers conferred on them by the provincial legislature;
any exercise of their powers are reviewable for vires.
• A municipality can only act in accordance with its purposes (health, welfare, good govt etc):
If purposes are express, the decision is reviewable for vires
If purposes are implied, any ambiguity must be resolved in favour of the citizen, especially when
those purposes are outside of the ‘usual range’
• Application to the facts:
City of Vancouver was seeking to use its powers to affect matters in another part of the world, a
purpose which is directed at matters outside the purposes of the municipality
Dissent (McLachlin J. + 3)
• Adopts a more generous view of municipal powers & a more deferential approach to review
• Rationale:
Adheres to the fundamental principle that courts must accord respect to the democratic
responsibilities of elected municipal officials and the rights of those who elect them;
It will aid the efficient functioning of municipal bodies & avoid the costs and uncertainty
associated w/ excessive litigation;
It is more in keeping w/ the flexible, deferential approach in the common law wrt judicial review
of expert tribunal decisions
• Judicial intervention is only warranted where the municipality’s exercise of its powers is clearly
ultra vires.
• City Council may provide for the ‘good rule and government of the city’ which – unlike the majority
– the dissent says includes the psychological welfare of its citizens.
CUPE v Ontario: O was a recreation instructor criminally convicted of sexually assaulting a boy under his
supervision and fired thereafter. He took the matter to arbitration where the arbitrator made the
decision that the CUPE could re-litigate the criminal issue on O’s behalf / his determination was NOT
bound by O’s criminal conviction (ie in the face of res judicata, issue estoppel, Evidence Act etc. saying
no tender of evidence to relitigate facts essential to a determined issue)
Arbour (dissent)
• The admissibility of evidence is a matter determined by statute and CL, ie even though an expert
tribunal’s decision is accorded high deference, its decisions on questions of law are not (ie can be
reviewed)
• The TU was not entitled, at common law or statute to relitigate the issue decided against the grievor
in the criminal proceedings
• The decision was patently unreasonable
LeBel (dissent)
• The proper standard of review for fundamental legal questions is correctness \
• BUT general legal questions closely connected to the adjudicator’s core area of expertise will be
afforded deference and usually fall to be reviewed on a standard of reasonableness
II DISCRETION AND THE CHARTER
Slaight Communications: D was dismissed by Slaight and the matter was referred to arbitration. The
remedies teh arbitrator could award included ‘any other thing that is equitable to require the employee
to do in order to remedy or counteract any consequence of the dismissal’. The arbitrator ordered
Slaight to give D a letter of recommendation of specified content (the positive order) and to respond to
inquiries made about D solely by sending the letter (the negative order). The question was whether the
negative order was acceptable given Charter s 2(b)
• The negative order was a remedy contemplated by the statute (within the remedial jurisdiction of
the adjudicator) the arbitrator was part of the govt in making the decision and thus s 32 sees the
Charter apply
• The order is a breach of s 2(b) but justifiable ito s 1 on an Oakes test
Chamberlin v Surrey School District: a teacher asked the surrey School Board to approve 3 books
depicting families were the parents were same-sex ito its discretion ito the Schools Act. The Board
refused on the basis of parent’s religious objections to the morality of such unions. C challenged the
decision on the bases that (i) the Board acted outside its mandate ito the Schools Act and (ii) the
decision violates the Charter
• To determine the std of review we adopt the P&F approach and take the Pushpanathan factors into
account
• Deference ∵ of expertise etc. is tempered (HR dimension of the issue) by the School Act’s
requirement that the discretion to approve books conform to norms of tolerance, respect for
diversity, etc. = reasonableness review [intermediate form of review, before Dunsmuir]
• Factors
- Purpose: Secularism, diversity etc. are overt policies of the Schools Act
- Role of the Board: elected and representative of the community but not a legislature; defined
ito statute that it must conform to
• The exercise of discretion is constrained by the a purposive mandate of the statute
• The relevant Charter values are incorporated in the requirements of the School Act, religion can be
taken into account (representative role) but can NOT be used as a basis for advancing particular
religious agenda
• The Board, proceeded on an exclusionary philosophy in makings its decision, rather than on the
basis of respect of all types of families
• The Board acted outside the mandate of the School Act by failing to apply the criteria required by
the Act, ie the decision was based entirely on religious grounds and breach the requirements of
secularism and tolerance in its enabling statute
Operation Dismantle v. the Queen: Appellants sought declaration that testing of cruise missiles in
Canada pursuant to US agreement violated their Charter rights under s. 7. They argued that the testing
increased the risk of nuclear war & attack on Canada.
