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Judicial Mechanisms for Control of Administrative Action
STATUTORY RIGHT OF APPEAL This must be stipulated in Statute. If the statute does not grant right to appeal, then your only recourse is Judicial Review In order to be capable of appeal, Ts decision must decide the merits of the matter or otherwise be final. Usually Ts enabling stat. will also set out the crt to which Ts orders may be appealed. Fed Ts appeal gen. to FC or FCA. Prov. Constituted Ts may be taken to provs tiral crt, divisional crt or CofA. JUDICIAL REVIEW When statute lacks appeal provision. Constitutionally protected as part of inherent powers of superior courts under s.96 of the Constitution Act
What is the scope of available appeal? Scope of appeal is determined entirely by enabling stat. Thus varies from 1 T to the other. Is an appeal avail. as of right or is leave required? Appeals can be as of right or require leave either of the original DM or more frequently of the appellate body. Is a stay of proceedings automatic or must one apply for it? BC ATA provides that the commencement of an appeal does not operate as a stay or suspend the operation of the decision being appealed unless the tribunal orders otherwise. Unless a stat. specifically excludes it (as BC ATA does) the superior crt that is the Ts designated appellate crt has the inherent auth to grant a stay.
PRELIMINARY ISSUES YOU MUST CONSIDER: IS JR EVEN AVAILABLE? 1) MUST BE A PUBLIC BODY One of the key threshold questions is whether the T whose actions are being challenged is, in fact, a public body. JR is avail. to check executive action. Therefore, only public bodies can be subject to JR. Factors to determine is Tribunal are a private or public body: 1. Ts functions & duties & the source of its power & funding 2. Whether govt directly or indirectly controls the body; 3. and Whether govt would have to occupy the field if the body were not already performing the functions it does. A body will be subject to public law and thus JR is it is part of the machinery of govt.: McDonald v Anishinabek 2) YOU MUST HAVE STANDING In addition to determining whether a T is a sufficient public body, a party seeking to challenge admin action should determine whether she has standing. There are two types of standing: 1. Individual Standing: It is said that the test for standing is whether the applicant is a person aggrieved by the admin decision. A person aggrieved is one who will suffer some peculiar grievance of their own beyond some grievance suffered by them in common w/ the rest of the public 2. Public Body Standing: Finlay Under Public Interest Standing, the test to be applied is threefold: 1) Is the matter serious and justiciable? 2) Is the party seeking standing genuinely interested in the matter? 3) Is there any other reasonable and effective way for the matter? 3) WHICH CRT TO APPLY 2 Both provincial & Fed courts have JR jurisdiction. Which court has jurisdiction to conduct JR, unlike appeals, is not usually set out in Ts enabling stat. Typically crt is determined by whether the source of impugned authorities power is provincial or fed. 4) BEAWARE OF DEADLINES Make sure no deadlines have been missed. Some stats. impose deadlines. Ie) Fed Court Act states that JR apps from Fed Ts to FC must be made w/in 30 days of time the decision or order made. n BC gen. time limit is 60 days: ATA s57(1). 5) MUST HAVE EXHAUSTED ALL OTHER RECOURSE P must establish that she has exhausted all other adequate means of recourse for challenging Ts actions: Harelkin
SUBSTANTIVE REVIEW
Application of substantive review will be triggered when you take issue with the actual decision.
PROCEDURAL FAIRNESS
The fact that a decision is administrative and affects the rights, privileges or interests of an individual is sufficient to trigger application of duty of fairness. Cardinal; Nicholson ( triggered when you have problem w/ procedure) A general duty of PG applies to admin decisions Nicholson
SUBSTANTIVE REVIEW
What is the Standard of Review? In determining this, we must undertake the standard of review analysis (dealing with substance/content of decision, actual decision) Dunsmuir changed SOR from 3 standards to only 2.
http://tlaing.com/lawnotes/at-admin-2.pdf
Before determining the SOR, ask Whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question? This means that sometimes majority reasons set out which ground will apply (either reasonableness or correctness) Dunsmuir tells us that a SOR need not be undertaken in ever situation: An exhaustive review is not required in every case to determine the proper standard of review. Here again, existing jurisprudence may be helpful in identifying some of the questions that generally fall to be determined according to the correctness standard. This simply means that the analysis required is already deemed to have been performed and need not be repeated. o EX: : correctness review has been found to apply to constitutional questions regarding the division of powers between Parliament and the provinces in the Constitution Act, 1867: Westcoast Energy Inc. v. Canada (National Energy Board). Such questions, as well as other constitutional issues, are necessarily subject to correctness review because of the unique role of s. 96 courts as interpreters of the Constitution: Nova Scotia (Workers Compensation Board) v. Martin o Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. Jurisdiction is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction. NOTE: Correctness will apply in: 1. Constitutional Questions 2. TRUE questions of jurisdictions or vires (did the tribunals statutory grant of power give it authority to decide a particular matter. The tribunal must interpret its power correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction) 3. Questions of general law of central importance to the legal system and outside the tribunals are of specialized expertise 4. Questions of jurisdictional lines between 2 specialized tribunals NOTE: Reasonableness will apply in: 1. Question of Fact 2. Question of Discretion 3. Question of Policy 4. Questions of Mixed & fact (questions where legal issues cannot be easily separated from factual issues)
YES If it has been set out, then there is no need for SOR analysis.
NO Where the first inquiry proves unfruitful, courts must proceed to the SOR analysis. This consists of the 4 factors in Pushpanathan.
Here the inquiry on particular individual provision being invoked by &interpreted by T
Pushpanathan lays out the following 4 factors to determine the SOR (however none are determinative): 1. Privative Clause (or an appeal provision within the legislation): the presence of a PC weighs in favour of curial deference. It is never determinative b/c the designation of a matter as jurisdictional Q (correctness) or a Q w/in jurisdiction (PU) must await the outcome of crts assessment of expertise according to the other 3 factors. A finality clause (declare only that outcome is final and binding on Ps) inclines curial deference but not as strongly as a PC. The availability of JR is more or less neutral w/ re: to its message re: deference, while the presence of an appeal provision tilts against curial deference. Note: As w/PC, the effect of an appeal provision can be outweighed by the assessment of expertise s it was in Southam. 2. Expertise (relative expertise on the specific question at issue): Case law is clear that relative expertise is the most important factor in
determining the SOR. In Pushpanathan crt identifies 3 steps in evaluating expertise: (i) the crt must characterize the expertise of the T in Qs; (ii) Crt must consider its own expertise relative to that of the tribunal; and (iii) crt must identify the nature of the specific issue before the DM relative to this expertise. Where T possess broad relative expertise that brings to bear in some degree on the interpretation of highly gen. Qs crt may still show considerable deference as it did in Southam and Corn Growers. When describing a Ts expertise, the crt attends to the Ts composition & specialized knowledge in comparison to a crt. ie) labour arbitrators are considered less expert than boards b/c arbitrators are usually appointed by the Ps on an ad hoc basis & their task is confined to the interpretation & application of a particular collective agreement, rather than the administration of the entire regime of industrial relations. The ad hoc nature of the appointment usually counts against the expertise of certain human rights Ts as well. In Ryan crt went to some length to defend the superior expertise of the Law Societys professional discipline committee. Unlike a securities commission or competition T, the expertise of a LS discipline committee cld hardly be described as beyond the ken of most judges. Nevertheless the majority explained that practising lawyers may be more intimately acquainted w/ the ways that these professional standards play out in everyday day practice than judges who no longer take place in solicitor-client rship. So owing to its composition & its familiarity w/ particular issue the discipline committee arguably has more expertise than crts on this matter. In Chamberlain crt found that while board expert in balancing the many interests groups, b/c the decision has a human rights dimension, in which crts are more expert than AT, less deference is owed. Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity: Canadian Broadcasting Corp o NOTE: while SCC clearly prioritizes expertise in formulating SOR, its inquiry is limited to the Statutory role of the Admin actor, not the particular individual occupying it. Courts will glean Evidence of expertise from statute & surrounding context, but will not scrutinize the qualifies, competence, training of experience of the specific DM.
3. Purpose of the Act as a whole and of the provision in particular (the polycentricity principle) o What aspect of stat purpose is relevant to SOR? Where the stat and/or provision can be described as polycentric meaning that it engages a balancing of multiple interests, constituencies and factors contains a sig. policy element and articulates the legal standard in vague or opentextured language, more judicial restraints is warranted. o Disputes that more closely resemble the bipolar model of opposition b/w Ps & interests justify less curial deference.
4. Nature of the problem: question of law or fact (or mixed law/fact) o Where the question is one of fact, discretion or policy, deference will usually apply automatically (Mossop ) We believe that the same standard must apply to the review of questions where the legal and factual issues are intertwined with and cannot be readily separated: Dunsmuir o One clue that judges look for is the extent to which the determination will have precedential value in subsequent cases. The greater the precedential impact, the greater the assessment of expertise tilts towards the courts. The labeling of the issue as a pure Q of law (Barrie Utilities), a concept derived from the CL or Civil Code (Bibeault), a general Q of law (Mossop, family status), not scientific or technical (Mattel), or a HR issue (Pushpanathan, Chaimberlain) is a reliable signal that the court has concluded that the legal issue is one in which it is more expert than the AT. o In Via Rail the majority rejected the HR dimension of interpreting and applying the provision justified review on a standard of correctness. It was said that this unduly narrows what the T was called upon to decide. CDN Transportation Act is highly specialized reg leg w/ a strong policy focus. It was noted that by attributing a jurisdiction-limiting label, such as stat interpretation or HR to what is in reality a function assigned and properly exercised under enabling leg, a Ts expertise is made to defer to courts generalism rather than the other way around. o NOTE: Court attaches weight to precedential value of a decision in characterizing a matter as a general Q of law. However court has rejected the assertion that the precedential value of resolving inconsistency w/in or b/w Ts constitutes an independent basis for adopting a correctness SOR: Domtar
Once you determine the SOR, you apply the standard to the issues of the case.
Correctness In Ryan it was said that where a correctness standard is imposed, the court may undertake its own reasoning process to arrive at the result it judges correct. When applying the correctness standard, a reviewing court will not show deference to the decision makers reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunals decision was correct.
Reasonableness To decide if a decision is reasonable, court must inquire into: 1. The process of articulating reasons (concerned mostly with the justification, transparency and intelligibility within the decision make process); AND 2. The outcomes reached (does the decision fall within a range of possible outcomes that are defensible in light of the facts and the law, if so court will exercise deference) AND the court must exercise deference Dunsmuir What does deference mean in this context? Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. The notion of deference is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers (Mossop) Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers.
See Remedies
PROCEDURAL FAIRNESS
What is the SOR? (when procedures done and inappropriate) A correctness standard will always apply when procedural fairness has been breached. Historically, compliance w/ the duty of fairness has been regarded as a jurisdictional question, and jurisdictional questions must be answered correctly: Crevier. In other words decision makers do not have the right to be wrong where procedural questions are concerned. Jurisdiction will be lost in the course of proceedings if the duty of fairness is breached. If this occurs the relevant decision will be quashed and the DM will be required to make a fresh decision in accordance w/ the correct procedure. The application of the correctness standard does not mean that there is no room for deference when it comes to the duty of fairness. The court made clear in Baker that the needs of the DM are relevant at this stage but they may be outweighed by other Baker factors. In any event once the content of the duty of has been determined, the conduct of the DM will be assessed and the court will ask whether or not the duty of fairness has been met, a question that will be answered on a correctness basis. Although a successful application for JR on fairness grounds will result in an order quashing the decision, nothing prevents the decision maker from reaching the same substantive decision. EXCEPTION: A standard of patently unreasonable will apply ministerial decisions that are discretionary are under review.
If PF obligations have been breached, then:
INDEPENDENCE go to pg 11
BIAS go to pg 12
Two questions arise when review proceedings are brought alleging a breach of PF. NOTE: Although a successful application for JR on fairness grounds will result in an order quashing the decision, nothing prevents the DM from reaching the same substantive decision. STEP1: THRESHOLD: When is fairness required?: What is the threshold for the application of the duty? (Although the duty of fairness applies to a wide range of decisions, there remains decisions to which it does not apply) Rights, interests and privileges. The duty of fairness applies to any decision that affects an individuals rights, interests or privileges Nicholson Limitations on the scope of the Duty of fairness: A) B) The duty applies to decisions, meaning final decisions. Rarely will it apply to investigations or advisory processes that do not have any consequences, even though they may lead to more formal DM process that do. The duty does not apply to legislative decisions. The SCC has always insisted that the duty of fairness does not apply to leg. decisions or functions: Reference RE CDN Assistance Plan The crt never explained the meaning of leg functions but it is clear that primary leg whether passed by Parliament or legislature is not subject to the duty of fairness. Crts come into the pic when leg is enacted and not before.
Exception to Breach PF: 1. Emergency Cases: Duty of PF may be suspended/abridged in event of emergency: Cardinal v Direction of Kent Institution, Whether an action without prior notice or initial hearing is justified, depends on whether there genuinely a need. R v. Randolph (mail stopped b/c use for Criminal activity) 2. Legislative exemptions (i) Are Cabinet and Ministerial Decisions covered by legislative exemption? They are not exempt per se but it will often be easy to characterize Cabinet & Ministerial decisions as leg, and as a result will be exempt from the duty. In Inuit Tapirisat provides a good example. In that case the Fed Cabinet rejected an appeal from a decision made by CRTC allowing a rate increase w/out allowing the petitioning group to be heard. The crt has emphasized the unique role and responsibilities of the executive branch as a reason for not extending the duty of fairness to ministerial decisions. (ii) Is subordinate legislation covered by legislative exemption? (legislation delegated to 3d party to make) Arguably there is less reason to be concerned with subordinate leg b/c political approval for such leg is subsidiary in nature. The leg exemption is itself subject to exceptions. In Homex SCC concluded that the passage of municipal bylaw was subject to fairness. Having been unable to resolve a dispute w/ a developer the village passed a bylaw deeming the lots purchased by the developer not to be a registered plan of subdivision. The developer thus could not sell the lots w/out the villages permission. This makes the point that substance is more important than form where the leg exemption is concerned. C) Are policy decisions Covered by the leg exemption? The leg exemption includes decisions that may be described as policy decisions as well as decisions that are general in nature. In Martineau it was said that a purely ministerial decision, on broad grounds of public policy will typically afford the individual no procedural fairness.
STEP 2: THE LEVEL OF PF REQUIRED How is the content of the duty determined? Courts first determine the degree of fairness before particularizing the content and deciding whether the duty had been met. The following factors are used in determining the nature and extent of PF: Baker: However not exhaustive. 1) The nature of the decision being made and the process followed in making it (look at closeness of administrative process to judicial process): (i) Legislative & general / discretionary policy suggests less PFOs (ii) Administrative & specific / resembles adversarial court-like process / fact-finding & credibility suggests more PFOs; (iii) Less PFO in emergency situations; (iv) Less PFO for non-final decisions The more the decision can be said to be quasi judicial or judicial in nature, rather than administrative, the weightier the procedural safeguards must be. 2) The nature of he statutory scheme and the terms of the statute pursuant to which the body operates. also consider if there is a general statute specifying procedures such as Ontarios Statutory Powers Procedures Act (none in B.C.) Does statute or regulations give PF rights or override common law PFOs (e.g. as in Singh Wilson J. is statute intended by legislature to be exhaustive for PFOs) Where dm process includes preliminary steps, the requirements of fairness may be less/minimal (ie investigatory procedures not normally subject to this duty, despite that they may give rise to proceedings in which fairness protection will be required. Existence of an appeal is an important consideration in deciding whether and to what extent reasons for a decision are required. 4) The importance of the decision to the individual More important to an individual, more protection.
3)
The legitimate expectations of the person challenging the relevant decision.(which has 2 meanings): Two types: (i) where person is led to understand that he will be afforded a particular procedure before a decision is made, even though the procedure is not otherwise required (if this is so the individual is entitled to PF before D is made); (ii) where a person is led to expect a particular outcome from a DM process. (The doctrine of LE does not require that particular outcomes be protected but it operates to require that a procedural protection be afforded before an expectation of a particular outcome can be dashed). Requirements: LE's look to the conduct of the public authority in the exercise of a discretionary power including established practises, conduct or representations that can be characterized as clear, unambiguous and unqualified, that has induced in the complainants a reasonable expectation that they will retain a benefit; to be taken as legitimate, such expectations must not conflict with a statutory duty. Deference to the procedural choices made by the Decision Maker Look at institutional constraints on agency / practicalities such as not overburdening system (especially if has to make 1000s of decisions), expediency, informality, etc., which can all be trade offs against requiring high PFO. The analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedures made by the agency itself, especially if statute leaves it to DM to choose the procedures itself, or when agency has expertise in determining what procedures are appropriate in the circumstances: Baker.
5)
Once you have figured out step 2, you must determine whether dealing with high or low PF level? (You figure this out by weighing the Baker factors) When you determine the level of PF, you apply this level to the following issues:
PF CONTENT ISSUES
PRE-Hearing Issues Hearing Issues POST - Hearing Issues
NOTICE Contain minimal information about the process (where, when, what is at stake) Makes right to participate more meaningful Have to refer back to Baker What content is required Highly contextual (Webb A series of discussions qualified as notice Context provided for low notice requirements)
DISCOVERY Advantages of disclosures (as discussed in Stinchecombe Given relevance to administrative law): Levels the playing field Less about resources Eliminate surprise No trial by ambush More effective preparation Leads to more expeditious hearings Fosters ability to make full defense Narrows the issues .continued next page
DELAY Blencoe Common Law: Delay Significant prejudice from an unacceptable delay Actual (evidentiary) prejudice Example: Dead witnesses, lost documents Abuse of Process Delay amounting to abuse of process Elements of abuse of process: o Inordinate (ie. Long delay) and o Unreasonable .continued next page 5 o
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Four issues that may arise What level of PF is required? 1. Form Email? Written? Advertisements? Written notice is the best and safest way to give notice For high-end matters b. Courts may sidestep the issue of form so long as recipient got actual notice Mere defect 2. Service a. High-end matters Personal service b. May have to consult the statute May have provisions that specify service procedure c. Courts will recognize the lack of reliability of the postal service Torchinsky (MAN QB 1981) Facts: Municipality mails notice for tax reassessment, delivered after limitation period. Held: Notice was ineffective Used mail at your own risk Rymal (OCA 1981) Facts: Spencer (landowner) mailed notice of appeal which arrived a day late. Held: Too bad for Spencer Should have recognized that mail is not all that reliable Ontario Hydro (Ont, 1984) Public hearing before installing a line. Service through ads (general public) Those along the proposed route got personal service (different level of interest) Problem: Advertisements Did not set out propose route and the alternate routes Eventually, picked an alternate route Held: Newspaper notice is not adequate Did not make effective participation possible Would a reasonable person understand, notwithstanding the insufficient content Hardy (BCSC 1985) Facts: Notice for school closure Held: Unreasonable to have personal service to every parent 3. Time (Length of notice before hearing) Depends on the complexity/seriousness of the matter Time to prepare for the hearing Torchinsky Far enough in advance so the party can prepare and decide whether to participate or not 4. Content What is the process, what is at stake, what are the consequences of the decision contemplated a. .continued next page
Disadvantages: Delays Abuse to increase costs (unbalance of resources) Some administrative processes are not very evidentiary Stinchcombe does not apply to administrative tribunals It stood for full disclosure of CRN to the DEF in criminal proceedings Does not mean that Stinchecombe is irrelevant to discovery at administrative tribunals More like judicial/prosecutorial proceeding Stinchecombe is more compelling Privilege may be an issue with discovery Solicitor client, litigation, class privilege, etc Note: Have to prove that you are prejudiced/disadvantaged at the time when information was withheld from you Northwestern General Hospital (Ont. Div. Ct. 1993) Does a tribunal have the authority to order discovery? Facts: There is a complaint of systemic race discrimination by the hospital HRC decides to proceed with the complaint Hospital asks for pre-hearing discovery Disclosure of all evidence gathered during the investigation period Board of Inquiry Orders for discovery (claims has jurisdiction in Statutory Powers Procedure Act, serious matter) s.8 Where good conduct, reputation is at issue (wrong-doing, character) Entitled to discovery Held: There is jurisdiction (Statutory Powers Procedure Act s.8) for the discovery order by the tribunal Stinchecombe is relevant Must know the case before them Investigatory process Fruits of the investigation are not property of the HRC Arguments of privilege fail Finds that people will still come forward despite loss of privilege Side Factor Due to judicial-like process Upping the standard of PF May v. Ferndale (SCC 2005) Facts: Security classification of inmates Using a computer program to determine it Prisoners were given notice Knew consequences, knew what the factors were Held: Movement to higher security is deprivation of liberty OK only if done in accordance with principles of FJ (meaning CL PF) Requires disclosure of information relied upon Must know the case the individual has to meet .continued next page
Factors: o Complexity, o purpose o nature at stake, o contributory delay Has to cause serious psychological harm or stigma to reputation Significant enough to bring the administrative (human rights) system into disrepute Application: Found delay was not inordinate Found Blencoe partly contributory to the delay He had made several motions and requests SCC acknowledges some of the delay is resulted from the State trying to meet procedural obligations Also recognizes that HRC cases take time Procedural protections, resources Minority: Went straight to administrative law principles Should have remedy for delay, it was an abusive process (remedy would be an expedited hearing order)
Taylor (OCA 1970) Trainer drugs a horse Trainer gets a notice Decision to be made by Racing Commission Gets suspended Challenged Argued that there was no warning of the severe penalty Held: Experienced trainer Should have known what was at stake Whether the notice is sufficient depends on all the circumstances Chester (Ont. HC 1984) Prisoner in federal penitentiary Place him into higher security du-e to conduct Notice was given That decision of transfer based on past actions and assault on staff Held: Quashed notice Ambiguity as to what the person was to answer to/what the issue was Notice lacked sufficient detail -Especially important for sufficient notice when liberty is at stake Krever Commission (SCC 1997) Public inquiry Bad blood case, HIV Inquiry as to what had happened (fact finding process) Commission invited parties to make submissions about who they felt were responsible Commission sends out notice of potential findings of misconduct Arguments against the notices Too late in the process Remedied with more time Arguments against the notices Did not know about the possible consequences Argued that they would have insisted on higher PF rights during fact finding process Held: Only issue at stake is reputation Got as much PF as needed given the consequences The public inquiry had a mandate to make accusations No evidence would be admissible in court for civil or criminal proceedings PF obligations were met Hearing Issues 1. 2. 3. 4. Written vs. Oral Public or in Camera Counsel Rights Disclosure of the Case Against
Stinchecombe does not directly apply But relevant in principles Without the weighing matrix, cannot have meaningful response to reclassification decision CIBA Geigy (FCA 1994) Facts: Allegations of excessive prices for drugs Investigated by a Board CIBA sought for full disclosure Held: Good reason to withhold the information (information about competitors) Sufficient to disclose only the information the Board will rely on The withheld information was not necessary for a defense/to know their case Far from criminal proceeding Stinchecombe carries less weight in this situation Note: Consider the context of the administrative decision compared to NWGH Nature of interest at stake: NWGH Reputation at stake, individuals of the hospital were specifically named in discrimination allegation CIBA Mainly economic interest (with slight reputation factors), no individuals named Nature of the process: NWGH More adjudicative process in human rights proceedings CIBA Regulatory in nature in the investigation of prices Amount disclosed: NWGH HRC wanted to disclose nothing CIBA Board had disclosed the information that it would rely on in proceedings with CIBA Pritchard (SCC 2004) Facts: P filed complaint with HRC against former employer HRC decided not to deal with her complaint Held: Legal opinion was privileged and need not be released Protected by solicitor-client privilege Even though it was in-house counsel Must be able to trust and be frank/candid with lawyer PF cannot disclose a privileged legal opinion
See Remedies
POST- Hearing Issues 5. Official Notice 6. Admissibility of Evidence 7. Cross Examination
1. Written vs. Oral For natural justice, that rule does not imply that there must always be a hearing Note: Time and time again, courts have said that oral hearing is not necessary for PF Singh Oral hearing was necessary Credibility was at issue, important issue at hand (refugee, torture) To decide Look at Baker factors Try to pinpoint where you are Khan v. University of Ottawa (OCA 1997) Exams at University of Ottawa Issue of standing for the year as well o Facts: Extra booklet Appeals to Faculty Committee and Senate Committee Did not appear to the Faculty Committee o Claims PF obligations (oral hearing) Says that they are calling her a liar (credibility) o Majority: Agreed that they (the Universities and committees within) are bound by PF in student disciplinary matters o Loss of academic year, loss of educational standing Serious matter at stake o Should have had oral hearing Credibility was at stake Relied on Singh o Only needed to show that the breach of duty of fairness may reasonably have prejudiced her Not actual prejudice o Dissent: Adding an additional semester to complete is not a serious matter o It was not an issue about credibility No allegations were made about her or her character 2. Public or In Camera Presumption that hearings are public -If formal hearing (more judicial like) More likely public (unless good reason or statutory authority) Reasons for in camera: Personal security and Privacy interest of individuals (especially with respect to intimate matters) Note: Exception of Convention refugee hearings before the Immigration and Refugee Board Administrative Tribunals Act Oral hearings should be open to the public Tribunal has discretion to hear things in camera If there is a strong reason to do so 3, Counsel Rights Not guaranteed right however Whenever someone is compelled to testify, they have right to counsel Common law Lawyers are required when it is necessary to ensure the procedure is fair New Brunswick Minister of Health Provides the factors to determining if right to have counsel: (i) Have to look at seriousness of issue (ii) Complexity of the issue (iii) Capacity of the person affected at the hearing (iv) Other factors: Expediency, economy of the hearing (costs) Howard v. Stony Mountain Institution (FCA 1985) Charged with offences (possession of narcotics, threatened assault, etc) Statutory remission days that were earned, solitary confinement Serious liberty matters at stake Sought counsel Was denied Point became moot by time of trial Held: Heard the matter because it was an important issue and likely to recur in the future Setting precedent Factors to consider when determining to allow legal representation (not exhaustive): 1. The seriousness of the charge and of the potential penalty. 2. Whether any points of law are likely to arise 3. Capacity of a particular prisoner to present his own case: Given seriousness and complexity, need an unusual capacity He did not have it 4. Procedural difficultieswhen prisoners are not allowed to call witnesses and directly cross-examine or test evidence 5. The need for reasonable speed in making their adjudication 6. The need for fairness as between prisoners and as between prisoners and prison officers Considered a complex case (many different offences, one charge was very vague and difficult to defend) Re Parrish (FCTD 1993) Facts: Inquiry (no penalties involved) Captain brings two lawyers Investigator refuses to allow counsel Argued unnecessary delay and frustrate the gathering of facts Held: Entitled to counsel rights The duty to act fairly implies the presence of counsel when a combination of some or all of the following elements are either found within the enabling legislation or implied from the practical application of the statute governing the tribunal: 1. where an individual or a witness is subpoenaed, required to attend and testify under oath with a threat of penalty; 2. where absolute privacy is not assured and the attendance of others is not prohibited; 3. where reports are made public; 4. where an individual can be deprived of his rights or his livelihood; or 5. where some other irreparable harm can ensue. o I do not intend this list to be exhaustive
4. Disclosure of the Case Against What information is being relied upon in the decision Right to know the case against you Stinchcombe Need opportunity to address that information that is critical to the decision The higher the PF required (as per the Baker factors), the more likely there will be required full disclosure continued next pg
Examples of Disclosure Problems (Both successful): Abel Psychiatric institution Reports from the psychiatric institution used in the decision process were not disclosed Suresh Claimed right to have immigration officers report (that made recommendations for deportation to the Minister) Kane v. Board of Governors of the University of British Columbia (BCSC 1980) Facts: Professor at UBC Suspended for misuse of computer activities by the President Appealed to Board o Board deliberates (with the President) President was ask more questions, answered them o Disclosure Kane did not have all information on which Board made final decision No chance to respond o Held: When Board decided it needed more information, should have reconvened so both parties were present o Minimally, should have given opportunity to respond (even through written submissions) o Did not matter whether new evidence was prejudicial or not Fact that it might be is good enough interest Worker Compensation Medical files o Also argued disclosure would prevent frankness in the medical reports Doctors will pull their punches o Disability rights Given summaries, not given the actual reports Denial of full disclosure o Held: Succeeds At stake is livelihood (disability payments) Relatively high standard of PF o Summaries not sufficient to comply with natural justice o How can he make his case without knowing the details, without ability to address the specific items o Rejected the arguments about protection and frankness o Doctors will not be affected by disclosure o Less tolerance for the idea of being paternalistic o Full disclosure in fact is more likely to lead to frankness and accuracy because of accountability Factors for full disclosure: Statutory right was at stake (right to be compensated) Not just a privilege or interest System was a substitute for tort law Important factor Seriousness of the issue (deciding compensation levels) Large number of reports meant he couldnt adequately respond without seeing the entire document
5. Official Notice An exception to the idea of disclosure Official notice Certain kinds of things a d/maker can take official notice of (no cross-examination) Factors to be taken when considering official notice: Adjudicative v. Legislative Degree to which the facts are critical or periphery Certainty of the facts Note: Adjudicative facts Cannot be taken notice of Note: The safe side is to let the parties know and let them make submissions Innisfil (SCC 1981) Facts: Township of Barrie wanted to annex surrounding lands for expansion o Board relied on its expertise to take official notice of the amount of vacant industrial land to include o Held: It was okay for the Board to take official notice of the formula to be used to calculate industrial land to be annexed o It was part of their expertise and was relied on in a previous case Judicial notice Can only be used in two circumstances: (i) Facts that are notorious that they are not in dispute (ii) Facts that are determinable by sources of accuracy Admin d/makers Official notice: (i) Facts that are notorious that they are not in dispute (ii) Facts that are determinable by sources of accuracy Information within their expertise Appointed for expertise, expected to use it Example: Ontario SPPA Official notice encompasses: Judicial notice And any generally known scientific or technical facts it its specialized knowledge
6. Admissibility of EV Rules of EV dont usually apply. Sometimes statute of T says rules apply. What maybe inadmissible HS in court may be also excluded in T. T should be cautious when refusing to hear EV. Rule T should admit EV subject to weight.
7. Cross-Examination There is no absolute right to cross examine even in oral hearings Full oral hearings usually have cross-examination rights unless overriding concerns More like judicial system, more likely to resemble adversarial model and have cross-examination rights For cross-examination rights: Necessary to get at truth or respond to the case against you Against cross-examination rights: Adequate opportunity to be heard and reply was given already Innisfil Prospective population figure of Barrie From government publication Adversarial battle between townships o Barrie puts into evidence a letter from the Provincial Minister Board decides that is the final word o Held: Mere fact government had a policy did not mean that it was uncontestable o Wrong to deny cross-examination of the person who brought in the letter of the population figure Adjudicative fact that required determination Entirely appropriate to allow cross-examination Denial of cross-examination is denial of PF Relevant statutes in the process: o SPPA Hearing must hear any objection a person may choose to bring o SPPA Must allow cross-examination where reasonably necessary for full an fair exposure of the facts Court will not deny a remedy by reason that the defect would have made no difference Whether cross-examination would have made a difference to the outcome is irrelevant When credibility is at stake Should be able to cross-examine Reason: Cross-examination is a good way at getting at the truth MacLab (Alberta 1971) Rezoning application Facts: Expert could not be found for cross-examination Opposition could file and did file their own expert reports o Held: Found that the opportunity to file contrary expert reports were adequate for a fair trial o Fair and effective means to address the evidence o Regulatory process, legislative Low end PF obligations are owed
POST- Hearing Issues
Is there a Duty to Give Reasons? Baker First case where it was declared that there can be a duty to give reasons, and this was later affirmed in Suresh Baker est that the DMs have a duty to give reasons whenever important interests are at stake. However in Baker the notes of a junior officer were deemed to satisfy the reasons requirement even though this officer did not make the final decision, and even though the notes were so riddled w/ stereotypes and prejudice that the court found them to give rise t RAOB. H/w b/c the duty to give reasons is part of the duty of PF, crt wil usually review it on a standard of correctness. Duty of PF requires reasons where Decision has important significance to the individual or; Statutory right of appeal or; (not simply a possibility of judicial review) In other circumstances More of a general feel of the nature of the decision (contextual analysis) Usually easily met Issue is the content of the duty to give reasons Baker was only given notes Content is determined by the Baker factors Why it is good to give reasons (policy reasons): o More accountability o Value for appeal and judicial review o Legitimacy, fairness o Better decisions They have to think carefully, construct a rational argument supporting decisiono Allow for more consistent decision making Less arbitrary (or the appearance of)
Problems: Delays, inefficiencies Contrary to expediency ideal of administrative goals Can result in canned reasons Lead to a more formal process when the whole point of the endeavor was to have an informal one Reasons should contain: VIA Rail Canada Inc. v. National Transportation Agency [2001] 2 FC 25 (CA) (footnotes omitted) the decision-maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision-maker must be set out and must reflect consideration of the main relevant factors.
See Remedies
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INDEPENDENCE/IMPARTIALITY
Key feature of a fair proceeding is that DM and the process does not have any undue preferential treatment or be driven by preconceived notions. The mere perception of partiality towards a particular outcome or bias, provided that the perception is reasonable, is enough to have a decision overturned. An impartial DM is one who is able to make judgments w/ an open mind, that is, one who comes to the DM-ing table w/out his mind already made up. Independence is said to be a means of achieving impartiality.
Source of Guarantee of an Independent and Impartial Tribunal At CL, the principles of natural justice are encapsulated in 2 central ideas. 1. is that a DM should neither judge her own cause nor have any interest in the outcome of a case before her. This idea is generally known as the rule against bias. 2. Requires DM to hear and listen to both sides before making a decision. Two types
1.Institutional independence: Step 1: the question here is the extent to which the administrative agency must be free (and must appear to be free) from interference or control by others, particularly others within the executive or political branch R v Valente was the 1st SCC case to suggest the idea that the guarantees for judicial independence could also be applied to a variety of Tribunals. Step 2: The test for tribunal independence is whether a reasonable well informed person having thought the matter through would conclude that an admin DM is sufficiently free of factors that could interfere with his ability to make impartial judgments. (unless this test is breached, the Ts are independent enough) Matsqui Indian Band: Test for institutional independence must be applied in light of the functions being performed by particular tribunal at issue. The level of independence will depend on o the nature of the tribunal, o the interest at stake, and o other incidences of independence such as oaths of office.
NOTE: Admin tribunals do not have to meet the same degree of independence as the courts. Ocean Port Hotel: NO FREE-STANDING constitutional guarantee of independence for administrative tribunals. Because constitutional guarantees of independence serve primarily to protect the judiciary from interference from the executive, they cannot protect tribunals from the branch of government of which they are a part. The only way that constitutional protections can be afforded to Ts is if the actions of the particular T triggered the protections offered by the Charter or by a prov or fed qausi constitutional statute. Pleasure Appointments The problem with at pleasure appointments is that they theoretically enable the govt to fire a DM whose decisions are not in line with its expectations. Ocean Port Hotel: This case is important because it attempted to lay to rest the controversial issue of whether at-pleasure appointments provide a satisfactory degree of independence for Dms sitting on tribunals that impose penalties.
2.Individual independence: independence of mind of each of the individual decision-makers who are assigned to make a particular decision from other members of the agency who have not been assigned to hear that particular case and from the staff of the agency including the legal advisors he/she who hears must decide without interference from others who did not hear [arises for example in institutionalized or collegial d/making as in Consolidated-Bathurst; Tremblay] Same test as institutional independence Sub delegation & Collegial Decision Making In a trilogy of cases, Consolidated-Bathurst, Tremblay and EllisDon, the SCC set out guidelines that tribunals should follow so that members can collaborate within their institution to promote consistency of outcome without compromising the adjudicative independence of any one DM Consolidated Bathurst says yes to collegial DM: o Should allow some collegial decision making since advantages outweigh the disadvantages: See arguments for and against delegation / collegial decision making above o Need to balance institutional concerns (such as consistency) against PF concerns (such as parties not being present at full Board meeting) Collegial decision making entirely permissible if: 1. Consultation MUST not imposed, but voluntarily requested by panel (unlike Tremblay below) 2. No attempt to create a consensus (no vote, no minutes) 3. Ultimate decision left up to the panel-- OK for full Board consultation to influence panel members so long as it does not amount to coercion (i.e. impose a decision on them) or constrain their decision (i.e. must not impinge on their ability to freely decide according to their own conscience / opinions). 4. Consultation process MUST NOT consider facts or introduce new facts, but OK to discuss law and policy. If panel considering a new policy / legal interpretation as a result of full Board meeting then they must give the parties an opportunity to be heard on that matter. *****Arguments for and against Collegial decision Making look at Kendalls Notes*****
Note http://tlaing.com/lawnotes/at-admin-2.pdf
If LACK of Independence: Then the decision will be quashed.
If SUFFICIENT Independence Decision left standing
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NOTE: Tribunal Independence is not enshrined by the Constitution 1.Tribunal independence not constitutionally protected: The enshrined constitutional protection of judicial independence espoused in Reference Re Remuneration of Judges of the Provincial Court (PEI) CANNOT be translated into the context of administrative decision making bodies. Judicial independence has historically developed to protect the judiciary from independence from the executive. By contrast, administrative tribunals are not separate from the executive branch. Tribunals are created precisely for the purpose of implementing the policies of the executive brach; in doing os they may be required to make quasi-judicial decisions. 2..Degree of independence, a matter for Parliament: AT's primary function as policy-makers and their status as extensions of the executive branch of government make their degree of independence a question most appropriately determined by Parliament or the legislature. 3.Tribunal independence is a CL principle such that it can be ousted by express statutory language or necessary statutory implication, so long as the statute is constitutionally valid. Thus absent constitutional or quasi-constitutional constraints, degree of independence can be set by statute, although court can fill in any missing gaps and when doing so will not assume legislature intended to go against natural justice (and hence rule against bias applies) unless legislation explicitly says so.
BIAS
Natural justice has 2 limbs: audi alteram partem (hearing rights) and nemo debet judex in propria causa sua debet esse no one ought to be judged in his or her own cause i.e. rule against bias. Rule against bias originally applied only to judicial or quasi-judicial administrative decision making, but now applies to all kinds of administrative decision making (see Energy Probe and Old St. Boniface) and so can consider it a part of PF generally. As with hearing rights, rule against bias varies with context e.g. nature and impact of decision, etc, with greater leniency in discretionary / policy decision making, less leniency in more individual adjudicative proceedings (see Energy Probe)
Purpose of the rule against bias: 1. Foster public confidence administrative decision making, leading to legitimacy / acceptance of decision. Justice must not only be done but must also be seen to be done. 2. To promote fairness, since not properly heard if decision maker biased. 3. Rule of law requires laws to be applied equally / without discrimination to people regardless of connections / status / sex / etc. Effect of Bias: if bias found to exist then it disqualifies the decision maker and voids the decision, because biased decision maker has no jurisdiction to made decision (legislature assumed to have intended there would be no bias). Can ask decision maker to disqualify themselves, but if refuse can seek prohibition in JR. If decision already made can seek JR for certiorari or declaration of invalidity to quash the decision. Meaning of bias: doesnt mean any and all predispositions / previous knowledge (expertise is often meant to be used by tribunals, and sometimes advocates for a particular cause are appointed specifically to represent that cause). Dont have to prove actual bias (which is difficult since it is hard to get inside the decisions makers head and it is inappropriate to examine decision makers on why they decided as they did). Rather, concerned with reasonable apprehension of bias (RAOB).
Process of Dealing with Bias The party affected should raise the matter with the decision maker who should disqualify him/herself (recuse) If the decision maker does not disqualify self the party alleging bias: 1. might try to seek JR immediately (but then could be met with prematurity):or 2. might decide to continue in the proceeding while continuing to maintain the bias objection if they lose then they can seek JR Absence of Actual Bias not Enough, there must also be no appearance of bias Justice must not only be done but must also be seen to be done Rv Sussex McCarthy The perceptions of the public are very important and public confidence in the decision-making will not be achieved unless the appearance of bias is avoided (as well as actual bias itself) Categorization of bias (leniency can depend on type, e.g. even $1 of pecuniary interest will automatically disqualify, more relaxed for other types): 1. Pecuniary interest: does decision maker have monetary interest in outcome (for self or close relative). Frequently called conflict of interest (though this applies to other types of bias as well). 2. Personal relationships: decision maker has a past or present relationship (e.g. family, business, group membership, etc.) with parties or their counsel or someone with a pecuniary interest in the case, either friendly or acrimonious. 3. Attitudinal / predisposition bias: pre-existing relationship between decision maker and the specific issues before them e.g. where decision maker has previously expressed strong views on the subject or has had prior involvement with a specific file 4. Structural bias / overlapping functions: whole process called into question because of the way the process has been institutionalized / how the structure works, perhaps caused by the legislation e.g. same officials investigate then become decision makers, or subtle pecuniary interest built into
5. the process Personal animosity (sometimes called actual bias): not pre-existing, but during hearing hostile questioning, rude to one party, open antagonism (fine to be rude to both parties)
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Pecuniary Interest A direct pecuniary interest in the outcome is automatic disqualification of a d/maker (even for trivial amounts) Need to maintain appearance of impartiality for the public Dimes (HL 1852) Held shares in a company, made a decision that benefited his economic interest Maxim No judge should be a judge in his own cause Case law Recognizes direct and indirect pecuniary interest Re Energy Probe (FCA 1984) Facts: Atomic Energy Control Board Question of renewing license of Ontario Hydro regarding a facility Sold cable to Ontario Hydro in the past Argued would sell to Ontario Hydro in the future Held: Not a direct pecuniary interest Not certain that a benefit will ever arise Too remote (open tender process) -Mere possibility is insufficient. Requires a relative certainty that there is a direct pecuniary interest for automatic disqualification Pearlman (SCC 1991) Indirect pecuniary interest Facts: Challenges law society disciplinary committee on basis of bias Two arguments: o 1) Pecuniary interest Cost provisions If Society had to pay the costs, they would have to increase member fees o 2) RAOB Removes him from competition from the legal services market Held: Any pecuniary interest is indirect (too remote) Appropriate test to apply is RAOB for indirect pecuniary interest No perceived pecuniary interest due to cost provisions No RAOB Reasons for not being a direct pecuniary interest: No profit is possible here, only recouping loss. Too remote to attach pecuniary interest to an individual member of the law society. Any dollar benefit to the individual person is miniscule Note: Disclosure of pecuniary interest and waiver of the matter can resolve small, miniscule interest Note: Statutory authorization will be used Also found in Burnbrae (Agricultural producers are appointed to boards) Some statutes will say that small pecuniary interests will not matter Exception: Close competition circumstances
Imperial Oil (SCC 2003) Illustrates the need to take a contextual approach Facts: Minister can order party responsible to undertake research, studies, and clean it up (broad statutory powers granted) Before making this order, certain procedures need to be followed Notice to be given, opportunity to respond, etc Happened that the Ministry had been involved in a clean-up of the same very site and failed. Ministry was being sued For botched attempt to decontaminate Trial Lack of appearance of impartiality Appeal Relies on the doctrine of necessity Who else can order this to be done Held: Contextual analysis. Ministers duties to impartiality is not the same as an adjudicative decision maker like a judge Minister is protecting public interest, implementing policy It is discretionary, policy-centered Not adjudicative Minister has no personal interest himself (similar to the situation in Pearlman) Only interests he had was representing the public interest in protecting the environment He had followed the PF obligations set out in the legislation Burnbrae (FCA 1976) Egg farmers disciplinary board Board withdrew the producers license Argued bias Members in agency were producers in other provinces Interests conflicted with the producer Held: Too remote Statutory scheme was to select producers in other provinces No bias by virtue of the fact that they have similar business backgrounds with economic interests Moskalyk Small town Three drug stores One pharmacist has a suspension hearing, competitor pharmacist was sitting Very close competition between person in front of the board and the person sitting on a committee Found RAOB Matsqui (SCC) Argued pecuniary bias Indian bands were called upon to adjudicate on appeals by non-Indians against tax assessments levied against them in relation to their use of land on Indian reserves Held that there was important interest in having band members sit on appeal tribunals Finds that the inclination to increase taxes was too remote to constitute a RAOB Income raised does not accrue to any individual Cites Pearlman No personal and distinct interest on the part of the tribunal members Theme: Benefits the public or a large sector of the community will generally not result in disqualification Need direct pecuniary interest to the individual sitting on the agency Waivers Note: Waivers can be crucial with pecuniary interest (especially small amounts) For waiver to be effective Waiver must be made with full knowledge of the facts Preferred to be done explicitly on record, but can be done implicitly if the party knows and does not object All parties who could object must waive Likely a limit to who much can be waived (dollar amounts) Otherwise, risking public confidence.
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Depending on type of bias, there are different tests to use when determining whether bias exists They are: In determining the test, must determine whether the decision matter is adjudicative or administrative. If more adjudicative, more stringent standard of test should apply, if administrative, the test can be applied flexibly. Standard Test for RAOB TEST: Justice de Grandpre in Committee for Justice and Liberty a RAOB will exist where a reasonable person, well informed about all the facts concerning the d/maker, would conclude that the d/maker may be influenced to favour or disfavour one side or the other b/c of some kind of interest or prejudice the d/maker has in the outcome need NOT show that the apprehended bias actually affected the decision, it is enough if it might reasonably be perceived to have done so Justice Cory in R. v. S. (R.D.) says the RAOB test has a two-fold objective element: 1. person considering the alleged bias must be reasonable; and 2. the apprehension of bias must also be reasonable in the circumstances of the case This reasonable person also: - must be informed of all relevant circumstances; and - must not have a very sensitive or scrupulous conscience Standard Test Applied Flexibly In administrative decisionmaking, RAOB test is applied on a kind of spectrum to account for different contexts KEY: There are differing levels of tolerance for pre-existing attitudes, prior involvement, relations, depending on: 1. the nature of the decision, 2. the nature of the decision/maker, and 3. the applicable statutory provisions If the decision making more court like, the RAOB test applies more strictly then when decision making is discretionary, policy-based, legislative (see Imperial Oil) Relaxed Test for bias: when it is alleged that such d/makers have pre-judged a matter, or have an inappropriate level of predisposition towards an issue, the test the courts will use is whether they have kept an open mind and remained amenable to persuasion they must not have a closed mind. Has applied: Where elected decisionmakers such as municipal councillors are concerned (Old St. Boniface Res. Ass, Save Richmond); and in cases of policy-oriented boards, particularly where board members are expected to be representative of particular interests (Newfoundland Telephone) Alternative Test Exist in relation to: Pecuniary Interests test for bias: the test for pecuniary interests bias is stricter in theory as it is said that any direct personal pecuniary interest in a matter is enough to disqualify; bias is presumed and disqualification is automatic, without regard to the RAOB test (see Energy Probe)
Once you have determined the type of bias at issue, and having applied the correct test to determine if there is bias, determine from below if there are any justifications for it. EXCEPTIONS/DEFENCES TO BIAS ALLEGATIONS There are 3 defences: 1. Statutory Authorization Where a statute expressly or by necessary implication authorizes a d/maker to decide a matter, despite what might otherwise be seen as a disqualifying bias, the statute governs and statutory authorization is a complete defence (Brosseau) To overcome this one must resort to a rights document such as Charter s. 7 or (if the d/maker was a federal one) the Bill of Rights i.e. attempt to use the rights document to trump the statute and strike down the provision that authorizes the allegedly biased d/maker to decide Necessity If a d/maker who labours under disqualifying bias would be the ONLY POSSIBLE d/maker who is authorized to make the decision in question, this will be accepted and the decision-maker can decide, despite the RAOB; otherwise there would be a failure of justice Waiver parties who know about bias can waive it expressly or impliedly an implied waiver can occur only if the person alleged to have waived knew about the bias and knew also that they could object to it, but nevertheless elected to proceed without making an objection and thereby lose their right to complain about the bias waiver is a discretionary ground on which the court can refuse relief to the applicant found to have waived their right to object
2.
3.
NO JUSTOFICATION If bias, and no defenses, then the court with quash the decision, and remit it back to the tribunal for another DM.
YES Justification Decision will stand
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INSTITUTIONAL DECISIONS Consolidated Bathurst Delegation: The Legal Doctrine

