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Prepared using Syllabus for Jan. 2012 Administrative Law Summary

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Generally a. Three things to figure out: where do I go, what do I complain about, what do I ask for- forum, ground, remedy i. Forum will typically be resolved by statute- the statute must create this statutory appeal possibility and set out the criteria by which an appeal can be brought ii. Grounds are usually procedural fairness (such as reasonable apprehension of bias) and substantive unfairness (something about the outcome of the decision that suggests the decision-making body acted inconsistently with the law that created it- interpreted their law in an unreasonable way, or making a decision in a capricious way, failing to take facts or evidence into account) iii. Remedy: in administrative law, under judicial review, you do not get a new outcome – on judicial review, the best you can get in that sense is a new hearing at the forum of first instance- historically the prerogative writs: 1. Certiorari: to quash or set aside a decision 2. Prohibition: to order a tribunal not to proceed 3. Mandamus: to order the performance of a public duty 4. Habeas corpus: to order the release of the unlawfully imprisoned Administrative Appeals v. Judicial Review a. Administrative Appeals (or ―statutory right of appeal‖) i. Reconsideration 1. Some enabling statutes specifically provide tribunals with the ability to reconsider and rehear decisions they have made -- usu where a particular tribunal has ongoing regulatory responsibility over a particular domain. 2. Absent express statutory authority, however, for policy reasons that favour finality of proceedings, a tribunal cannot reconsider or alter a final decision made within its jurisdiction. i. Appeal mechanisms – either to internal administrative appellate bodies or to courts – are the norm scope of a possible appeal is confined to what the statute expressly provides. 1. Is an appeal available as of right, or is leave required? If leave is required, who may grant it? (Reza) b. Judicial Review i. Judicial review is discretionary 1. Judicial review is about inherent jurix of courts to oversee and check administrative (that is, executive) action in the interest of the rule of law. a. Judicial review is the review of executive action beyond what the executive itself provided for. Thus, only on judicial review will courts investigate a tribunal's procedural fairness or the alleged bias of its members. ii. Is Judicial Review Available? 1. Only for public body- Judicial review is available to check executive action. Therefore, only public bodies can be subject to judicial review. a. A body or tribunal will be subject to public law, and therefore judicial review, if it is ―part of the machinery of government‖: Martineau v. Matsqui Institution (SC, 1980) b. McDonald v. Anishinabek Police Service et al. (2006, OSCJ, Div. Ct.)- Ct finds that the Police Chief's actions (and powers to hire and fire which were derived from contract and not from statute) are ―public enough‖ to permit judicial review-supervision of ―the machinery of government‖. . If the body is fulfilling a public law function, then the body in question is subject to judicial review. A body will be fulfilling a public law function if it is exercising public law functions or if the exercise of its functions has public law consequences. Pre-Dunsmuir c. Various factors can be used to distinguish domestic (private) tribunals from public

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bodies (McDonald): i. the source of the board's powers; ii. the functions and duties of the body; iii. whether government action has created the body, or whether, but for the body, the government would directly occupy the field; iv. the extent of the government's direct or indirect control over the body; v. whether the body has power over the public-at-large; vi. the nature of the body's members and how they are appointed; vii. how the board is funded; viii. the nature of the board's decisions (and whether it seriously affects individual rights and interests); ix. whether the body's constituting documents, or its procedures, indicate that a duty of fairness is owed; and x. the body's relationship to other statutory schemes or other parts of government 2. 3. 4. Standing – public interest standing if not party Deadlines – e.g. Fed Ct Act gives 30 days after decision Alternate remedies- he or she has exhausted all other adequate means of recourse for challenging the tribunal's actions. (exhaustion) a. Convenience of judicial review as opposed to alternate forms of relief also available b. An alternative form of appeal will not be inadequate based only on unproven allegations that an appellate tribunal will suffer from the same errors or biases as the original tribunal: Harelkin. c. Harelkin v. University of Regina (1979, SCC) i. A decision is made in the department of social work to kick him out of the program: the bad grades are likely defensible, but the reason of ―being neurotic‖ is likely not. The two main issues before the SCC are whether the claimant had a right to be heard by the committee of the university council, and whether the discretionary remedies should be refused because the claimant should have pursued his right of appeal to the university senate before resorting to prerogative writs. ii. Ct: committee had a statutory duty to hear the claimant, which duty was not complied with- bad procedure below. But applications for certiorari and mandamus should not have been allowed, as the claimant ought to have exercised better alternative remedy in his right of appeal to the senate committee. iii. Where an alternative remedy exists, in the case of want of jurisdiction, certiorari remains available but, in each case, the court in exercising its discretion must consider the convenience and adequacy of the alternative remedy d. Canada Trust v. Ontario HRC (1990)- Allows P to come directly to ct to complain abt trust which is only avail to Christians of Br. nationality, even though didn‘t exhaust HRC grounds. This isn‘t discrimination case- it‘s trust case – HRC doesn‘t have power to change trust so resort to ct necessary. Question of law- no facts in dispue, and mechanism under Trustee Act to come to ct. i. Bhadauria v Board of Governors (SC 1981)- The Ontario Human Rights Code foreclose any civil action based directly upon a breach thereof but is also excludes any common law action based on an invocation of the public policy expressed in the Code. The code itself has procedures for vindication of that public policy, procedures which the plaintiff respondent did not see fit to use.