• Appellants’ claim was struck for disclosing no reasonable cause of action – the causal link b/w the
decision of the gov/t to permit the testing & the results alleged could never be proven.
• Abolished the doctrine of political questions in Canada (entitled the courts to refrain from deciding
an issue b/f it on the ground that the issue in question was ‘political’ in nature.
• Issue of justiciability:
The executive branch of gov/t is subject to the Charter wrt both decisions made pursuant to its
stat. authority AND its prerogative powers
However the particular issues raised in this case were deemed non-justiciable, not simply b/c of
evidentiary difficulties, but b/c they involved moral & political considerations which are not
w/in the province of the courts to assess.
• Doctrinal significance: Courts may now review decisions made by the gov/t under prerogative
powers (provided justiciability is satisfied).
Black v. Canada (Prime Minister): UK gov/t was going to grant Conrad Black the privilege of sitting on
the HOL. Chretien called the Queen and exercised his prerogative power ito the Nickel resolution
(requesting sovereign not to grant honours to Canadians). Black brought a civil suit against Chretien
seeking damages arguing that he suffered inconvenience and embarrassment as a result of the refusal.
• The source of the power – statute or prerogative – should not determine whether the action
complained of is reviewable
• The controlling consideration in determining whether the exercise of a prerogative power is
judicially reviewable is its subject matter not its source
• The exercise of a prerogative power will be amenable to the judicial process if it affects the rights
of individuals
At one end of the spectrum are non-judiciable exercises such as signing treaties and declaring
war and at the other end of the spectrum are judiciable exercises such as refusal of a passport.
The honours prerogative falls somewhere in b/n
• Here the actions of the PM in exercise of the honours prerogative was not judicially reviewable b/c
no important individual interests were at stake
Black’s rights were not affected; no Canadian citizen has the right to an honour
The conferral of an honour engages no liberty, proprietary, or economic interests; it enjoys no
proc. protection; it doesn’t have suff. legal component to warrant the court’s intervention
Instead, it involves “moral and political considerations which it is not w/in the province of the
courts to assess” (Operation Dismantle)
Multani v. Commission scolaire & AG (SCC, 2006) G (a Sikh) accidentally dropped his kirpan (worn under
his clothes) at school. School board sent G’s parents a letter in which it authorized G to wear his kirpan
provided that he sew it into his clothes – G’s parents agreed. The Governing board of the school refused
to ratify the agreement on the basis that wearing the kirpan violated the school’s code of conduct. The
school board’s Council of Commissioners upheld that decision. B (guardian) filed in the Superior Court a
motion for a declaratory judgment to the effect that the Council of Commissioners’ decision was of no
force or effect. The Court of Appeal reviewed the Council’s decision on a standard of reasonableness,
and upheld it.
Majority (McLachlin J.) - direct to Charter
• Since the complaint is based entirely on freedom of religion the administrative law standard of
review was not relevant.
• Where the legislation (pursuant to which an administrative body has made a contested decision)
confers a discretion and does not confer, either expressly or by implication, the power to limit the
rights and freedoms guaranteed by the Charter, the decision should, if there is an infringement, be
subjected to the test set out in s. 1 to ascertain whether it constitutes a reasonable limit.
• Application to the facts: Held the infringement of G’s freedom of religion can’t be justified under s. 1
of the Charter. The objective of safety is pressing and substantial, there is a rational connection, but
it not a minimal impairment of G’s freedom of religion
• Compares reasonableness review and minimal impairment
Dissent (Abella & Deschamps JJ.) - Charter application (if relevant) through the std of review
• Although a constitutional justification analysis must be carried out when reviewing the validity or
enforceability of a law, regulation or other similar rule of general application, the admin law
approach must be retained for reviewing mere decisions made by admin bodies (no application of
Charter to individuals)
• If an admin body makes a decision or order that is said to conflict with fundamental values, the
mechanisms of administrative law — including the standard of review — are readily available.
• Does NOT agree with equating minimal impairment (ito s 1) and reasonableness review; the duty of
reasonable accommodation takes into account the specific details of the circumstances of the
parties, the justification of minimal impairment is based on societal interests.