Basic Rule: Cannot delegate authority unless the statute provides for it Purpose of Delegation: Have also constructed the need to have administrative efficiency, considering the volume of work, and range and complexity of issues Need to look at consistency of decisions and the power of the chairman to affect the outcome NOTE: For adjudicative decisions, less likely to accept delegation than for policy decisions. Willis, "Delegatus Non Potest Delegare" (1943), 21 Can. Bar Rev. 257-61 If the authority named in the statute has and retains a general control over the activities of the person to whom it has entrusted, it is still delegation. NOT Delegation if: If, however, the authority exercises such a substantial degree of control over the actual exercises of the discretion so entrusted and it can be said to direct its own mind to it, there is in law no "delegation" and the maxim does not apply. o The word "personally" is to be read into the statute Cant Delegate following: Disciplinary powers, whether "judicial" or not, cannot be delegated Vine v. National Dock Labour Board delegatus non potest delegare, a delegate may not re-delegate Principle of Non-Delegation also requires: The principle of non-delegation also requires that all members of the tribunal hearing a dispute participate in a substantive sense in the making of the decision. o IBM Canada v. Deputy Minister of National Revenue, Customs and Excise, [1992] 1 FC 663 (FCA), that at some point in time, the panel must reach a decision collectively and each member must "participate" individually in that collective decision in agreeing with it or dissenting from it. There has to be a meeting of the minds, each member being informed at least in a general way of the point of view of each of his colleagues.
DECIDING WITHOUT HEARING