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Other factors:

Exclusion for bodies or people appointed under law of a province iii. labour relations. provision that leave be obtained to seek judicial review of deportation order by fed. Provincial vs. holding that ct ―clearly had jurix to grant relief sought…the issue is whether the ct may decline to exercise its jurix…‖ . S. Ct holds lower ct properly exervised discretion b/c Parliament had created a comprehensive scheme of review of immigration matters and Fed Ct was an effective an appropriate forum. S. Federal Ct of Appeal denied Reza leave to apply to have deportation set aside. Has the power in its institutional setting changed its character sufficiently to negate broad conformity with superior. P entitled to avail himself of juridical advantage he would enjoy in Ontario ct. 4. statutory bodies. as opposed to an administrative or legislative power? (A judicial power is one where there is a private dispute between parties. Then Reza applied to Ontario Ct (provincial) for declaratory relief asserting that Immigration Act contrary to Charter. Supreme Court Act (1875). 2 of Act defines ―federal board.created Sup Ct b. Canada (SC 1994) i. but decision reversed by Ontario Ct Appeals. Historical inquiry – whether the impugned power broadly confers to a power exclusively exercised by a superior. d. commission or tribunal‖ expansively but does not reach all bodies that ower existence to federal statutes—fed ct has no inherent jurix. Allowance for provincial habeas review for detentions by fed statutory authorities b.if the court believes the tribunal's error did not affect its overall conclusion Unclean hands.3 a. i. Federal a. but here issue is not immigration case but const one and no reason to defer to expertise offed ct.Reza v. . county and district courts (s.) iii. b. district. sense that 10 superior cts adjudicating in judicial review proceedings involving fed authorities would yield conflicting results. Lower ct stayed Reza’s application. Federal Courts Act.and where the party making the application does not come before the court with clean hands. or county court at the time of Confederation ii. Reza made refugee claim under Immigration act. Concurrent jurix. which said cts may decline to entertain habeas when applicant is attempting to bypass a statutory scheme.92-14). 2-member panel decided didn‘t have credible basis for claim. E. and adjudicated in a manner consistent with fairness and impartiality. adjudicated through the application of a recognized body of rules. c. e. ii. i. ct. or county jurisdiction? 1. Delay and acquiescence 3. f. in absence of showing that avail review process is less advantageous than provincial habeus jurix.96 provides that the federal exec shall appoint justices of the country‘s superior. Federal Court Act – 1970 – assigned virtually exclusive review authority over affairs of fed. Is the impugned power a ―judicial‖ power.96).trial level federal ct of Canada ii. 1979): i. district.court-like adjudicative functions of labour relations bd was ancillary to a broader administrative and policy-making role as administrator Provincially constituted statutory tribunals cannot constitutionally be immunized from review of decisions for c. Then held that jurisprudence and logic would support that this ct leave the review of immigration matters with fed court. esp. S96 Courts a.depends on specific conferral in Fed Ct Act or in enabling legislation ii. Cts developed 3-pt test to determine whether or not admin tribunal is acting like S96 Ct (Re Residential Tenancies Act.where present circumstances make granting the remedy impossible harmless error.g. premature – interim judicial review fragments proceedings.but prelim ruling can be reviewed on showing of special circs that show review can‘t wait where the issues are moot impossibility . Provinces-establish these courts in their respective jurisdiction (s.

Enabling statute ii. 2. in part because the legislation authorized Cabinet to overturn a decision of the CRTC on its own motion.withdrew provision of mail b/c believed that mail was bein used for criminal purposes. General provincial procedural statutes v. Charter provides a constitutional backstop for procedural protection. Ex post . and thus the concern about interference in the political process is lessened. 3. Sometimes procedural requirements cannot be met without causing harm of some sort. Crevier v. 2. Subordinate legislation may or may not be covered by the legislative exemption 1. iv. 7 is found to have been infringed. especially where the law-making authority has been delegated to actors outside the political process altogether. 1: Charkaoui (2007) 2. ministerial guidelines in Baker iv. 1. however. The Court finds the Cabinet's power to be legislative in nature (―legislative action in its purest form‖). b. will typically afford the individual no procedural protection: Knight v. Common law presumption that the legislature intended procedural protection to apply i. 7 applies only in the context of deprivation of life. Quebec (1981) The trend in the case law is that. SCC): 1. 96-100. it is unlikely that legislation limiting or ousting the duty of fairness will be considered justified under s. Procedural Fairness 1. Subordinate legis (regs and rules) iii. for example.G. Final dispositions of a matter. Cabinet and ministerial decisions 1. R v. s.Professions Tribunal. Not legislative decisions or functions 1. which does not look legislative. v. Where s.g. Policies – e. The statute provided that the decisions of the tribunal were final. and security of the person. there is a constitutionally guaranteed right to seek judicial review of administrative action on the grounds of jurisdictional error or illegality. with exclusive appellate jurisdiction over the discipline committees of most statutory professional bodies in Quebec. but it will often be easy to characterize Cabinet and ministerial decisions as legislative. liberty.g. A. Political approval for such legislation is subsidiary in nature. independent tribunals.an appeal here. Relief sought is usu interim only c. has a more judicial character. subsequent hearing allowed. . as a purely ministerial decision. implicit in ss. Other sources i. Randolph (1966). Cts require clear statute to limit or oust procedural protection b. Policy decisions that are covered by the legislative exemption. of Quebec . but applies in a narrower range of circumstances than the common law. and only rarely will it apply to investigations or advisory processes that do not have any direct consequences ii. Substance is more important than form where the legislative exemption is concerned: Homex Realty. Inuit Tapirisat. Indian Head. Inuit Tapirisat of Canada (1980. Are not subject to the legislative exemption per se. -. Reference re: Canada Assistance Plan (1991) iii. on broad grounds of public policy.courts may defer compliance with the duty of fairness protections until after the relevant decision has been made. and as a result they will be exempted from the duty: e. though. Canada (Attorney General) v.emergencies a. SCC overturns. Sources a.4 jurisdictional questions. the legislation says that what Cabinet does on appeal it can also 3. so ordinary legislation could limit or even oust the application of the duty of fairness to the licensing scheme without infringing the Charter. i. Crevier v. Only decisions – not legislation i.