Standing
• Development: admin law traditionally focussed on vindicating individuals’ rights (individual int) –
still so today but also includes rooting out or getting at illegality (pub interest) –– tentative move to
allow representative actions aside from the AG
• General Rule: A person receiving adverse treatment has standing to bring forth a claim.
• Complication: Situations arose,
1. where the decision in question affected a broad section of society in a diffuse way (e.g. Bell
Canada or Inuit); or
2. where the decision would affect a range of interests in a different way and the person to bring
forth the claim is the person least affected (e.g. Lafarge)
• Issue: Who is entitled to bring judicial review proceedings in the public interest?
(i) Is there a serious justiciable issue regarding the validity of a challenged law or action?
• Is there a legal issue w/in the proper role of the courts?
As long as there is a legal issue it does not matter that its policy context is better left to
legislature or executive
o Are the claims too wide-sweeping/cover too much of the Act? = against standing
o Are the claims too hypothetical? = against standing
o Are the claims too political? = against standing
• Is that legal issue serious or frivolous?
The issue in question must be serious or important; not frivolous or busybody
• Application; Questions raised by Finlay are questions of law = justiciable, and aren’t frivolous
(ii) Does the interested party have either a direct interest or a genuine interest in the validity of the
legislation or action?
• Has the party demonstrated a real and continuing interest in the issues?
• Application: Finlay’s status as a person in need in contemplation of the Plan who claims to have
been prejudiced shows that he has a genuine interest
(iii) Is there no other reasonable and effective way of bringing the matter before the court?
• Court has the benefit of the competing points of view
Have others been consistently bringing challenges? = against standing
Can others bring more concrete and clear factual basis upon which to make a decision? =
against standing
Is it well established that the group is vulnerable to continued existence of legislation in an
unchallenged form? = for standing
Are the provisions in question very similar such that they do not require factual context to
make a ruling? = for standing
• Application: Nature of legislation demonstrates that no one else has a more direct interest
Notes:
• Court found the above test addressed many of the concerns wrt public interest standing:
Concerns about the proper role of the courts and their constitutional r/ship to other branches of
gov/t is addressed by the requirement of justiciability
Concerns about the allocation of scarce judicial resources & the need to screen out the mere
busybody is addressed by the requirements that there be a serious issue and that a citizen have
a direct or genuine interest
Concerns that in the determination of an issue a court should have the benefit of the contending
views of the persons most directly affected by the issue is addressed by the requirement that
there be no other reasonable & effective manner in which the issue may be brought b/f a
court
• One of the implications of Finlay is that the discretion of the court only comes into play when the
applicant or plaintiff fails to establish standing by reference to the traditional common law rules or
any relevant statutory provisions wrt standing. Where those standards are met, the plaintiff is
entitled to bring the case as of right.
Can. Council of Churches v. Canada (Minister of Employment & Immigration): CCC represents the
interests of a broad group of member churches and co-ordinates their work aimed at the protection and
resettlement of refugees. Amended Immigration Act completely changed the procedures for
determining whether applicants come w/in the definition of Convention Refugee. On the 1st day after
the amended act came into force the CCC sought a declaration that many if not most of the amended
provisions violated the Charter
• CCC not granted public interest standing b/c it failed to meet 3rd part of the Finlay test
• The purpose of granting status is to prevent immunization of legislation or public acts from
challenge. The granting of public interest standing is NOT required when, on a BOP, it can be
shown that the measure will be subject to attack by a private litigant.
• Ie failed on the no other reasonable and effective way test: other people in a more concrete factual
manner are likely to bring a challenge
Vriend v Alberta: Vriend fired from religious school where he taught for being a homosexual. Claimed
redress under Alberta Individual Rights Protections Act but denied ∵ it did not prohibit same-sex discrim.