General Rule: only those members of an agency who hear a particular case may decide it Delegating the Duty To Hear Minister at the head of the board is expected to obtain his materials vicariously through his officials, and he has discharged his duty if he sees that they obtain these materials for him properly. To do everything personally would be to impair his efficiency. Local Government Board v. Arlidge Minister is responsible to parliament, but the minister must be able to delegate NOTE : In Canada, some decisions exceptionally require the minister's personal decision Delegation doctrine and the rule that only those who hear may decide lead to: Ramm o the people that hear the evidence are the people are the ones who are entitled to decidecant have new members in the course of the trial o need quorumcant lose members either Remedy: court can quash decision
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Consulting With Other Agency Members: Deciding Without Hearing and Bias
General Rule: Discussion allowed when only policy discussion is at issue Any consultation must deal with what was dealt with in the panel If there is new issues discussed, you must put it to the parties first Purpose of Consultation (board meetings): Consolidated-Bathurst Packaging Ltd Broader ramifications Get perspective from other chairs (experts) Consistency Determining Permissibility of Consultation (board meetings): Consolidated-Bathurst Packaging Ltd Importance of public issue Whether there was concern for having consistent decisions Pros and cons of having these discussions in the absence of the parties NOTE: the danger that full board meetings may fetter the judicial independence of panel members does not create a reasonable apprehension of bias or lack of independence (Liberty test) Criteria for Independence The criteria for independence are not absence of influence but rather the freedom to decide according to one's own conscience and opinions. Full Board Meetings and the Audi Alteram Partem Rule Full board meeting consultation process does not violate the audi alleram partem rule provided that factual issues are not discussed and that the parties are given a reasonable opportunity to respond to any new ground arising from such a meeting Plenary Meetings: Plenary meetings may be a consultation tool but they should not be imposed on decision-makers and should be held in such a way as to leave decision makers free to decide according to their own consciences and opinions. Tremblay v. Quebec (Commission des affaires sociales) Examination of Consultation Documents: The examination will not be permitted unless the party proposing it can present some basis for a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed. Examinations based on conjecture or mere speculation will not be allowed. Payne v. Ontario (Human Rights Commission)
Writing & Reviewing Reasons for Decision