SCC): a. Two questions arise when judicial review proceedings are brought alleging a breach of the duty: i. Homex was not ―heard‖ by the village per se. the village passed a bylaw deeming the lots purchasing by the developer not to be a registered plan of subdivision.Nicholson cannot claims the procedural protections afforded to a constable with more than eighteen months' service-. Homex Realty and Development Co. How is the content of the duty determined? Nicholson v. to respond. . a. The Cabinet heard from Bell and the CRTC and took advice from ministerial officials.5 2. or even to acknowledge the receipt of a petition. to endow some with procedural protection while denying others any at all would work injustice when the results of statutory decisions raise the same serious consequences for those adversely affected. Duty to act fairly does not depend on doctrines of employment law. What is the threshold for the application of the duty of fairness? ii. but the petitioning group was essentially left out of the proceedings.Plainly. the Court finds that the village was not allowed to couch its actions in a form (legislation) designed to oust the application of the duty of fairness. 3. SCC considers whether the municipality owed Homex a duty of fairness. As a result. 3. Discretion of the Governor in Council to be complete. whether the duty was breached. do on its own initiative). Inuits wanted to condition rate on improving access to N. provided he observes the jurisdictional boundaries of the legislation.no fairness needed for employment decisions.governed by K Knight v. Indian Head School Division No. powers that must be exercised according to the rules 5. In these circumstances. SC held that a general duty of “procedural fairness” applies to administrative decisions .passage of this municipal bylaw was subject to the duty of fairness. vi. the motivation for the bylaw was the particular dispute between the developer and the village – was “not in substance legislative but rather quasi-judicial in character”. 4. and if so. whether orally or in writing. No need for Cabinet to give reasons for their decision. i. the developer could not sell individual lots without the village's permission. Before there was no halfway house between the observance of ―natural justice‖ for a constable who had served eighteen months as a holder of public office and the arbitrary removal of a constable who had held office for less than eighteen months. 6. to hold any kind of a hearing. But Dunsmuir. Wyoming (Village) (1980.but must be treated ―fairly‖. Strengthening this position was the consideration of practical difficulties inherent in extending the duty of fairness. Legislative exemption from the duty of fairness is itself subject to exceptions. Haldimand Norfolk (Regional) Police Commissioners (1979. SCC) – 3-prong Threshold test: a. Homex did not have an opportunity to make known its position once fully aware of the village's final position. b. c. Trigger/Scope of Duty a. 19 (1990. but stems from the fact that the employer is a public body whose powers are derived from statute. Respondent Board should have told Nicholson why his services were no longer required and given him an opportunity. ii. Facts: Having been unable to resolve a dispute with the developer about the provision of services in a subdivision. v. Facts: Bell wanted to rase rates. SCC): 1. 2. Federal Cabinet's rejection of an appeal from a decision made by the CRTC allowing a rate increase without allowing the petitioning group to be heard. The Court's decision can be criticized for overstating these difficulties in applying the duty of fairness to Cabinet decisions -It would certainly be possible to flexibly tailor the content of the duty. and although there had been a full awareness by both sides of the position of the other in the dispute. such as hearing requirements and the undermining of the Cabinet's public policy-making role. Substance is more important than form where the legislative exemption is concerned. Holder of public office is engaged in duties connected with the maintenance of public order and preservation of the peace.

So extends Nicholson beyond domain of officeholders dismissable only for cause i. Under Dunsmuir . but rather to allow administrative bodies to work out a system that is flexible. Neither the terms of the statute nor those of the contract of employment abrogate the duty to act fairly in this case. 2. All we are concerned with. 7. Duty of fairness thus has no application to the dismissal of employees. even though the employer did not need to show cause for dismissal under either the contract of employment or the statute. Employer-employee relationship in this case. e. c. There is a right to procedural fairness only if the decision is a significant one (e. New Brunswick (2008. 2. In the majority's view. ―The object is not to import into administrative proceedings the rigidity of all the requirements of natural justice that must be observed by a court. But it is important to respect the needs of administrative decision-makers. 1. The employer is a public body exercising statutory power. the more fairness will be required. effect of that decision on the individual's rights.private Dunsmuir v. What is the legal effect of a stated question under s. 83(1) of the Immigration Act on the scope of appellate review? iv.1 of Immigration Regulations authroizes to exempt any person under humanitarian and compassionate considerations. Modern public office holders enjoy contractual employment relationships. participatory rights accorded consistent with procedural fairness? 2. SCC) -. nature of the decision to be made by the administrative body.‖ Facts: Officeholder. no special fairness (cf judges. ii. duty to act fairly): i. Distinguished pure master/servant relationship -. b. iii. and that their contracts address procedural fairness concerns. then the court has no choice but to follow the legislature‘s intent. Widespread collective bargaining agreements limit arbitrary dismissal – fairness no longer limited to officeholders. (H&C) iii. i. 10 of Education Act . since that remedy not available for breach of K.a decision of a preliminary nature will not trigger procedural fairness. Section 114(2) of Immigration Act.authroizes Governor in Council to authroize minister to exempt a person from reg made under the Act.g. The respondent thus knew the reasons for his dismissal and was provided with every opportunity to be heard. Public employment governed by K should be resolved by K. d. The existence of a general duty to act fairly by public decision-making body will depend on the consideration of three factors (when all 3 present.it will no longer be possible for public office holders to be restored to their positions. The more final the decision. But if the statute specifically excludes procedural fairness. The requirements of the duty to act fairly in the scope of the employer-employee relationship have therefore been met. is whether the body is exercising a power stemming from a statute or prerogative power 2. i. the appellant Board made itself sufficiently available for discussion through meetings with the respondent and each party's concerns were made fully known to the other. ministers). Decisions must be final in nature . SCC) – Content of Duty a. Decisions that are of a "legislative or general nature" which are based on broad policy issues rather points of law are not likely to warrant a duty of fairness. Canada (Minister of Citizenship and Immigration) (1999. iii.6 of administrative law. and 1. relationship existing between that body and the individual. Baker Facts: ii. and the respondent was properly dismissed. adapted to their needs and fair. S. employment) and has an important impact on the individual. Were the principles of procedural fairness violated in this case? 1. Baker v. Must be sufficiently administrative or quasi-judicial. failure of Officer Caden to provide his own reasons? 3.Procedural fairness is due to an employee who is an officeholder at pleasure. 1. established by S. ii.Court notes that duty would not have applied in Knight. Was there a reasonable apprehension of bias? . 1. so this is why we are concerned.