A few gay and lesbian org’s and he brought a s 15 challenge not just on the employment provisions
(indiv interest) but on all the provisions of the Act with a list of proscribed discrim which did not include
same-sex
• Members of te public can bring a claim against legislation offending constitutional interests
• It was a serious and justiciable issue (const issue), they had a direct interest (this is not really an
employ discrim case), and there were no other reasonable and effective ways to bring the issue
before court (waiting for someone else to be discriminated against would be unfair to the litigants –
imposing cost, delay and person vulnerability – besides being a wasteful of judicial resources;
ripeness)
Harris v. Canada: Harris, a taxpayer and member of an organization that seeks to ensure the fair
administration of the taxation system, sought a declaration that the Min National Revenue had acted
illegally in providing another taxpayer w/ a favourable private advance ruling while maintaining a
different position publicly. Harris requested that the AG bring the case twice; but the AG has not
complied. Harris claimed ulterior motive (serious infringe)
• If Revenue Canada makes compromise agreements or covert deals or provides preferential
treatment to certain taxpayers w/o statutory authority, public interest standing may be granted to
challenge the tax treatment that Revenue Canada affords the taxpayers who benefit
• It was a serious and justiciable issue (improper motive), he had a direct interest (taxpayer +
organization rep), and there were no other reasonable and effective ways to bring the issue before
court (AG refusal + unlikely taxpayers would do so ∵ favourable to them)
• Standing granted to Harris.
Energy Probe v. Canada (Atomic Energy Control Board): Energy Probe challenged the renewal of a
nuclear reactors’ license on grounds of bias of a member of the licensing authority. The court accepted
it had pub int standing but it then argued the AG should not be a party to the dispute.
• Basis for AG standing is (i) the protection a Crown interest [prob det by Finlay individual int test];
and (ii) the issue b/f the court was one of “general importance” and of such a nature that the Court
deemed it beneficial to hear the arguments of the AG to ensure all arguments canvassed.
Harelkin v University of Regina: student was excluded and instead of utilising the available right of
appeal to the University Senate he applied for JR
• A right of review / appeal in an empowering statute will be adequate unless it is unequivocally clear
that it would not amount to a fair hearing (clear from words of statute, unreasonable delay, refusal
to perform its duty etc)
• Factors taken into account in determining adequacy incl (i) the procedure on the appeal, (ii) the
composition of the appeal body, (iii) its powers and the manner in which they were probably to be
exercised, (iv) the burden of a previous finding, (v) expeditiousness and (vi) costs.
• An applicant is not entitled to use the courts merely because they are more convenient remedy ito
costs or expeditiousness BUT costs + expeditiousness will be sufficient if, in addition, there is no
other way to protect the right
Canadian Pacific Ltd v Matsqui Indian Band: CP had levies imposed on it by a tribunal est ito The Indian
Act for reviewing levies it allowed bands to tax on people using the reserve. CP went to court without
pursuing the appeal procedures established under the Act
• Factors taken into account in determining adequacy incl (i) Legislative intention, (ii) the convenience
of an alternative remedy, (iii) the nature of the error, (iv) the nature of the appeal body
• Factors not a closed list & should be contrasted and weighed against one another in a contextual
enquiry
V DELAY
• Failure to adhere to time provisions can go to jurisdiction or discretion of the court
Friends of the Oldman River Society: Minister approved a dam building project without an EIA and the
challenge only came 3 years after when the project was 40% complete
• Factors = (i) whether other parties who have relied on decision will suffer prejudice; (ii) when
applicant became aware of decision; (iii) other action taken against decision; (iv) the gravity of the
problem with the decision (eg was it a criminal offence)
Re Consolidated Maybrun Mines Ltd: mining company ordered by Minister of Environ to clean up
transformers containing PCBs (posing an environ risk) in their abandoned mine. They ignored the order
and when charged by the Ministry sought to have the order declared invalid, ie in their criminal case
• Involves a collateral attack: a challenge to an admin decision in proceedings that do not have as
their direct target the validity of the relevant decision or action; ie challenging the validity the admin
decision by way of defence to a prosecution for breach of that law
• Overarching principle: what forum did the Leg intend to deal with the issue of invalidity?
• Factors taken into account in det Leg intention, ie whether a court can rule on a collaterally attack
admin decision: (i) the wording of the statute from which the power to issue the order derives; (ii)
the purpose of the legislation (preventative, remedial, punative); (iii) the availability of an appeal (ie
remedy within the ADM other than quashing its order); (iv) the reason for the collateral attack (their
own refusal to cooperate); (v) the penalty on a conviction for failing to comply with the order
Garland v Consumer Gas Co: CGC was a gas utility that charged it customers a flat one-time fee for
payments after the due date. It was allowed to implement this by a decision of the Ontario Energy
Board. For a significant number of customers – who paid their fees relatively soon after the due date –
the fee equated to CGC charging them a very high interest rate. A few consumers alleged this was
contra the Criminal Code making it an offence ot charge interest over 60%. It was argued this was a
collateral attack on the OEB’s decision to allow the late-charge in the first place
• The doctrine of collateral attack can prevent a party from undermining previous orders issued by a
court or administrative tribunal , often invoked where the party is attempting to challenge the
validity of a binding order in the wrong forum
• To amont to a collateral attack the party must be bound by an order and then seek to avoid it by
challenging its validity (rule of law and repute of admin of justice rationale), ie there must be a
threat to the integrity of the system
• This is not a collateral attack on the OEB’s decision as this is essentially a claim to recover money
that was illegally collected as a result of Board order.