At the Hearing in an adversarial proceeding, less active intervention on the part of tribunal counsel is likely to be allowed by the duty of fairness than in a proceeding that is more inquisitorial The Preparation of Reasons 1. First, the decision made must be that of the tribunal members themselves [and not the lawyers working on staff]. For this reason, counsel who, without the consent of the parties, retire with the tribunal while it deliberates may thereby create a reasonable apprehension of bias: the participation of a nonmember in making the tribunals decision. 2. second, the reasons for decision must be in substance those of the tribunal members, not their clerk's or their counsel's. Factors Determining the Propriety of Procedures used in the preparation of reasonslook at its effect on overall integrity of process: Khan The nature of the proceedings, the issues raised in those proceedings, the composition of the tribunal, the terms of the enabling legislation, the support structure available to the tribunal, the tribunal's workload, and other factors Clerk Help in Drafting Reasons The deliberations, the findings and the decision, were all made without input from any third party. The clerk did not participate in or influence the findings or the decision. No part of the decisional process was delegated. Therefore, the reasons were the reasons of the Discipline Committee and there can be no reasonable apprehension of bias. Spring v. Law Society of Upper Canada Counsel Involvement OK if (factors not determinative entire process must be considered): Khan 1. A Committee member prepared the first draft of the reasons. 2. Counsel, with the chairman of the Committee, revised and clarified the first draft but did not write independently of that draft. 3. The Committee met to consider and revise the draft as amended by counsel and the chairman; counsel played no role in this review and revision. 4. The final product which emerged from the drafting process was signed by each member of the Committee Reasons Review if there was a factual inconsistency in the reasons, to look at the file in order to determine, if possible, how the inconsistency could be resolved. Bovbel
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Agency Guidelines
if there is a guideline, there must be express authority by the statutemoreover, it is not binding
Consolidated Bathurst
The members of a panel who actually participate in the decision must have heard both the evidence and the arguments presented by the parties. The presence of other Board members at the full board meeting does not, however, amount to "participation" in the final decision. Discussion with a person who has not heard the evidence does not necessarily vitiate the resulting decision because this discussion might "influence" the decision maker. Decision makers cannot be forced or induced to adopt positions they do not agree with by means of some formalized consultation process. A discussion does not prevent a decision maker from adjudicating in accordance with his own conscience and does not constitute an obstacle to this freedom. The ultimate decision, whatever discussion may take place, is that of the decision [page284] maker and he or she must assume full responsibility for that decision. Board members are not empowered by the Act to impose one member's opinion on another and procedures which may in effect compel or induce a panel member to decide against his or her own conscience or opinion cannot be used to thwart this de jure situation. The criteria for independence are not absence of influence but rather the freedom to decide according to one's own conscience and opinions. The full board meeting was an important element of a legitimate consultation process and not a participation in the decision of persons who had not heard the parties. As practised by the Board, the holding of full board meetings does not impinge on the ability of panel members to decide according to their opinions so as to give rise to a reasonable apprehension of bias or lack of independence. For the purpose of the application of the audi alteram partem rule, a distinction must be drawn between discussions on factual matters and discussions on legal or policy issues. Evidence cannot always be assessed in a final manner until the appropriate legal test has been chosen by the panel and until all the members of the panel have evaluated the credibility of each witness. It is, however, possible to discuss the policy issues arising from the body of evidence filed before the panel even though this evidence may give rise to a wide variety of factual conclusions. These discussions can be segregated from the factual decisions which will determine the outcome of the case once a test is adopted by the panel. The purpose of the policy discussions is not to determine which of the parties will eventually win the case but rather to outline the various legal standards which may be adopted by the Board and discuss their relative value. Policy issues must be approached in a different manner because they have, by definition, an impact which goes beyond the resolution of the dispute between the parties. While they are adopted in a factual context, they are an expression of principle or standards akin to law. Since these issues involve the consideration of statutes, past decisions and perceived social needs, the impact of a policy decision by the Board is, to a certain extent, independent from the immediate interests of the parties even though it has an effect on the outcome of the complaint. On factual matters the parties must be given a fair opportunity for correcting or contradicting any relevant [page285] statement prejudicial to their view. The rule with respect to legal or policy arguments not raising issues of fact is, however, somewhat more lenient because the parties only have the right to state their case adequately and to answer contrary arguments. This right does not encompass the right to repeat arguments every time the panel convenes to discuss the case. The safeguards attached by the Board to this consultation process are sufficient to allay any fear of violations of the rules of natural justice provided the parties are advised of any new evidence or grounds and are given an opportunity to respond. The balance so achieved between the rights of the parties and the institutional pressures the Board faces are consistent with the nature and purpose of the rules of natural justice. In the instant case, the policy decided upon was the very subject of the hearing when the parties had full opportunity to deal with the matter and present diverging proposals which they did.
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REMEDIES
Are all discretionary, and applicants for remedy do no need to show adverse affect. NOTE: For JR court does not have authority to substitute its own decision , for that of the DM. It is only when dealing with statutory right of appeal does the court have authority to substitute its own decision, for that of the decision maker.
Remedies available through prerogative writs: Certiarori to quash or set aside a decision Prohibition to order a tribunal not to proceed Mandamus to order the performance of a public duty Habeus Corpus to determine the legality of a persons detention Private law/equitable discretionary remedies of: Declaration Injunction The Judicial Review Procedure Act s.2(1) makes all the remedies available in one application for judicial review.
Discretionary basis for Refusing a Remedy: On JR coirts have discretion to refuse a remedy even where one is clearly warranted by the facts of a case: Lafontaine The most important basis for refusing to grant a remedy in JR is that adequate alternative remedies are available. Ps should exhaust all prescribed ave of appeal before proceeding to the last resort of JR. JR applications that are brought before T proceedings have been concluded are usually dismissed as being premature. Even if stat time limits for filing JR have been met, Ps must be aware that delay and acquiescence may be bases for court to refuse remedy: Immeubles Port Lewis Remedy in JR will not be granted where issues are moot. Court will use its discretion to refuse to grant a remedy on JR where P making JR app does not come with clean hands. -Mootness Will hear the case even if a moot point If ruling on an important matter and particularly if the matter is likely to recur: Howard -Delay Delay in bringing judicial review application Unreasonable delay in bringing application for JR and others would be prejudiced by allowing to proceed Note: Federal Court Act (s.18.1(2)) Applications must be brought within 30 days of decision Note: BC Administrative Tribunals Act s.57 Application must be commenced within 60 days of decision May extend time if court is satisfied that there are: Serious grounds for relief Reasonable explanation for delay No substantial prejudice or hardship will result to a person affected by the delay Note: BC Judicial Review Procedure Act s.11 Application is not barred by the passage of time unless: Specified in an enactment Court considers substantial prejudice or hardship would result Court retains overriding discretion to refuse relief on grounds of unreasonable delay -Misconduct (clean hands) Remedies in administrative law are discretionary Clean hands doctrine Evaded responsibility for costs Homex Realty -Waiver Party who has knowledge of all the facts and of legal rights may waive a breach of PF Waiver may be express and sometimes implied (depends on all the circumstances) Failure to object will not readily be construed as a waiver If objection is made, continued participation in the process is not a waiver Prematurity Related to exhaustion principle JR is last resort Reasons: Defect may be corrected in the admin process They may succeed in process despite complaint Adequate alternate remedy Closely related to prematurity Premature if applicant has not explored adequate alternative avenues Follow statutory appeal process to external body that has the power to grant an appropriate remedy Does not preclude possibility of subsequent application for JR once alternate processes are completed To determine if the internal appeal or review mechanism is an adequate alternative Factors: Nature of the internal appeal body Powers and process Jurisdiction to remedy the problem? Convenience of the alternate forum Costs, expeditiousness Procedures and capacities of the body Will there be bias? Is it sufficiently independent Take into account the interests at stake and the extent interests may be prejudiced by the initial decision Example: Zahab (Ont 1991) Doctor had hospital privileges suspended following process that breached PF obligations Statute said he had right to appeal in a new full hearing http://tlaing.com/lawnotes/at-admin-2.pdf Held that existence of appeal process did not save situation Quashed decision Revocation had immediate serious consequences Irreparable harm to reputation (prejudice of the initial decision)
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CONSTITUTIONAL AND QUASI-CONSTITUTIONAL SOURCES OF PF AND STATUTORY AUTHORIZATION