Given that the Immigration Act does not expressly incorporate the labguage of Canadas international obligations w/r/t/ Intl Convention on Rights of the Child. the nature of the decision-making body. nevertheless. the nature of the decision and the process followed in making it. and the ―terms of the statute pursuant to which the body operates‖ 1.Sec.7 v. the more resembles judicial decision-making. ii. but subsequently limited increase to BC. specific procedural rights above what would normally be required under the duty of fairness would be accorded 3.Govt agreed to w/provinces to share costs for social assistance and welfare programs-. which rose to encompass substantive issues. some opportunity to participate or make views known. Ensure that administrative decisions are made using a fair and open procedure i. The fact that a decision is administrative and affects ―the rights. the procedure chosen by the tribunal. Alberata and Ontario as part of deficit reduction plan – w/o prior notice. Also doesn‘t apply to purely legislative function.Baker identified five factors as relevant in determining the general level of procedural fairness: i. the doctrine cannot lead to substantive rights outside the procedural domain 2. 1. When the statute leaves to the decision-maker the ability to choose its own procedures.Meaningful participation can occur in different ways in . the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness (the process provided for. Some tribunals operate pursuant to detailed legislation that establishes procedural requirements. b. or when the decision is determinative of the issue and further requests cannot be submitted iii. Facts: In this case. Baker's children? 1. Reference re: Canada Assistance Plan (1991). 4.deference to the procedural choices made by the decision-maker. privileges. a. the articles of the Convention and their wording did not give rise to a legitimate expectation on the part of Ms. a. but did not use doctrine of legitimate expectation. the legitimate expectations of the parties (part of doctrine of fairness) 1. or when the agency has an expertise in determining what procedures are appropriate in the circumstances. 8 of the Plan provided that these agreements would continue in force for as long as the relevant provincial law was in operation. Scope of procedure – ―decided in the specific context of each case‖ (Baker) i. Flexible inquiry. Was this discretion improperly exercised because of the approach taken to the interests of Ms. Baker that when the decision on her H&C application was made. disclosure of the information on which the tribunal will base its decision.facts & law=judicial) ii.just info decision maker relied on iii. or that a certain result will be reached. greater procedural protections will be required when no appeal procedure is provided within the statute. notice that the decision is going to be made. subject to termination by consent. a. and the determinations that must be made to reach a decision. or unilaterally by either party on one year‘s notice. v. Mount Sinai Hospital v. 1. c. the importance of the decision to the individual affected. or interests of an individual‖ is sufficient to trigger the application of the duty of fairness. (Baker) iv. fairness may require more extensive procedural rights than would otherwise be accorded. Expectation that a certain procedure will be followed. Binnie concurrence: distinguishes English application of legit expectations. BC: Fed govt precluded from introducing a bill by virtue of the legitimate expectation that amendments would only be made to the agreements by consent? But just covers right to make representations or be consulted – no substantive rights created by legitimate expectations. the function of the tribunal. Whether this is the kind of decision that should attract some kind of procedural right. shd BIC test be primary consideration? b. but duty not as high as Stichcombe (crim). Quebec (Minister of Health and Social Services) – Ministerial decision to cut funding from hospital after it detrimentally relied on promise of funding – SC held hospital was entitled to rely on previous representations of funding. the nature of the statutory scheme.

Lack of an oral hearing or notice not necessary for H&C. if credibility in issue – Singh v. or in other circs. where there is rt to appeal) Facts: Duty of fairness here is more than simply minimal. but the requirement was fulfilled by the provision of the notes of Officer Lorenz.it is exception to general principles of Canadian immigration law.7 Charter Opportunity to give evidence and cross-examine. the provision of written reasons are necessary. c. —modern state couldn‘t function if oral hearing required for every admin decision ii.require full and fair consideration of issues 2. to something that will be required as a matter of course a. vi. Right to counsel. Comments on usefulness of reasons and holds that ―in certain circs. 5.Baker provides an elevation of the duty to provide reasons. 10(b).7 of charter Oral or written reasons for its decision. Baker's case. and for the facilitation of the court's review of the legality of the decision (i.e. v. S. b. when there is a statutory rt of appeal. 1. 4. H&C decision different from judicial decision – since discretion 3. b. Reasons are written for two audiences: communication of the decision to the affected parties. Meaningful opportunity for those affected by the decision to present the various types of evidence and views relevant to their case and have it fully and fairly considered. esp. may act as a form of discipline for the decision-maker c.8 different situations. Statutory scheme. 6. some form of reasons should be required. and a. In Ms. Not necessary at common law. particularly given the fact that several of the factors relevant to determining the content of the duty of fairness point toward a more relaxed standard.may lead to inappropriate burden and may lead to increased cost and delay. The opportunity for the appellant or her children to produce full and complete written documentation in relation to all aspects of her application satisfied the requirements of the participatory rights required by the duty of fairness in this case. d. Right to make written submissions Oral hearing similar to that which occurs in a court i. But. iv. 2(e) BoR and s. the duty of procedural fairness will require the provision of a written explanation for a decision…where the decision has important significance for the individual. but decides necessary here a. B/c profound importance to those affected 2. Minister (1985) ii. Reasons demonstrate that a claimant has been heard. S. .

right to an independent and impartial hearing – nemo judex in sua caua debet esse (no one is fit to be judge in his own cause) i. 3. administrative tribunals are not separate from the executive. 96-100 do not apply to provincially appointed inferior courts.e. Quebec (Regie des permis d‘alcool) – limited term of tenure ok so long as not serving at pleasure and not too short. But Tribunals don’t need to meet same degree of independence as courts do ii. . suspends license of hotel.The second requires the decision-maker to hear and listen to both sides of the case before making a decision. of the judge) and institutional/collective (i. Ocean Port argued that the Liquor Appeal Board lacked sufficient independence to render a fair hearing—since appt of its members: ―at the pleasure‖ of the Minister by statute. McKenzie v. Core characteristics of judicial independence include: security of tenure. ss. other indices of independence (e. fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to those parties (so basically notice and opportunity to respond). Ct held that the enshrined const protection of judicial independence could not be translated to the context of administrative decision-making bodies. s. If the legislation permits it. This security of tenure is guaranteed for superior judges by the constitution. 1.Appointment and removal is key in admin 1. oaths of office) b. 99. Ocean Port Hotel Ltd. 2747-3174 Quebec Inc.unwritten const guarantees of judicial independence since highly adjudicative function 9. Security of tenure i. Minister of Public Safety (2006). on its terms. The first is that a decision-maker should neither judge her own cause nor have any interest in the outcome of a case before her. heard by decider.g. No bias iii. This is the rule against bias. Independence a. right to be heard – audi alteram partem (hear the other side) i. 2. Facts: RCMP investigated and prosecutes liquor control and licensing. while judicial independence exists to protect the judiciary from interference by the executive branch of government. Will of the legislature should prevail in determining how much independence any given tribunal should have c. decision to suspend license resembled judicial decision. SCC) a. financial security and administrative independence. Liquor Control and Licensing Branch) (2001. dismissal for cause ok. Judges.e. and Bias 8. Admin tribunals ―span the divide‖ bet executive and judicial. Impartiality. principles of natural justice/fairness are encapsulated in two central ideas. Ref re Independence and Impartiality of Judges of the Prov. a. b. At c/l. 2 dimensions of judicial independence for financial and security: individual (i. v. independent ii. otherwise known as provincial courts. only protects the security of tenure of superior court judges. v. When the Liquor Appeal Board held a hearing de novo and confirmed a suspension issued by a senior inspector with the Liquor Control and Licensing Branch. Court of PEI (1997) ii. British Columbia (General Manager. then legislation prevails – look to enabling statute b. BNA .ability of the government to remove a judge for such things as rendering decisions that do not meet the government's approval. Three objective conditions have been identified as necessary to guarantee judicial independence i. 2. Flexible inquiry – depending on nature of tribunal.distinguishes Ocean Port. of the court or tribunal of which that judge is a member). residential tenancy adjudicator. BC Ct.S. ii. interests at stake. 99. In essence.9 Independence. says more security required for members. Admin . Moreover.