Remedies
• BNA s. 96, allows provincial Superior Court members to be appointed by federal government (“s. 96
courts”)
Source of powers of the Superior Court: (1) statute; and (2) inherent jurisdiction
Inherent juris cannot be removed by Parliament through ordinary leg (FC Act)
Fed courts have NO inherent juris so their juris depends on conferral ito the FC Act) or the
enabling legislation (Roberts v Canada)
• Mostly, the choice on whether fed / prov will depend on the source of the power, ie tribunals
created by Parliament = fed review, tribunals created legislatures = prov review
III REALM OF FEDERAL REVIEW POWER
• Federal courts have juris that is expressly conferred or implied by statute (cf. Prov courts which
have presumed juris, unless removed by statute)
Definition of “federal board, commission or other tribunal” (principal threshold to application of FCA
and Fed JR)
S. 2,: any body, person or persons having, exercising or purporting to exercise jurisdiction or powers
conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of
the Crown, other than any such body constituted or established by or under a law of a province or any
such person or persons appointed under or in accordance with a law of a province or under s. 96 of the
Constitution
∴ Fed court excl juris extends to
(i) Acts of Parliament;
- Primary and subordinate legislation
- Does NOT apply to corporate bodies established under federal legislation including
Crown corporations, band councils, boards of directors of corps. Incorporated under
the CBCA; Canada v. Lavell
(ii) instruments issued in exercise of a royal prerogative (regulations etc.)
- Does NOT apply to direct exercises of a prerogative power; Black v. Canada (Nickel
resolution prerog power exercised to recommend no honour on Black)
Exclusive jurisdiction of FCCA (ie excl from both Superior Courts and FCTD)
28.(1) The Federal Court of Appeal has jurisdiction to hear and determine applications for judicial
review made in respect of any of the following federal boards, commissions or other tribunals:
- the Board of Arbitration established by the Canada Agricultural Products Act;
- the Review Tribunal established by the Canada Agricultural Products Act;
- the Canadian Radio-television and Telecommunications Commission established by the
Canadian Radio-television and Telecommunications Commission Act;
- the Pension Appeals Board established by the Canada Pension Plan;
- the Canadian International Trade Tribunal established by the Canadian International Trade
Tribunal Act;
- the National Energy Board established by the National Energy Board Act;
- the Canada Industrial Relations Board established by the Canada Labour Code;
- the Public Service Labour Relations Board established by the Public Service Labour Relations Act;
- the Copyright Board established by the Copyright Act;
- the Canadian Transportation Agency established by the Canada Transportation Act;
- umpires appointed under the Employment Insurance Act;
- the Competition Tribunal established by the Competition Tribunal Act;
- etc.