There are procedural rights that are conferred by the Charter and Bill of Rights. Charter Charters application is restricted the Parliament and government of Canada, the legislatures and the government of the provinces. Who is government? o The statutory authority that is not in general government becomes subject to the Charter when charged with responsibility for the effectuation of government programs. Eldridge v. British Columbia
Bill of Rights Federal statue, its area of application is confined to the federal domain S5(2) and (3). This applies to the laws of Canada, which includes Acts of Parliament, and any order, rule or regulation thereunder, and also any law in force in Canada S 5(2). Principle procedural protections found here are under s1(a) and S2(e) s.1(a) of the BoR Enjoyment of property and the right not to be deprived thereof except by due process of law s.2(e) of the BoR Direct right to a fair hearing for determination of rights and obligations (in accordance with principles of fundamental justice) Jurisprudence suggests that principles of FJ mirrors the CL Singh Whether a person has refugee status is determination of rights and obligations
When should you use constitutional or quasi-constitutional arguments?

1. 2. Counter defense of statutory authorization Where you want more or better quality procedures Problem Constitutional procedures seem to follow the CL procedures (not likely to make a difference) If you can go to the Charter, you always want to go Constitutional rather than quasi-constitutional Only choose Bill of Rights when it covers ground that the Charter does not Charter covers only individuals (Everyone) whereas BoR covers persons (could include corporations) BoR has no saving provision (s.1 in the Charter) where there is a balancing of interests
Admin & Charter Step 1: AT Jurisdiction over the Charter

STEP 1: Does the T have jurisdiction to hear Charter Issues: Issue is whether admin tribunals as creatures of statute have auth to interpret and apply the Charter to their enabling legislation for the purpose of refusing to give effect to provisions found to violate the Charter. General Principle: Administrative tribunals which have jurisdiction, explicit or implied, to decide questions of law arising under a legislative provision are presumed to have jurisdiction to decide the constitutional validity of that provision. Explicit jurisdiction must be found in the terms of the statutory grant of authority. Martin o In Martin The legislature expressly conferred on the Appeals Tribunal the authority to decide questions of law by providing, in s. 252(1) of the Act, that it "may confirm, vary or reverse the decision of a hearing officer" exercising the authority conferred upon the Board by s. 185(1) of the Act to "determine all questions of fact and law arising pursuant to this Part". Authority to grant REMEDIES: It follows from Mills that statutory tribunals created by Parliament or the Legislatures may be courts of competent jurisdiction to grant Charter remedies, provided they have jurisdiction over the parties and the subject matter of the dispute and are empowered to make the orders sought. Implied Jurisdiction Implied jurisdiction must be discerned by looking at the statute as a whole. Relevant factors will include: o the statutory mandate of the tribunal in issue and o whether deciding questions of law is necessary to fulfilling this mandate effectively; o the interaction of the tribunal in question with other elements of the administrative system; o whether the tribunal is adjudicative in nature; and o practical considerations, including the tribunal's capacity to consider questions of law. Practical considerations, however, cannot override a clear implication from the statute itself.
Rebutting Presumption of Jurisdiction The party alleging that the tribunal lacks jurisdiction to apply the Charter may rebut the presumption by pointing to an explicit withdrawal of authority to consider the Charter; or by convincing the court that an examination of the statutory scheme clearly leads to the conclusion that the legislature intended to exclude the Charter (or a category of questions that would include the Charter, such as constitutional questions generally) from the scope of the questions of law to be addressed by the tribunal. Such an implication should generally arise from the statute itself, rather than from external considerations. To the extent that Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, is inconsistent with this approach, it should no longer be relied upon. http://tlaing.com/lawnotes/at-admin-2.pdf 19
Yes T has jurisdiction then the Ts decision on the Constitutional Q is subject to JR for correctness. STEP 2: Look to below Charter Argument Substantive Review to conduct analysis.
NO T does not have jurisdiction Then the T cannot hear Charter arguments, however can still hear admin argument, if any.
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CHARTER ARGUMENT Substantive Review Step 2: Has Charter right been infringed?
Slaight: The SCC has used the applied 3 frameworks to review decisions alleged to impair the Charter rights. The Orthodox approach is lent greater support when dealing with decisions under substantive review. If a substantive review and a charter violation is alleged, then:
When the focus of the review is the decision itself (that is substantive review) rather than the procedures leading to it, and a discrete Charter right is clearly at stake, the SCC is to review the decision using almost exclusively the analytical framework(Orthodox Approach) developed under the Charter to review legislation. Under this framework judges engage in a two step inquiry, determining: 1. 1st whether the impugned decision infringes a Charter right and 2. 2nd whether the infringement can be saved under s1 as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society. THE ORTHODOX APPROACH: This approach was solidified in Multani The SCC first considered the application of the Charter to an admin decision in Slaight. As a rule it appears the SCC under the orthodox approach, will engage in substantive admin law review when contending values are at stake only if the complainant fails to est a prima facie infringement of a discrete Charter right, in which case s1 never enters the picture. Yes: Prima facie infringement found NO: Prima facie infringement not found, then engage in a substantive law SOR analysis
Key charter provision that would apply is S7: o Everyone has the right to life, liberty, and security of the person and the right not be deprived thereof, except in accordance with the principles of fundamental justice. Liberty Interest and Security of the person will be treated differently, to see if S7 requirements are met.
Liberty Interest Doesnt just protect physical liberty, but liberty is also engaged when state compulsions or prohibitions affect important and fundamental life choices. S7 protects the individuals right to make inherently private choices. This right includes degree of personal autonomy wherein individuals may make inherently private choices, free from state interference (i.e where to get home). These are basic choices going to the core of what it means t enjoy individual dignity and independence Godbout
Security of the Person Security of the person has been held to protect both the physical and psychological integrity of the individual. Where psychological integrity of a person is at issue, secutorty of the person is restricted to serious state-imposed psychological stress. Morgentaler Two requirements need to be met, before S7 breach can be found based on security of the person.
1. Psychological harm must be state imposed, meaning that harm must result from actions of the state. Stress, anxiety, and stigma arise from any legal matter, we are concerned with that impairment which can be said to flow from the delay in the human rights process. Blencoe There must be sufficient nexus between state caused action and prejudice to individual. Blencoe
2. Psychological prejudice must be serious. Mere interference with dignity, stigma, or reputation is insufficient Here two concepts are guaranteed: b. Nature of the interference, type of harm that was suffered
a. Serious stress to the individual
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YES The rights been breached, if so is it in accordance with the principles justice?
NO The rights have not been breached, the decision will stand
No is not in accordance of FJ, then:
Yes, then the decision will stand
STEP 2
If S7 is found to be breached based on either Liberty interest, or security of the person. Must ask if the alleged deprivation was in accordance with the principles of fundamental justice ( or if the violation a reasonable limit under S1? ) 1. 2. Here the government must prove this, on a BoP. In doing this, ask Oakes Test: The reasonable limit is prescribed by law? Usually yes, move on. Justified/Demonstrably justified in a free/demo society? i. Valid Objective: Purpose is related to concerns which are pressing and substantial, and if so then ii. Means used to achieve objective are not disproportionate to the purpose/objective, in doing so will assess; 1. Rational connection: here youre looking for if means youve chosen are rationally connected to objective. 2. Minimal impairment: looking for the least intrusive way to violate charter right. 3. Proportionality: Balance between bad affects vs the benefits. Balance between both competing interests of society and the individual AND balance between the benefits of the legislation and the harm caused by it.
MIXED LAW APPROACH Traditionally the SCC of applies the Orthodox approach, however more recent cases, such as Baker, Trinity Western, and Chamberlain, courts have been giving credence to the Mixed law approach. Under this approach, judges first judges: 1. First review the legality of a decision under the principles of admin law, including inquiry into whether the decision is ultra vires a grant of discretionary based on an unreasonable interpretation of a stat provision. Determine this using SOR analysis. 2. If and only if the decision is lawful under admin law it is then tested w/in the two step Charter framework. You look to above to see if S7 has been infringed, then S1 In a number of important cases the SCC has decline to use the Charter where it was at least possible to do so. For example in Trinity Western and Chaimberlain were decided w/out resort to the Charter. It is possible h/w that issues of standing led the majority in these cases to opt for review under admin law rather than Charter. As in Baker, the crts in Trinity Western and Chamberlain may be read as supporting a mixed approach that permits review on admin law grounds when conti rights are at stake, but that does not foreclose the possibility of review under the Charter if the decision survives preliminary scrutiny at CL.
ADMIN LAW APPROACH The most principled defence of the admin law approach is found in Multani. They departed from the Majority mainly on the grounds that review of admin decisions under s1 is impermissible b/c it is inconsistent w/ the rights-limiting portion of the French text.
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CHARTER ARGUMENT Procedural Fairness