district. . ii. ii. rather than for the sake of rendering decisions solely on the basis of their legal judgment. i.full board meeting held to discuss draft reasons of 3member panel. . 2. ss. from audi alteram partem principle (hear the other side) 1. of all three types of courts (superior. Ontario (Labour Relations Board) (2001) 1. not facts iii. Full bd. respectively. This order was reversed on appeal based on a finding of statutory testimonial immunity. Facts: Collective bargain agreement – local electrical contracts forgot to put appellants name on document listing all employers for which it claimed rights. Adjudicative independence i. and county) – but not provincial. Agency members must write their own decisions (Ontario College of Pharmacists Ct. the vice-chair who presided over the panel. Facts: Ontario Labour Relations Board. Presumption of administrative regularity. Pty‘s do not have the oppty to respond to all the arguments raised at the meeting. Consolidated-Bathurst (1990. Appeals 1985) ii. Prior to the hearing of the application for judicial review. a. thereby depriving administrative tribunals of a critically important means of achieving consistency. Institutional control deals with the manner in which the affairs of the court are administered – from budgetary allocations for buildings and equipment to the assignment of cases. To accomplish this goal. Only the person who hears the case is allowed to decide it. Downsides a. 100 protect the financial security. Institutional control i. Ellis-Don Ltd v. Meeting discussed draft – found no abandonment. there could be a chilling effect on institutional consultations. Making sure that judges are not put in compromising situations where they may choose to make decisions in order to protect their own employment and interests. Consultation w/Wider Group – ok w/law. government will not alter their pay for arbitrary reasons such as discontent with decisions rendered. iv. b. even though some members didn‘t hear argumen. Financial security i.no evidence that they discussed facts and final decision on face was law and policy. International Woodworkers of America. Forum where such a consensus can be reached freely as a result of thoughtful discussion on the issues at hand. independence from interference by other judges – delicate in admin context b/c group needs to collaborate to further law/consistency of outcome 2. Local 2-69 v. In admin.Without such protection. SCC) 1. Deliberative secrecy is important to safeguard independence of administrative adjudicators – even if it comes at price of more discovery. First draft of panel‘s decision held abandonment of bargaining rights. Fostering coherence should not compromise any panel member's capacity to decide in accordance with her conscience and opinions. 3. then are the concerns about financial security the same? d. e. Presumption cannot be overturned w/o an evidentiary foundation – even though hardship in establishing evidentiary foundation given deliberative secrecy. judges are guaranteed a fixed salary under the constitution. and the registrar of the board to give evidence with respect to the procedures implemented by the board in arriving at its final decision. if you're just a part-time member.10 c. iii. the appellant obtained an order compelling the chair of the board. The second goal is a promise that the amount judges are paid will be sufficient to keep them from seeking alternative means of supplementing their income. iv. b. or it is an honorific appointment.

There were circumstantial guarantees present that the meeting in question was not about ―pressure‖ – no attendance was taken. 10. and the manner in which they are written. it has been held that overlapping functions are not a problem so long as sanctioned by statute enacted in conformity with the constitution and so long as the multifunctionality does not give rise to a reasonable apprehension of bias under a quasiconstitutional statute.The notes of Officer Lorenz demonstrate a reasonable apprehension of bias. so if a member can be persuaded that their legal position is wrong. President expressed his opinion to members of the quorum. commission split. but on the fact that Baker was a single mother with several children and had been diasgnosed w/psychiatric illness‖ Didn‘t approach case ―with impartiality appropriate to a decision made by immigration officer. Cf. The grounds for the apprehension of bias must be substantial. Reasonable apprehension of bias. that is a good thing c. b. Parties should be advised of any new evidence or grounds and given an opportunity to respond. few safeguards (attendance taken. i. Lorenz‘s statements give impression that he may have been drawing conclusions based not on the evidence before him. president of commission issued final opinion under statute. A real likelihood or probability of bias should be demonstrated. and deciding in accordance with those interests. reasonable apprehension of bias if ha counsel participates in drafting process Mixing Fact-Finders.11 2. ii. Baker. v. Board's mandate. Multifunctionality 1. c. Full board meetings allowed the members of a large board with a heavy case load to benefit from the acquired expertise of the collective. president of commission differed. hand votes. His notes. do not disclose the existence of an open mind or a weighing of the particular circumstances of the case free from stereotypes.is whether a reasonable. Privative clause made it even more incumbent on the board to take measures to avoid conflicting results. Safeguards i. and then became a decision maker is hardly consistent with the rules of natural justice—reasonable apprehension of bias. Generally. Coherence is a valid goal to be fostered so that the outcome of disputes did not depend on the identity of the decision-maker. No one shall be a judge in her own cause – in the narrow sense this captures personal interests being bound up with the case. Facts: initial decision draft by members of panel favorable. as long as they're not talking about factual findings. Quebec (Commission des affaires socials) (1992). minutes kept—systematic pressures). . (privative= no review) d. inviting them to reconsider the decision. Mere suspicion of bias is insufficient for the test to be met. there's actually nothing wrong with influencing a decision (influence as distinct from pressure).‖ iii. Tremblay v. i. submitted to plenary meeting of commission. Re Sawyer and Ontario Racing Commision (Ont. 1. Process was different than Consolidated b/c consultation w/others was effectively compulsory when contrary to previous decisions (increase appearance of lack of independence). e. nemo judex in sua caua debet esse b. ii.imposition of consultation by member of bd who wasn‘t in panel cd be inappropriate constraint. as the wellinformed member of the community would perceive bias when reading his written reasons. Impartiality a. Upheld bd meetings: a. CA 1979). Structure of the Labour Relations Board was conducive to tripartite exchanges in order to use its combined expertise to regulate labour relations in a prompt and final manner. etc. Perception by the user that a tribunal has the potential to act as both prosecutor and judge in the same matter. well-informed person having thought the matter through would conclude that an administrative decision-maker is sufficiently free of factors that could interfere with his or her ability to make impartial judgments. Counsel and Adjudicators = reasonable apprehension of bias + adjudicative independ i.where counsel is connected w/one of parties to the hearing.