II(1) Test for Federal Court juris
• Federal courts have juris that is expressly conferred or implied by statute (cf. Prov courts which
have presumed juris, unless removed by statute)
• Test basically a matter of the defn of “federal board, commission, or other tribunal” in FCA, s2
• However, s 2 does not reach all bodies employing federal power (esp Crown Corporations) so
International Terminal Operators v Miida Electronics
3 part test
1) A statutory grant of jurisdiction by Parliament: Federal Courts Act or the enabling statute
2) An existing body of federal law which is essential to the disposition of the case and which
underpins the statutory grant of juris: the case must be governed by a federal Act
3) The law on which the case is based is a “law of Canada” ito BNA s 101: the federal Act must
be valid, ie pass distribution-of-powers muster
Grounds of review
S. 18.1(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board,
commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was
required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of
the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or
capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law. (some counsel make their argument under (f)
and then stick to the common law language)
• Under s. 18.1(3) and (4), Federal Court Act…it is clear that the federal courts have the discretion to
deny relief
Common grounds to deny relief: Statutory right of appeal, prematurity, delay, mootness, lack of
practical utility, misconduct of applicant, waiver and balance of convenience, & public interest
Problem: it could legitimate unlawful admin action
• Court’s discretion to refuse relief can occur:
Where a specific remedy in the empowering statute exists
Where judicial review is inconvenient
IV REALM OF PROVINCIAL (ie SUPERIOR COURT) REVIEW POWER
• Prov courts which have presumed juris, unless removed by statute (cf. Federal courts have juris that
is expressly conferred or implied by statute)
• Prov courts still possess concurrent and at times exclusive (prov Acts)
S.1, Definitions:
“statutory power” means a power or right conferred by or under a statute,
(a) to make any regulation, rule, by-law or order, or to give any other direction having force as
subordinate legislation,
(b) to exercise a statutory power of decision
(c) to require any person or party to do or to refrain from doing any act or thing that, but for such
requirement, such person or party would not be required by law to do or to refrain from doing
(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of
any person or party
“statutory power of decision” means a power or right conferred by or under a statute to make a
decision deciding or prescribing,
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or license,
whether the person or party is legally entitled thereto or not, and includes the powers of an
inferior court.
• The use of “in the nature of” in the statute can mean the JRPA applies not only to old prerogative
writs but also other remedial regimes that are like or in the nature of prerogative writs (Re Rees)
• Purpose of limiting application s. 2(1) to exercises of statutory powers only was to limit application
of the Act to the public law sphere
While prerogative writs naturally are only public law remedies (Bezaire; Martineau), injunctions
and declaratory relief are found in private law.
Via s. 2 the legislature is signalling that the Court in reviewing may only grant public law
remedies rather than private law remedies.
IV(2) Concurrent jurisdiction / exception to rule of no prov auth over fed tribunals (habeus corpus)
May v Ferndale: the Correctional Service of Canada used a computer programme to formulate a score
for inmates determining their appropriate security level. May – a federal inmate – was transferred from
a minimum to medium-security institution (more restrictive of liberty). In provincial superior court, he
applied to for habeas corpus to go back to which end he also applied for a certiorari for the scoring
matrix. The BCCA felt prov courts could NOT exercise juris
[decided under BC Judicial Review Procedure Act but basically same as Ontario’s Act]
• JR is available for decisions relating to prisoners wrt the liberty they have left (‘residual liberty’), ie
the rule of law applies within prison walls
• The nature of habeus corpus should be interpreted purposively, ie protection of individuals against
wrongful restraints of liberty
• Prov courts will have jurisdiction to issue certiorari in aid of habeas corpus in respect of detention
and administrative segregation in federal penitentiaries in order to protect residual liberty interests.
• Prisoner should have the choice of forums (CONCURRENT JURIS: prov court ito habeus corpus and
Fed courts ito statutory JR)
• Prov courts are suited because of their expertise with the remedy, timeliness, and local access
• Prov court should NOT exercise juris (goes to Fed instead) =
(i) Where a statute (eg Criminal Code) confers jurisdiction on a court of appeal to correct the
errors of a lower court and release the applicant if need be;
(ii) Where Parliament has put in place a complete, comprehensive and expert procedure for
review of an administrative decision (ie does the scheme reflect and intention to exclude any
other court or tribunal from entertaining any type of proceedings)
• There is no Act dealing with administrative detention and Parliament has not put in place a
procedure for dealing with the confinement of prisoners
V INTERIM RELIEF
• Interim relief (i.e. stay of proceedings or interlocutory injunctions) are sought for two reasons in the
admin law context:
1. to prevent an administrative process from proceeding pending disposition of an application for
judicial review;
2. to prevent actions being taken by those subject to the admin process pending the conclusion of
a hearing/investigation
V(3) Injunctions
• An ADM can be given authority to make interim rulings pending a decision but if not, the courts can
be asked to award interlocutory relief
Brotherhood of Maintenance of Way Employees: BCSC was asked to award an injunction restraining an
employer from implementing a change to the work schedule pending arbitration
• Courts retain a residual discretionary power to grant interlocutory relief where there are no
adequate alternative remedies
• This can be applied for whenever there is a justiciable right and that right need not fall for
determination before the same court from which the interlocutory relief is sought
** Note: When you bring a claim for judicial review, damages are available. To claim damages, a party
would have to commence a separate action in provincial court