As we have seen in Singh, Blencoe, Baker, Trinity Western, and Chamberlain judges will sometimes say that resort to the Charter is unwarranted when admin law can resolve procedural issues. You apply mixed law approach above.
What does the Charter require in terms of PF? S.7 of the Charter says that everyone has the right to life, liberty and the security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. To access procedural safeguards in s7, you must first cross the threshold of est that your life, liberty or security of person interest are impaired by the relevant decision. If you cannot est that the impugned decision touches a s7 interest, PF may still be due, but as a matter of CL rather than as a consequence of s7 and the PFJ. If s7 interest is engaged, PF comes into play by means of the PFJ, and leg must conform to them in order to be lawful.
Oral Hearing and the Scope of s7 Singh While Singh did not have a constitutional right to remain in CDN per se he did have a constitutional right to have his claim determined in accordance w/ the principles of FJ. And where credibility is at stake, as it almost always is in refugee cases, she found it difficult to conceive of a situation in which the claimant wld not be entitled to prior discovery of the Ministers case and an oral hearing. Singh remains valid of how review under Charter can overcome clear legislation, usually an insurmountable obstacle to relief at CL. Singh is also a foundational case for its recognition that s7 applied to non citizens and for its impact on CDNs statutory and institutional framework regarding refugee claimants. The Charter can take a complainant across the normally insuperable threshold of a clear statutory bar to certain procedures, but once the threshold is crossed it is still the CL that determines the content that the procedure must have to pass constitutional muster. INCORPORATION OF THE CL FRAMEWORK UNDER S7 Remember Baker and the 5 factors for determining PF (ABOVE) well in Suresh arguably BAKER framework has been extended under s7 to est the specific requirements of the duty to give reasons, a duty considered here as a principle of FJ. In Suresh the crt held that barring extraordinary circumstances, deportation to torture will generally violate the PFJ protected by s7, but ultimately the case was decided in Sureshs favour on the basis that the Minister had breached the s7 PFJ by failing to provide Suresh w/ adequate procedural safeguards and reasons for the decision. W/out the guidance of statute the crt turned to Baker framework to assess the adequacy of the procedure afforded to Suresh. Insofar as procedural rights are concerned, the CL doctrine in Baker properly recognizes the ingredients of FJ. The Duty to Disclose and the Right to Reply Weighing the 5 Baker factors, the crt concluded that Suresh did not have a right to an oral hearing, but he did have the right to disclosure of the materials on which the Minister wld base her decision, incl the memo from the IO who initially reviewed Sureshs case. Suresh also had a right to reply to the claims set out in the memo, incl claims relevant to the threats he posed to CDN and the risks of torture he wld face if deported. In Pritchard the crt held that the CL doctrine of solicitor-client privilege barred a complainant before the ON HR Commission from obtaining disclosure of a legal opinion drafted by the commissions inhouse counsel. In principle, an ordinary statute can oust privilege b/c privilege is a doctrine of the CL. It seems to follow that a duty to disclose found to inhere in the PFJ cld also reduce the effect of privilege. H/w the crt in Pritchard found that meeting the requirements of PF does not require the disclosure of privileged legal opinion. To pierce privilege you wld have to distinguish PF at CL (the context in Pritchard) from PF under s7. The Duty to Give Reasons Another area of PF influenced by Suresh is the duty to give reasons. Baker est that the DMs have a duty to give reasons whenever important interests are at stake. H/w in Baker the notes of a junior officer were deemed to satisfy the reasons requirement even though this officer did not make the final decision, and even though the notes were so riddled w/ stereotypes and prejudice that the crt found them to give rise t RAOB. H/w b/c the duty to give reasons is part of the duty of PF, crt wil usually review it on a standard of correctness. Undue Delay A further element of PF concerns the timeliness w. which admin proceedings are concluded. In Blencoe SCC acknowledged the possibility that an undue delay in the resolution of a HR complaint cld infringe the security interest protected under s7. It is possible that an inordinate and undue delay cld result in stigmatization and an impairment of the psychological integrity of the alleged wrongdoer, but the threshold to cross is set very high.
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EX PARTE, in CAMERA HEARINGS -Charkaoui In the wake of Sept 11, 2001 CDN enacted legislation to give police and security services added pwrs to investigate and prosecute terrorism. CDN already had comprehensive leg in place w/in it IRPA. Part of the IRPA envisioned JR of the security certificates that auth detention, but part of the review is concluded behind closed doors if EV cannot be disclosed for reasons of national security. This scheme gave rise to Charkaoui. Under the IRPA the detention and security certs are subject to review by the federal crt. During the review process ex parte and incamera hearings are held at the request of the Crown if the judge believes that disclosure of some or all of the EV on which the cert is based cld undermine national security. The judge provides the named individual with a summary of the EV but not its sources or any other details that might compromise national security. In Charkaoui SCC found that these proceedings doubly engaged s7 b/c persons subject to security certs faced detention pending deportation (liberty interest) and b/c the persons removal may be to a place where his life or freedom wld be threatened (security interest). The crt held that the review procedure violated the PJF b/c it denied the named person a fair hearing. A fair hearing the crt said requires a judge to decide the case on the basis of all the relevant facts and law. In an adversarial system judges do not have the pwr to investigate and gather EV. To remedy the procedural shortcomings of the statutory scheme in Charkaoui the crt suggested an amicus curiae ( an independent, security cleared lawyer) cld be appointed to represent the named person during in camera proceedings. The failure to incorporate such a measure led the crt to find s7 was violated and was not saved under s1. Refugee advocates herald Charkaoui as a major victory notwithstanding the crt left open what has become known as the Suresh exception, the finding that exceptional circumstances may entitle CDN to deport a person to torture. Charkaoui is another in a line of cases going back to Singh in which s7 has provided procedural safeguards to non citizens who historically were vulnerable to unstructured discretionary authority subject only to limited review.
ADMINISTRATIVE STATE AND RULE OF LAW

DMs pwr come from legislature pwr delegated to DM by legislature. So admin about govt action, specifically delegated govt action where decisions are made not in and by legislature itself. Admin can have relevance outside govt delegated decision-making where private bodies have defacto assumed govt stance- ie. Amateur sport associations.
Boards & Tribunals Boards are est. by leg. To attain a public policy goal. Leg. may prefer DM-ing by tribunal over crt b/c of expertise the tribunal has. Also B&T may have multiple functions in addition to adjudicative or DM-ing, they may be required to engage in policy-making which crt eschew. May also be required to issue licences, conduct investigations etc. ADMIN v CONSTI Major diif b/w admin & consti is unlike a charter challenge, admin case cannot provide an applicant with opportunity to overturn leg. Resorting to admin you are trying to ensure that govt pwr is used in an accountable way. Charter & Consti challenges are about overturning & reviewing parliamentary DM-ing, whereas admin is about reviewing & ensuring more generic fairness in govt. DM-ing. Admin much wider reach than Charter which only applies to govt DM-ing. Ie) Charter doesnt apply to Uni, hospitals or Crown Corps, admin sometimes does.
The Administrative State

Policy concerns of administrative law 1) Controlling state action (stop abuses, proper scope, duties) 2) Accountability Ensure there is more accountability in executive and administrative branches of govt 3) Ensure branch of govt performs duties assigned Similarities with Constitutional Law: Fundamental constitutional principles are used in Administrative Law Rule of law Legislative supremacy s.96 of Constitution Superior courts (inherent jurisdiction) Authority to review exercises of statutory power s.7 of the Charter Accordance with principles of FJ to take away life, liberty, and security of person Scope of Administrative Law (Limits) Private corporations (other than universities) incorporated under statute Administrative law does not apply State action covered by contract or torts Administrative law does not apply Domestic tribunal Procedures are extended to these bodies (McInnes) Applies as a factor for lower PF content. Tribunals that have been created by private group (like sporting associations No statute involved)
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Institutions of Administrative Law (The Decision Makers) Individuals, bodies, agencies exercising powers under statutes Delegated decision-making authority: 1) Legislatures All public programs originate with statute, supervision of the delegation of power 2) Public inquiries 3) Ministers Delegated power to exercise discretionary powers 4) Municipalities Provide the legislative framework for the public programs administered; delegated statutory power 5) CRN corporations Instruments for delivering public policy programs 6) Private bodies Example: Associations that govern sports (regulatory functions), professional associations 7) Independent administrative agencies Non-homogenous group of institutions (tribunals, commissions, boards) Independent Administrative Agencies (Or Simply Agencies) Common features: 1) Independence from govt Absence of direct control by executive 2) Usually engage in some sort of hearing process 3) Often individualized decision making Apply statutory scheme to individuals 4) Specialized Differences between agencies: 1) Range of decisions/structure 2) Range in stage of process (recommendations, final decisions, appeals) 3) Seriousness of the decision (deportation vs. granting license) 4) Composition of the agency Rationale for agencies as opposed to civil servants: 1) Legitimacy to decision making (takes away partisan politics) 2) Better decisions (expertise) 3) Expediency, convenience Rationale for agencies as opposed to courts: 1) Policy matters (not appropriate for courts) 2) Volume of decisions to be made (think worker compensations) 3) Procedural and efficiency concerns (lawyers, legal costs) 4) Expertise and specialization General legal expertise is not enough 5) Adversarial model may not fit the scheme of the agency 6) Broader public participation (costs, etc) Judicial Mechanisms for Control of Administrative Action 1) Appeals Must be a statutory provision. Distinction b/w external appeal and JR. Unless statute specifically allows for appeals there will be no appeals allowed. 2) Judicial review jurisdiction of the courts When statute lacks appeal provision Constitutionally protected as part of inherent powers of superior courts under s.96 of the Constitution Act Grounds of Judicial Review 1) Procedural Fairness a. Breach of procedural fairness obligations b. Rule against Bias c. Degree of independence 2) Substantive Review a. No legal validity or factual validity b. Unreasonableness of administrative decision, abuse of powers Issue: How much deference to show
Rule of Law and Administrative Law

Two fundamental concepts: 1) Govt must act only with lawful authority (Properly authorized) Discretion delegated must be limited by the four corners of the statute 2) Govt is subject to ordinary law administered by ordinary courts Possible criticisms: Increased litigation, who can afford judicial review will get it
Dunsmuir's words on Rule of Law & Judicial Review Role of Courts: courts undertaking judicial review, must 1) be sensitive to the need to uphold the rule of law; 2) avoid undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by
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Parliament and legislatures. Function of Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. How DM's must exercise their powers: A decision maker must not exercise authority not specifically assigned to him or her. By acting in the absence of legal authority, the decision maker transgresses the principle of the rule of law. Thus, when a reviewing court considers the scope of a decision-making power or the jurisdiction conferred by a statute, the standard of review analysis strives to determine what authority was intended to be given to the body in relation to the subject matter. This is done within the context of the courts constitutional duty to ensure that public authorities do not overreach their lawful powers: Crevier v. Attorney General of Quebec, [1981] Rule of Law maintained: because the courts have the last word on jurisdiction, and legislative supremacy is assured because determining the applicable standard of review is accomplished by establishing legislative intent.
Functionalist Critique of Rule of Law Modern regulatory state Central concern is effective functioning Courts should be given very limited role Lack of institutional competence Specific Concerns: 1) Court bias Desire to protect their own jurisdiction from State 2) Court system is not the best system for the administrative agency (costs, efficiency) 3) Failure of courts to infuse policy into statutory interpretation Possible criticisms: Accountability, procedural openness of administrative agencies Constitutional Basis of Judicial Review s.96-101 of Constitution Act Interpreted to guarantee JR power over administrative action on limited grounds (Crevier) Privative clause - Do not operate to limit judicial review Core power must be retained Re Residential Tenancies Act (SCC 1981) Background to Crevier: Leading case on the impact of s.96 of the Constitution Act on the CREATION of provincial administrative tribunals. **Cannot give adjudicative powers that belong to a s.96 court** Three step test to determine whether AT acting like s96 crt: 1) Historical inquiry Does power conform with power historically and exclusively held by the courts (at confederation) 2) If yes, is the impugned power is judicial Three factors: a. Involved in private disputes b. Adjudicated through application of a recognized body of rules c. Adjudicated in fair and impartial process 3) If yes Look at the power in the context of its overall institutional setting a. Adjudicative functions may be incidental or ancillary to administrative functions Crevier (SCC 1981) (leading case on AT masquerading as s96 crts): Facts: Privative clause Held: Rule of Law Courts are ultimate arbiters in regards to law Read down the privative clause No longer a complete shelter Outcome: Court always able to intervene on issues of jurisdiction Can manipulate the concept of jurisdiction Not all errors of law are jurisdictional errors What has been determined as jurisdictional errors: o Breaches of procedural fairness o Certain kinds of errors of law o Finding of fact for which there is no evidence Crevier is a landmark case for its finding that provincially constituted statutory tribunals cannot constitutionally be immunized from review of decisions on matters of jurisdiction by the superior crts. The trend in case law is that implicit in ss96-100 Constitution Act there is a constitutionally guaranteed right to seek judicial review of administrative action on the grounds of jurisdictional error or illegality. RULE OF LAW IN THEORY The rule of law can be characterized by 3 interrelated features: 1) a jurisprudential principle of legality; 2) an activity or practice of law making among and w/in an institutional arrangement of govt; and 3) a distinctive political morality. Together these 3 features affirm the rule of law as an overarching rship among legal subjects & the state, seeking to prevent the arbitrary use of pwr and encouraging appropriate forms of responsiveness among govt institutions & b/w these institutions & affected individuals. THE PURPOSE OF THE RULE OF LAW: Non-arbitrary rule of men Fundamentally RofL means that govt action must always be sourced in law and therefore bound by law in order to be considered both valid & legitimate. Arbitrariness can also suggest that DM possesses unconstrained discretionary pwr arbitrariness can be associated w/a unilateral mode of DM-ing. If a branch of govt steps outside its allotted constitutional role or function, the action or decision will be considered arbitrary in the sense that it is ultra vires.
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For more on attributes of RofL see page 80 of text
THE SCC on RofLs SIGNIFICANCE Roncarelli illustrates one of the primary functions of the RofL: the control of the executive arbitrariness. For detail on this case see page 88 The legal wrong against the RofL here was the violation of the legal principle of validity, which affirms that every official act must be justified by law or be found ultra vires. The decision here was not valid b/c the pwr to cancel licences was not given to either the premier or the AG. Public DMs must not act outside their auth & must be seen not to do so either. Admin law est. the legal parameters of pwr that exist by virtue of stats or b/c of royal prerogative. Judicial scrutiny focuses on limits on auth given to DMs by statute. On the substantive account, such auth is bounded by purpose & terms of stat, by reg., & guidelines, by consti & by both written & unwritten legal principles. Formally valid exercise of discretion can offend the RofL & can subsequently be determined to be legal wrong as an abuse of pwr. Roncarelli still stands as a paradigmatic example of the deeper principled & purposive approach to understanding how RofL animated admin law. A FOUNDATIONAL PRINCIPLE but an UNWRITTEN one The deepest & broadest reflection on the unwritten principle of RofL in CDN appears in 2 reference cases: Manitoba Language Rights & the Succession Reference. In Manitoba Language Rights SCC described thr RofL as a higly textured expression conveying a sense of orderliness, of subjection to known legal rules of executive accountability to legal auth. In that case the crt invoked the RofL to conclude that Manitoba govts repeated failure to respect the mandatory constitutional requirements of bilingualism exhibited a failure to comply with the manner and form of the leg enactment & therefore rendered the leg product invalid. By failing to adhere to the provs constitutional document, Manitoba had acted w/out legal auth, had acted arbitrarily, and had allowed its officials to act outside the law. The New Minimalist Rule of Law RofL embraces at least 4 principles: 1) it is supreme over private individuals as well as over govt officials who are required to exercise their auth non-arbitrarily & according to law; 2) it requires the creation & maintenance of a positive order of laws; 3) it requires the rship b/w state & the individual to be regulated by law; and 4) it is linked to the principle of judicial independence. RofL does not possess the ability to strike down legislation based on its content: Imperial Tobacco RofL does not require that leg be prospective or general. It also does not prohibit the conferral of special privileges on the govt, except where nec. for effective governance: Imperial Tobacco The RofL & post Charter Admin law: Deference as Respect Crts provide an essential accountability function by policing the exercise of delegated discretionary pwrs to ensure that they are confined to terms & purposes specific by the auth stat. Crt are conscious of the separation of pwrs and given their lack of expertise in determining the merits of certain policy making exercises, are themselves under the RofL constraints to respect leg & executive branches. Crt now aspire to a kind of respectful deference.
Tools of Administrative State and Regulation Mix