Allows hearing to take place w/subsequently appointed commissioners. . d. v. Cf 2747-3174 Quebec Inc. Bovbel v. Canada (1994) iii. Lawyers who investigate shd not also assist those who adjudicate. Thus unfair conduct alleged in 2 nd notice of hearing already been found by commissioners.so long as interference w/ decisionmakers conscience (Tremblay).whether claimant has well-founded fear of persecution for a reasons that engages the convention refugee definition – tribunal doesn’t offend justice by taking advice re: legal matters in its reasons. Ct Appeal) 1. Tribunals can seek advice of counsel – Armstrong v.the roles of prosecutor and adjudicator can never be overlapped even if statutorily authorized 2. Ontario Securities Commission (1999. 2. Policy Guidelines i. Prosecuting counsel must in no circumstances be in a position to participate in the adjudication process. v. No Reasonable apprehension of bias. Bd had ―reasons review policy‖ – submitted draft of reasons to legal advisors before issuing them to parties. Process in guidelines for examining refugee applicants doesn‘t fetter claimants rights to fair hearing. Thamotharem v. Khan v. Facts: Health Disciplines Act. 4. The functions of prosecutor and adjudicator cannot be exercised together in this manner.12 ii. 3. College: counsel just reviews chairman‘s draft and ―assists chairman express views of committee‖ – revised draft went to whole committee after input from counsel. v. 2. and any legal advice from indepepdent advisor should be made known to parties so they can make submissions of law. Quebec (Regie des permis d‘alcool) 1. the presentation of the case to the directors and the decision. Order of questioning upheld by federal ct. Nothing here that counsel‘s involvement compromised independence or impartiality of committee – just assisted in preparation of intermediate draft. Khan argues Committee breached procedural fairness by permitting counsel to play so significiant a role—reasonable apprehension of bias.A. Bd referred a draft of its written decision denying P was convention refugee to legal counsel who was not member of Bd and had not participated in hearing. Also just because counsel giving advice doesn‘t make it ―legal advice‖ and counsel expressly disclaimed that it was – so ok within statute. Reasons for decision must be committee but can use outside assistance (ConsolidatedBathurst) – volume and complexity of modern decision-making necessitates resort to outside sources. 3. Policy reflected findings of staff report – which set out in detail conduct which is subject matter of second notice of hearing. Adjudicative Independence: Decision must be tribunal members – if reasons presented for the decision are not those of the decision-maker.real concerns about validity of the decision.guidelines #7 directs members to consider facts of case before them. the filing of complaints. Cf E. Investigative role of staff and adjudicatory role of commissioners – so interwoven that reasonable apprehension of bias against prior commissioners—but commissioners could be involved in both just not on facts here. Ont. The Act authorizes employees of the Regie to participate in the investigation. 2. College of Physicians and Surgeons of Ontario (Ontario Ct Appeals 1992) 1. iv. Having come to a decision on what is essentially question of fact.members of committee can‘t participate in any prior investigation and can‘t communicate. vi. No likely apprehension of bias. Canada (Minister of Employment and Immigration) (1994) 1.if consultation-participation by non-member lawyer in decision. Nothing wrong w/policy – just requires submission of reasons prior to final form. Manning Ltd. except for counsel. Canada (Minister of Citizenship and Immigration) (2008) 1. OSC issued policy statement citing 10 securities dealers as practicing unfair sales practices and then issued noice of hearing against them where commissioners would judge.

7 includes ―every human being who is physically present in Canada. e. Wilson makes the point that where the issue turns on credibility. 8-14 of the Charter don‘t apply to immigration detentions because it‘s a ―civil detention‖ because it‘s imposed by an administrative regime (so that‘s why criminal case law does not help) b. Singh v. 7 applies to non-citizens-. g. 32 limits Charter to matters w/Parliament/provincial control – McKinnon (Charter case) is all about whether the Charter applies to universities. E. h. Knight 3-Prong) a. with exclusive appellate jurisdiction over the discipline committees of most statutory professional bodies in Quebec. d. ss. f.13 Charter and Administrative Law 1. of Quebec . liberty. 11(d) doesn‘t apply in the administrative realm. But substance. 2.tribunals established by legislature (as part of exec branch) can be entitled to interpret and apply charter. c. etc. complainants must first show ―life. s. SCC) a. 7 b/c the one big thing you can get under the Charter is the ability to invalidate legislation.‖ and the security interest ―must encompass freedom from the threat of physical punishment as well as freedom from such punishment itself.The principles of fundamental justice of which sec. Singh/Suresh. or security‖ interests are impaired by the relevant decision (vs.‖ ii. The interests protected under s. (Singh) 1. ―Everyone‖ in s. Minister of Employment and Immigration (1985. 7 speaks. principles of fundamental justice become procedural fairness in this Charter context. SCC overturns. right to judicial review of administrative agencies was constitutionally guaranteed on jurisdictional issues.g. b. 7 are of such importance that usually an oral hearing will be required when those interests are engaged. Nova Scotia (Workers Comp Bd) v. go to Oakes for admin review s. The statute provided that the decisions of the tribunal were final. are the same principles underlying that duty applied Baker framework to assess the adequacy of procedure afforded to Suresh – so basically. it is hard to imagine how anything less than an oral hearing could satisfy the requirement for procedural fairness Remedy. To access s.7 fundamental justice .only oppty if the IAB concluded on the basis of the asylum seeker's written submissions that there were reasonable grounds to believe that the claimant could make a . Cannot be saved under s. A. Courts rely on c/l procedural fairness to interpret S. though not identical to the duty of fairness elucidated in Baker. Narrow Scope of Actors i. 1. Crevier v.Principles of Fundamental justice include procedural fairness i. Martin. Facts: Refugee claimants had limited oppty to present their cases in oral hearings before either the decisionmaker at first instance or the IAB on appeal-. however.Some Ps go s. hospitals. 7. which you can't get through the c/l route.Security of the person includes threat of phys suffering too – threat of torture. yet there's no question you can get judicial review with respect to these kinds of entities and bodies Oral Hearing i. Tribunals allowed to do charter review i.G. because adopting administrative procedures which ignore the principles of fundamental justice merely for reasons of cost and efficiency is not sufficiently compelling to justify the limitation of rights. 8-14 generally out i. Recognized that s. caused the govt to overhaul the statutory scheme and establish the Immigration and Refugee Board to ensure that all refugee claimants receive a fair hearing in accordance with the principles of fundamental justice. c.Professions Tribunal. No limitation to review i.Suresh Ct -.