Tools of the ADMIN State A chief method used when leg. wanted to intervene in any given area was to confer pwr to act on Cabinet, an AT, a govt department or official or some other institution: these are known as admin actors. The core idea was that leg. wanted to regulate some area but wished someone else, an admin actor, to carry out the regs for reasons of expertise, expediency, access, independence from political process etc. Discretion: is crucial to the work of admin actors. It equips them w/ flexibility to configure the reg. program to what can be rapidly changing circumstances. Also gen. it is impossible for leg. to specify w/ any precision the circumstances in which various tools ought to be employed. Assessing Tools & Admin State Five Criteria: 1) Effectiveness; 2) Efficiency; 3) Equity; 4) Manageability; and 5) Legitimacy & Political Feasibility.
Remedies http://tlaing.com/lawnotes/at-admin-2.pdf 27
STEP 1: Remedial Options at the Tribunal Stage Administrative tribunals are as varied so it is unwise to generalize about the remedial powers available to them. However, 2 general comments can safely be made: o First, b/c T does not have general jurisdiction that a crt does, the pwr to impose a particular remedy must be provided for in the tribunals enabling statute; o Second, most Ts composition structure, and mandates are different from crts, and their approach to remedies reflects those differences. A) Statutory Authority As creatures of statute, T cannot make orders that affect individuals rights or obligations w/out authority from its enabling statute. Therefore, 1st step in determining Ts remedial options is to look at the statute itself. If a T makes orders outside scope of its enabling statute, it exceeds its jurisdiction and those order will be void. Orders for payment of $, such as compensation or damages, fines, fees and levies and costs gen. only be ordered by Ts that have the express stat. auth. to do so. Ts lack the equitable jurisdiction to order interim injunctions, although they may be given stat. auth. to seek an injunction in crt to enforce a statute. STEP 2: Enforcing Orders Against Parties After T makes a decision & imposes an order, assuming no one challenges that decision, another set of Admin law remedies become avail: the enforcement pwrs. A) T seeks to enforce its Order Rarely, a T may enforce its own order. Any enforcement pwrs must be granted by stat. & delegation of enforcement pwrs must pass consti scrutiny. Ie) a provincially created T cannot have crim (thus Fed) enforcement pwrs. More commonly T must make an application in crt to enforce any order it makes. Once T has converted its order into a crt order through one of the mechanism above, the order can be enforced in same manner as crt judgement. Ie) contempt proceedings are avail. if a P fails to abide by Ts order. B) Party seeks to Enforce Ts Order P to admin action may bring action in crt against another P to enforce Ts order. Note: Crts more likely to grant private application to enforce Ts order where the crt recognizes the Ts order as similar to the kind of order a law crt might make. H/w the private applicant will first have to convince the crt that it shld intervene notwithstanding the potential absence of a stat. provision empowering it to do so. C) Criminal Prosecution Many statutes provide for quasi-criminal prosecution of persons who disobey Ts orders. In the absence of other provisions, it is a crim offence to disobey a lawful order of federal or provincial T: s127 CCC. CCC provision is avail. where no other penalty is expressly provided by law.
Challenging Admin Action

P to Admin action may also decide to challenge that admin action directly. JR is only 1 method of challenging admin actions. JR applications, like litigation can be expensive and drawn-out.
A) Internal Tribunal Mechanisms All Ts can fix certain things, such as clerical errors or factual arrors due to mistake or dishonesty, w/out express stat. auth. This is sometimes called the slip rule. Ts can also change their minds until the time a final decision is made. Thus what constitutes a final decision becomes important. Some Ts are part of a multi-tiered admin agency. Enabling stats may provide for appeals internal to the agency. Note: where the statute does not provide for an appeal to the crts, Ps only entry to the crts is by means of JR. H/w where stat. has appeals, wld gen. exhaust those ave. before JR. B) External Non Court Mechanisms P considering challenging admin action shld not overlook non-legal ave. ie) Ombudsman see below Ombudsman: Each province has an Ombudsman. While there is no overarching Fed Omb. some Fed dept. & subject areas have their own specialized omb. Gen. the mandate of an omb. is to provide a forum for citizens to bring their complaints re: the wa that govt dept and agencies have dealt w/them. There is no charge to make a complaint to Omb. & Omb. have discretion as to whether or not they will investigate a complaint. Most leg. defines omb jurisdiction as being over matters of administration and crts have tended to define admin expansively as involving generic admin processes, not simply as the antonym to judicial processes. Most omb. stats. provide that an omb. is not auth. to investigate a Ts decision until after any right of appeal or review on the merits has been exercised or until after the time limit for doing so has expired. C) Using the Courts Statutory Appeals Note: crts may be reluctant to embrace novel, non-crt-like, yet potentially effective remedies devised by specialized Ts.
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There are 2 main ways by which a party to a T action can access the crts to challenge that action: appeal or JR o appeal mechanism either to internal admin appellate bodies or to crts is the norm. o JR: is the exception. Sig. it is also discretionary. This means that even tho crts struggle sometimes with knotty issues in taking appeals from admin Ts, relative to judicial review it is easier to predict the avail. and likely outcome of an appeal. Is an appeal available? o Look On page 1
D) Using the Courts: Judicial Review The basic nature of JR is diff. from stat or internal appeals, b/c as its root JR is about the inherent jurisdiction of crts to oversee and check admin action in the interest of the rule of law. Unlike stat. appeal, which are stat created, JR is the review of the executive action beyond what the executive itself provided for. Thus only on JR will crts investigate a Ts procedural fairness or alleged bias of its members. JR is fundamentally discretionary in a way that appeals are not: a crt may refuse to grant a remedy: Lafontaine Domtar: in deciding not to intervene to resolve a conflict in legal interpretation b/w 2 Ts construing the same stat. language, the SCC stated: the advisability of judicial intervention in the event of conflicting decisions among ATs, even when serious & unquestionable, cannot, in these circumstances be determined solely by the triumph of the rule of law. Is JR Constitutionally Protected? Given the above so far, a leg, in theory cld revise and refine a PC in order to better effectuate the ouster of the crts. H/W a few yrs after CUPE the SCC obviated the possibility of completely insulating prov admin bodies from JR. Crevier: In Crevier the constitutionality of a PC in a QB stat was challenged on the basis that confiding final and unreviewable DMing auth to an AT wld violate s96 of the Constitution Act by depriving s96 judges of a quintessential judicial function. Crevier constitutionalized JR for jurisdictional Qs, thereby placing the matter beyond the reach of leg. amendment. In Pasienchyk is was said that since as a matter of conitutional law, a leg cannot however clearly is expresses itself protect and AT from review on matters of jurisdiction, it also cannot be left to decide freely which matters are jurisdictional and which come w/in the Ts exclusive jurisdiction.
USE AND MISUSE OF DISCRETION

Discretion: discretion means an express legal power to choose a course of action from a range of permissible options, including the option of inaction. Abuse of Discretion as a Ground of Judicial Review Steps: 1. First, and most obvious, is the statutory language in which the discretion is granted. Is it couched in objective or subjective terms? Is it related to a specific purpose or is it granted for more general purposes? 2. Second is the nature of the interest affected by the discretionary power. Is it one to which our legal system normally gives a high degree of protection? How seriously is it affected by the decision? 3. Third is the character of the decision. Are there effective alternative checks, such as political accountability, that will prevent the abuse of discretion? 4. Fourth is the character of the decision maker. Expertise? A) Unauthorized Object or Purpose, Improper Considerations DMs must exercise discretion in conformity w/ the purpose authorized by the delegated statute. Crts must identify the object authorized by the statute and then determine whether that object or purpose has been followed or not. Discretion cannot be exercised on the basis or in light of improper considerations. The Q whether a consideration is proper or not is usually answered with reference to the object of the statute. These grounds of review are most frequently used. B) Bad Faith As we saw in Roncarelli discretion necessarily implies good faith in discharging public duties; there is always a perspective w/in which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. ie) in Landerville bad faith was found when the city was found to use its pwr to expropriate land, not for legitimate purpose but to prevent a resident from operating his quarry. C) Acting Under Dictation or Influence Crts presume that when Parliament chooses to delegate discretion to a particular DM, only the DM can actually exercise it. Therefore any indication that one acted under the dictation or influence of another person suggests that the pwr was not in fact exercised by the authority that was identified by Parliament. In Roncarelli the DM was found to have exercise his pwr under the dictation of Duplessis & this was not permitted as the pwr was delegated to the Commission only.
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D) Wrongful Delegation of Powers Crts assume that discretion is bestowed on executive DMs on the basis of their expertise or particular situation in the administrative machinery, so that an administrative auth must exercise discretion itself w/out delegating that responsibility to another. ie) In Vic Restaurant the city of Montreal adopted a bylaw that made delivery of permits conditional on the auth of chief of police. This was found to be an illegal sub-delegation of pwr to make a decision, b/c the bylaw did not provide precise norms on which the chief of police cld rely, de facto conferring on him the pwr to make those norms. E) Fettering of Discretion DMs who decide in advance how they will exercise their discretion, before being presented with the particulars of a situation, transform the nature of the pwr that was delegated to them. This kind of situation is likely to arise in context where directives or guidelines are used to structure the exercise of discretion. If directives or guidelines are applied in a way that prevents the DM from making use of his margin of manoeuver in each case, he then transforms the discretionary pwr into a non-discretionary one. The legality of using those directives thus required DMs o actually exercise discretion and to depart from the guidelines when cases demand it. F) Unreasonableness Definition of unreasonable by the House of Lords: a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the Q cld have arrived at it. The conditions required to make a case of unreasonable exercise of discretion were therefore very demanding and rarely est. before the crts. The application of these various grounds of review presented important difficulties and in many cases the distinction b/w the substance of a discretionary decision and its surrounding legal limits cld hardly be neatly distinguished. The law/discretion dichotomy persisted even w/ the emergence of the politics of deference introduced in CUPE. The hands-off approach to admin interpretation of non-judicial Qs was justified by the idea that law interpretation was not the monopoly of the crts & in many cases expertise of Admin agencies were just as qualified as crts and some even more so. The heads of review available limited the potential for intrusion into the substance of those decisions & maintained the judiciary in a position that was compatible w/ a formal view of the separation of pwrs. In cases of discretion, unreasonableness was understood in the Wednesbury sense (something so absurd that no sensible person cld ever dream that it lay w/in the pwr of the authority) and did not seem to require any serious involvement with the merits of the decision b/c the defect it punished was to clearly appear on its face. By contrast, in the context of review of executive interpretations of law, CUPE defined a PU decision as one that cld not be rationally supported by the relevant leg. The law/discretion dichotomy seemed entrenched in law of JR. But Nicholson which was handed down the same yr as CUPE paved the way for the restructuring of JR that wld occur 20 yrs later. It was noted in Nicholson that it is very difficult to make a distinction b/w legal decisions & discretionary ones. It became difficult to maintain that distinction as a justification for exercising different forms of control for law & discretion. Discretion and the Charter: Unreasonableness Revisited General Rule In the absence of express words or necessary implication, it was presumed that the legislature did not intend a discretion to be exercised so as to curtail basic liberties. NOTE: However, the mere fact that a statutory discretionary has the potential to be exercised in a way that infringes Charter rights and freedoms does not give rise automatically to invalidation. In such cases, the attack will have to be on the individual exercise of discretion, not the authorizing provision Very limited use of the Charter to strike down legislation as void for vagueness under Slaight Communications Inc. v. Davidson If decision maker is given a wide degree of discretion under the statute and arguably he has a choice of how to interpret how far he can go, then he must exercise his discretion within the bounds of the Charter Court indicated it is not re-weighing factors that the discretionary decision maker has taken into accountif discretionary decision maker has applied appropriate factors, the court will not overturn it even if it would have come to a different decision on those factors itself LAW of DISCRETION: BAKER AND BEYOND Baker marked the turning point in the law of discretion. Crt said that review of discretion cld follow the P&F approach b/c the factors it put forward to determine the applicable standard of review in any case cld accommodate the specificity of discretionary pwrs. The reasons that supported the decision showed that the officer failed to give serious weight & consideration to the interests of the children. This demonstrated that it was inconsistent w/ the values underlying the grant of power & therefore unreasonable. By applying the P&F approach to the control of discretion Baker marked the end of the law/discretion dichotomy in the domain of substantive JR. The SCC recognized that he substance of discretionary decisions cld be made subject to a control based on reasonableness.
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If it is not possible to clearly differentiate discretion from law, the differentiation cannot be the basis for the determination of the approach to review. Baker required reasons be given for decisions having important consequences for the individuals concerned. The duty to give reasons does not depend on the kind of pwr that is exercised by the executive, but rather on the consideration that the dignity of the individual requires that she be told why a decision that is critical to her future was made.
BAKERs AFTERMATH Baker suggests that those heads of review (ABOVE) still have a roll to play: discretion must be exercised in a manner that is w/in a reasonable interpretation of the margin of manoeuvre contemplated by the legislature in accordance w/ RofL. The previous grounds for review which rely in large part on Qs of fact are not unaffected by the P&F approach. Grounds that more closely relate to an exercise of stat interpretation (such as unauth object or purpose, irrelevant considerations or reasonableness) might need to be approached in conformity w/the appropriate SOR at the close of a P&F analysis. Baker brought discretion under SOR. So now errors of law, fact, mixed fact & law and discretion are analyzed under the SOR. Effect of SURESH After Baker judicial and academic discussion was: when called upon to review the validity of any given exercise of discretion, can the reviewing court reweigh the considerations that were taken into account by the MD? Suresh clearly said no! The auth required to weigh the relevant considerations in Baker was the Minister, not the reviewing crt. Baker does not auth crts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process, but draws on an est. line of cases concerning the failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors. Reviewing crts must therefore limit themselves to ensuring that only relevant considerations have been taken into account; weighing is for the DM alone! Failure To Consider Relevant Factors A more limited and plausible version is that, while an agency may lawfully consider a large number of factors in the exercise of a discretionary power (permissive relevant considerations), it is required to consider only some of them (mandatory relevant considerations). o An exercise of discretion will therefore be ultra vires only if the agency has overlooked a factor that its enabling statute expressly, or more usually, impliedly, obliged it to consider. Multiple Purposes and Considerations Prevailing view appears to be that the court will only hold such decisions to be ultra vires if the unlawful purpose or consideration played a dominant or material role in the exercise of discretion
Purpose and Proof When an agency exercises its discretion after receiving a report from a senior official or committee, the court may attribute to the agency any statement of purpose contained in that report
Rule Making / Delegation