Suresh v. were subject to maximum curial deference. and thus the importance of the right affected militates in favour of heightened procedural protections. d. such as safeguarding confidential public security documents.14 successful claim at an oral hearing. Standard of Review:. and is of a serious nature. Reviewable on correctness. Canada's international commitment to the Convention against Torture also suggests that Suresh had some further legitimate expectations which enhance the need for procedural safeguards. this factor requires even more substantial protections. 2. and emotional consequences. and held Suresh did not have rt to an oral hearing.not enough procedure – Ct upheld provision in Immigration Act that permitted Minister of Immigration to deport non-citizens who were found to be a ―danger to the security of Canada‖. officer recommended in a memorandum to the Minister that she issue an opinion under s. process by which determination made violates Charter. 7 was reviewable on a standard of correctness. but did have the right to: i. . Suresh did not have the opportunity to see or respond to the officer's memorandum. Ct also noted Deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter—unless exceptional circs. the determinations of whether a refugee was also a threat to national security (thereby opening the door to deportation). however. including claims relevant to the threat he posed to Canada and the risk of torture he would have if deported (oppty to challenge Minister‘s info) iii. The remedy available is that the case be remanded to the Minister for reconsideration. Minister notified Suresh that she intended to consider ―danger opinion‖ and gave oppty to make submissions.Ct held that the Minister herself (and not a delegated officer) must provide ―responsive‖ reasons that demonstrate both that the individual is a danger to Canada and that there are no substantial grounds to believe he would be subject to torture. Right to written reply to the claims set out in the memorandum.under c/l. in the subsequent deportation hearing. The nature of the decision somewhat resembles judicial proceedings. because the provision sets out no procedures. (No c/l right b/c enabling statute limited oral hearings. and Suresh is to remain in Canada until his new hearing is complete. Facts: Suresh detained on a security certificate for links to terrorist group. it is also discretionary for the Minister. Separate ongoing process called the ―danger opinion‖ . nor particularly weak. 4. including the memorandum from the immigration officer who initially reviewed Suresh's case. which the Court described as ―more like a prosecutor's brief than a statement of reasons for a decision. financial. because Suresh may be subjected to torture. procedural safeguards. 1.‖ Minister issued danger opinion. b. 53(1)(b) that Suresh constitutes a danger to Canada. e. Further. i. Deportation from Canada engages serious personal. c. this need for deference must be reconciled with the elevated level of procedural protections mandated by the serious situation of refugees. Immigration Act did not require the Minister to adopt or follow any particular procedure for danger opinion.While the Charter issue whether deportation to torture violates s.whether the risk of danger posed by this person remaining in Canada would outweigh the risk of a well-founded fear of torture. After submissions. whereas other substantive findings (threat to national security. (in this case and in Baker. Disclosure of materials on which the Minister would base her decision. SCC) a. consistent with procedural fairness ii. The Minister must be allowed considerable discretion in evaluating future risk and security concerns. Baker criteria: 1. actual likelihood of torture) reviewable on deference. Subject to privilege or other valid reasons for reduced disclosure. Ontario (HRC). Canada (Minister of Citizenship and Immigration) (2002. so the choice of procedures suggests a degree of deference to the Minister. Also Prichard v.) Oral hearing required here. S.Unlike the statutory provisions under scrutiny in Singh. 7. 3. particularly for a right of appeal. Reasons.‖ 2. Fed Ct upheld the certificate and. so this factor (the closeness of the administrative process to the judicial process) militates neither in favour of particularly strong. the adjudicator found Suresh to be inadmissible as a refugee. ii. and is free under the terms of the statute to choose whatever procedures she wishes in making this decision. and whether the refugee actually faced a substantial risk of torture if removed. The nature of the statutory scheme suggests the need for strong procedural safeguards. the court is at least willing to consider international law in legitimate expectations)5. 3. notwithstanding an acknowledgement that Suresh would face a risk of torture upon his return to Sri Lanka. priv allowed agency to withhold legal opinion.