Regs are binding on all those who are subject to them. The pattern of the legislature enacting broad legislation and delegating to the executive the pwr to fill in the details underlies much of the CDN reg structure. These detailed rules or guidelines govern much of our daily lives at home and work.
These rules and guidelines can be broken into 2 broad categories 1. Regs and rules and Regs an Rules are legally binding requirements and as such the pwr to make the must be expressly granted under statute. 2. soft law. Soft law on the other hand while also developed by the executive is not legally binding. The pwr to make soft law (such as guidelines about procedures) does not have to be expressly provided by statute. H/w soft law plays a very important role in how DMs make decisions, both procedurally and substantively. WHY DELEGATE? The primary reason for such delegation is expertise. Expertise is an important concept in admin law. Expertise is also central to the need to delegate responsibility for detailed requirements in the form of rules and law. Legislators never have complete information about the future, so legislation is therefore nec and unavoidable incomplete. B/c legislation can be difficult and time consuming to alter, the pwr to make requirements may be delegated in order to increase flexibility to allow the requirements to be changed as new information arises.
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While not legally binding soft law such as policies and guidelines can have significant impacts on peoples lives. For example in Baker, the Minister issued guidelines setting out the bases on which IO shld decide whether the individual deserved humanitarian and compassionate consideration. These guidelines were important to the Crt in deicding the limits on the discretion to be exercised under the Immigration Act. The legislators delegate the pwr to make rules and soft law in order to allow others to fill in the gaps in the legislation.
RISKS of DELEGATION Such delegation raises risks that those who are making the rules or soft law are not following the wishes or expectations of those who delegate the pwr. This risk arises b/c a principal-agent problem inherent in such delegations. This principal-agent problem has 2 dimensions. 1) the party making the rules or soft law (the agent) is not following the wishes of the legislature (the principal). 2) there is further underlying P-A concern b/c legislature or the party making the rules or soft law may not be respecting the wishes of the ultimate principal, the public. The principals lack of expertise, information, or time means that he or she had difficulty ensuring that the agent is actually actin gin his or her best interests in carrying out the task. This is the P-A problem. The problem also arises when the legislature delegates the pwr to make rules or soft law. Legislators delegate pwr b/c they lack the expertise time and information to make the decisions but, at the same time, they have difficulty monitoring how this pwr is exercised b/c they lack the expertise, time and information, which means that expertise, time and information represent both the reasons to delegate and the causes that hinder monitoring. There are 2 risks from delegating the pwr to make rules or soft law. 1) the Agent may follow its own views and values rather than the principals view and values in making the rules and soft law. 2) the agent may not be attempting to further the public interest, it may instead be seeking to further its own interest. Similarly, legislators may delegate in order to further their own interests, such as where broad legislation with delegated rule making pwr is used as a form of blame avoidance or credit attraction by legislators or Cabinet members. CONTROLLING THE RISKS A) Structural Approaches The ability of Cabinet to both set the scope of discretion and control the exercise of that discretion provides significant ability to the party in pwr to steer the details of the policy at the expense of other elected members of legislature. Legislatures may also attempt to indirectly control the exercise of direction through inter alia the choice of body that will exercise the discretion of the resources provided to that body. B) Legislative Review Instead of indirectly attempting to ensure that the pwr is delegated conforms to its views, the legislature cld directly control the discretion by reviewing the resulting rules or soft law. The legislature itself, or more likely a committee, cld examine the rules or soft law and decide whether to approve it or not. Although legislative committees may review rules and regulations there is generally no legislative oversight of soft law. C) Judicial Review of Substance The crts are an obvious candidate for control of rules and soft law. They are an independent 3rd party that can monitor or review the substance of the rules that are made. This may keep agents w/in the bounds of the pwr delegated and control the agents when they make mistakes, substitute their own views of the public good, or acts in its own self interest. One of the seminal cases in CDN is Thornes Hardware. In that case the Cabinet made an order in council under the National harbours Act extending the boundaries of the Port of St John. The applicant challenged the order on the basis that it was made in bad faith. It was argued that Cabinet extended the boundaries in order to increase the revenues and such a purpose was not w/in the scope of Cabinets prws under the Act. The SCC h/w held that while it was possible to strike down an order in council on jurisdictional or other compelling grounds, it wld take an egregious case to warrant such action. It refused to examine the EV the applicant provided of bad faith stating that the govts reasons for expanding the harbour are in the end unknown. The crt in the end took a strong position against examining the actions of Cabinet in making orders in council. Crts do review the substance of rules made by other agents under judicial review pwrs similar to the pwrs used to review other decisions of the executive. In Enbridge crt applied the SOR and found that the standard was correctness. Crts will review the substance of rules (incl regs) for whether (as in Enbridge) the regs is w/in the grant of pwr. They will also review rules for other reasons, incl whether regs violate the Charter. Crts may have been reluctant to review b/c the discretion is often in such broad terms that review is difficult. Crts have been more reluctant to review soft law. One exception to this reluctance to review soft law is a review of fettering. Fettering occurs where a guideline or policy, due to its language or practical effect is in effect mandatory or binding on a DM taking away the discretion that has been granted to him. Yet even if crts were willing to review rules or soft law substantively, is this something we shld want them to do? There are 3 reasons why not. 1. the process of JR tends at best to be random and at worst biased in favour of certain interest groups. JR can be very time consuming and expensive.
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2. 3.
2nd concern w/ substantive review is that even if the appropriate challenges come before the crts, the crts often do not have the expertise to review the rules. For example in Endridge how can a crt determine the appropriateness of the rules concerning the billing of consumers or even the appropriate interpretation of the purpose of the legislation? Even if crts have the expertise to review admin rules, this discussion of the crts role in reviewing admin rules has implicitly assumed that crts are attempting to determine the best possible interpretation of legislative pwr and the appropriateness of the challenged rule.
D) Process Requirements There is no CL requirement of PF where a decision is of legislative and general nature. B/c rules are typically general (that is, apply to many people) they tend to fall under this exception to PF. Legislative in this context does not nec mean by the legislature. In Inuit Tapirisat , IT challenged a rate increase for telephone services supplied by Bell CDN. IT sought JR, claiming it has been denied PF in its appeal b/c the CRTC had made submissions to which it did not have access. The SCC h/w found that Cabinet did not owe the IT PF in this case. It was found that making rats was legislative in the purest form b/c it affected many Bell customers. In the end it was found that there was no obligation on Cabinet to provide PF, such as notice, a hearing or reasons. -IT shows that for a decision to be legislative in nature the body making the decision does not have to be the legislature. The decision itself must have this legislative and general character. Although this legislative and general category is not self evident, it appears to exclude rules aimed at a single party. For example in Homex which involved a dispute b/w a developer and a municipality. After extended and butter negotiations, the municipality used its bylaws to designate the developers subdivision plan not to be a registered plan. It did so w/out notice to the developer. If the bylaws were valid the developer wld have to obtain permission from the municipality to see part of the development and before providing consent the municipality wld impose conditions such as installing services. The developer challenged the bylaw saying the municipality did not act fairly. It was held that the bylaw was not general in nature but aimed at resolving a dispute with one party. The municipality therefore owed a duty of fairness. As a result, the general approach of crts in CDN has not been to impose CL procedural requirements on the making of rules. THE ONGOING STRUGGLE Legislators take risks when they delegate the pwr to make rules to parties. They benefit from the expertise and time of the other party. They are able to expand the reach of their reg pwrs b/c they wld not have the time to make rules in all the areas. H/w they are giving a significant amount of pwr to parties that they cannot fully monitor b/c of the info and time cost of monitoring. This difficulty created the P-A problem. Govt continue to search for better ways of overcoming the P-A problem. Some suggestions incl developing an AAT. The struggle is to control the P-A problem while retaining the benefits that come with delegation.
ADMIN LAW AND NATIONAL SECURITY

Special Qualities of National Security Administrative Proceedings Notice and a right to be heard Notice and right to be heard are fundamental of CL PF and where triggered, equivalent fairness protections under CBR and Charter. Yet NS admin proceedings, both notice and right to be heard may be rudimentary. A Basement Floor? The crt has recognized a bare min of fairness that must be met in NS matters, at least where Charter interests are at stake. In Suresh the applicant faced the prospect of being deported to possible torture. SCC held that Suresh was protected by s7 Charter. This meant that he must be informed of the case to be met and that an opportunity provided to respond. The SCC in Charkaoui, a case involving legitimacy of the secretive security cert process under CDN immigration law said that procedures required to conform to the principles of FJ must reflect the exigencies of the security context. Yet they cannot be permitted to erode the essence of s7. The principles of FJ cannot be reduced to the point where they cease to provide the protection of due process that lies at the heard of s7 of the Charter. The protection may not be as complete as in a case where NS constraints do not operate, but to satisfy s7 meaningful and substantial protection there must be. In Suresh crt concluded that info provided to govt to inform Suresh of the case against him was legitimately subject to privilege or similar valid reasons for reduced disclosure, such as safeguarding public security documents. 1. Truncated Notice Some NS procedures anticipate no notice being given to affected individuals. Ie) the CCC has a provision where a groups may be listed as a terrorist group. While the listing may be challenged, the challenger has limited opportunity to know the case to be met. Also the opportunity is after the entity is already listed. 2. Truncated Right to be Heard In other circumstances, when an individual is given notice or at least an opportunity to challenge a decision, special constraints may be imposed on his right to be heard. There are several closed-door admin proceedings conducted in the absence of counsel for the non-govt party and the party themselves (ex-parte).
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These regimes allow a denial of an interested party full access to relevant info-usually intelligence from the security services marshaled by govt as EV in the proceedings. The result may be that the interested party does not know the case to be met, even in circumstances where important interests mat be at stake. In Charkaoui be careful to extrapolate too much from the right to heard. The crt did not signal that confidentiality & a truncated opportunity to be heard are per se impermissible. In this case the stat keys shortcoming was in the s1 analysis the govt has shown no reason why it had failed to adopt an alternative to the full ex-parte system. Also Charkaoui will be of little sig in admin processes that do not trigger s7- life, liberty and security of person.
Discretion and National Security Fewer than 1/3 of stat that invoke NS expressions define the concept. This failure to define produces stats replete w/ a concept whose preside content is extremely vague. Ambiguity in the understanding of NS confers substantial discretion on the executive branch to define NS as it wills. B/c NS exists in the eye of the beholder; there is ample room to employ NS justifications in manners that may prove impossible. The mosaic effect posits that the release of even innocuous info can jeopardize NS if that info can be pieced together w/ other data by a knowledgeable reader. The result is a mosaic of little pieces of benign info that cumulatively discloses matters of true NS sig. The mosaic effect has been accept by Crts and has guided decision on disclosure. B/c the doctrine applies to innocuous info, the future use of which can never be predicted, it could be deployed to stave off disclosure of virtually any piece of info. Deference as the Starting Point in National Security Matters In Suresh the crt applied the P&F approach and found that the Ministers decision would be overturned only in egregious circumstances. A PU decision was one made arbitrarily or in bad faith that cannot be supported on the EV or where the Minister failed to consider the appropriate factors. At least in NS matters PU is the default SOR where the exercise of ministerial discretion is challenged. In coming to its conclusion Suresh cited with approval Rehman as UK case which stated that the interest of NS cannot be used to justify any reason for wishing to deport an individual, there must be some possibility of risk or danger to the security or well-bring of the nation. The Application of Deference Suresh and Rehman underscore the difficult role of reviewing crts in the NS context: generalist crts are asked to second guess govt officials privy to arcane info and expertise on matters that might shake the state to its foundation. The temptation to err on side of caution is great. Suresh was followed by Charkaoui where fairness imperatives prevailed against security preoccupations. Also, where s7 is engaged there is a basement floor of procedural entitlement that must be met. (SEE ABOVE)
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Judicial Mechanisms for Control of Administrative Action

If PF obligations have been breached, then:

.continued next page

POST- Hearing Issues 5. Official Notice 6. Admissibility of Evidence 7. Cross Examination

POST- Hearing Issues

If LACK of Independence: Then the decision will be quashed.

If SUFFICIENT Independence Decision left standing

YES Justification Decision will stand

INSTITUTIONAL DECISIONS Consolidated Bathurst Delegation: The Legal Doctrine

DECIDING WITHOUT HEARING

Writing & Reviewing Reasons for Decision

CONSTITUTIONAL AND QUASI-CONSTITUTIONAL SOURCES OF PF AND STATUTORY AUTHORIZATION

When should you use constitutional or quasi-constitutional arguments?

Admin & Charter Step 1: AT Jurisdiction over the Charter

a. Serious stress to the individual

No is not in accordance of FJ, then:

Yes, then the decision will stand

CHARTER ARGUMENT Procedural Fairness

ADMINISTRATIVE STATE AND RULE OF LAW

The Administrative State

Rule of Law and Administrative Law

For more on attributes of RofL see page 80 of text

Tools of Administrative State and Regulation Mix

Challenging Admin Action

USE AND MISUSE OF DISCRETION

Rule Making / Delegation

ADMIN LAW AND NATIONAL SECURITY

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