mo before hearing scheduled. Purpose of the tribunal as determined by interpretation of its enabling legislation. leading to their detention pending deportation. Blencoe v. Will usually apply automatically to questions of fact.reasonableness i. Security. 3. SCC) Standard. the Court suggests that an amicus curiae (security-cleared special advocate) could be appointed to represent the named person during in camera proceedings. Canada (Citizenship and Immigration) (2007. Already determined under existing case law? If so.1 : To remedy the procedural shortcomings of the statutory scheme.person's removal may be to a place where life/freedom threatened iii. Charkaoui v. British Columbia (Human Rights Commission) (2000. there is no appeal or opportunity for further judicial review. considering four factors: 1. SCC): a. Two-step process for determining the appropriate std of review: i. E. or to otherwise correct the procedural deficiencies. Constitutional questions – correctness i. 77 of the IRPA. fam. 78-84 of the IRPA. Sexual harassment complaint.revised “pragmatic and functional” and now call it ―standard of review analysis. Had to move twice. During the review process. ii. privative clause has come to be viewed as a communication from the legislature that courts should recognize the interpretive authority of the tribunal within its area of expertise. Art Hauser. No. but that judges could exercise their rule of law powers of oversight on constitutional and jurisdictional matters. but not its sources or any other details that might compromise national security. and that pre-determined standard will apply. Regarding division of powers bet national and provincial . 30. The judge then provides to the named person a summary of the evidence. Presence of a privative clause – gives ‗‖rise to strong indication‖ of reasonable review. Questions of fact -. c. the detention and the reasonableness of security certificates are subject to review by the Federal Court. 7 b/c state hadn‘t interfered w/life choices—if there was a s. 1 because the infringement did not minimally impair the right at stake. 2. ct must do a contextual standard of review analysis. S. the standard of review analysis need not be repeated.g. No fundamental justice b/c no fair hearing – judge acting w/incomplete info-. it has been effectively gutted. leads to the conclusion that the violation of s. If acting within its legislative grant b.persons subject to security certificates face detention pending deportation ii. S. ex parte and in camera hearings are held at the request of the Crown if the judge believes that disclosure of some or all of the evidence on which the certificate is based could undermine national security. finances depleted. Standard of Review 1. context in which decision made a.political career over. A question of law that is of central importance to the legal system and beyond the specialized expertise of the tribunal—correctness) b. 7 could not be saved under s. If not. discretion and policy ii. Under ss. b. Dunsmuir v. presence of appeal right suggests correctness std a. questions of mixed law and fact where the legal issues cannot be easily separated from the factual issues. but the threshold to cross is set very high. The Crown's failure to incorporate such a measure. If the judge determines that the certificate is reasonable.15 4. 5. Canadian security agencies alleged that Charkaoui and others were involved with terrorist organizationsissued security certificates against these men pursuant to s." Not narrow enough under S. But possible that an inordinate and undue delay could result in stigmatization and an impairment of the psychological integrity of the alleged wrongdoer (security interest).7 breach – fundamental justice analysis based on common law as in suresh b. c. Nature of the question at issue a. 7 doubly engagedi.‖ a. New Brunswick (2008.labor arbitration – judicial deference required. Liberty . SCC) a.“The principle of knowing the case to meet when liberty is in jeopardy has not merely been limited by the provision allowing undisclosed material to be presented.

4. applied the reasonable simpliciter std and reversed IAD. Dunsmuir‘s challenge and concluded that fairness was indeed required. Facts: Appeal brought by permanent resident Khosa from an order that he be removed from Canada for serious criminality. b. not of central importance to legal system.concerned with whether the decision falls within a range of possible.16 Questions of jurisdiction. Reasonableness review – doesn’t mean cts can always substitute judgment. and had not been provided." Khosa appealed the order to the Immigration Appeal Division (IAD) on H&C grounds. A labour arbitrator was appointed to address Mr. not to the judges. b.reasonable (reversal) i. in the main. SCC). having been convicted of criminal negligence causing death as a result of his "street racing. The language of the legislation signals an intention to leave considerable choice to the Minister on the question of whether to grant an H&C application. Full privative clause in statute.‖ Thus. but Parliament saw fit to confide that particular decision to the IAD. P could have been discharged for cause.unreasonable i. Question is whether adjusticator is allowed to inquire into employer‘s reason for dismissing an employee with notice or pay in lieu of notice? Could adjudicator lookbehind the employer‘s characterization of Dunsmuir‘s dismissal as being not for cause. Canada (Minister of Citizenship and Immigration) (1999. 2. The IAD denied Khosa‘s appeal. its role within the statutory scheme as an exception. Canada (Citizenship and Immigration) v. the appropriate standard of review is reasonableness simpliciter. considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation. ii. Baker's children. (3-level review. Baker v. a discrete and specialized regime in which the decision-maker has special expertise. Doesn‘t hold up under reasonable std—under ordinary rules of K. and offered him severance in lieu of notice. acceptable outcomes which are defensible in respect of the facts and law Facts: P was a non-unionized civil servant employed in the DOJ in New Brunswick. Mr. Majority felt that the IAD disposition was unjust to Khosa. In this case. legislative purpose – time-effective method of resolving employment disputes – timely and binding settlements. . due to a number of problems. when the tribunal has particular expertise in the application of a general common law or civil law rule in relation to a particular statutory context (adjudication in labour law) c. Wasn‘t required to provide cause. an opportunity to know the concerns of the employer and a chance to address them). Officer Lorenz was completely dismissive of the interests of Ms. pre Dunsmuir). the fact that the decision-maker is the Minister. iii. Reasonableness standard . is not supported by any reasons that can stand up to a somewhat probing examination.g. relative expertise of labour arbitrators in interpretation of collective agreements. Dunsmuir took the position that he was entitled not just to a contractual remedy but also to fairness before being terminated (e. given the fact-specific nature of the inquiry. The Federal Court of Appeal disagreed. and b. The reviewing judge reversed the arbitrator‘s finding. The SCC agrees with the Federal Court of Appeal‘s application of the reasonableness standard. Khosa (2009. and the considerable discretion evidenced by the statutory language.correctness i. but disagrees with the result and affirms the IAD‘s decision. and the individual rather than polycentric nature of the decision also suggest that the standard should not be as deferential as ―patent unreasonableness. and the failure to give serious weight and consideration to the interests of the children constitutes an unreasonable exercise of the discretion conferred by the section – a reasonable exercise of power conferred by statute requires close attention to interests and needs of children. only if discharged for cause is it reviewable. where tribunal must explicitly determine whether its statutoty grant of power gives it authority to decide a particular matter Expertise of the tribunal a. where a tribunal is interpreting its own statute or interpreting statutes closely connected to its functions d. or with or reasonable notice or with pay in lieu thereof. the explicit contemplation of judicial review. ii. Government terminated his employment. The Federal Court applied the "patent unreasonableness" standard of review and affirmed. Scope of Substantive Reasonableness Review a. An unreasonable decision is one that. Yet the absence of a privative clause. SCC) . c.

and is required to make payments of property taxes based on proportionate share. Calgary (City). What std applies to question of ―Did Bd exceeded its jurix when it allocated an employee to bargaining unit from which the position employee held was specifically excluded?‖ ii. Alberta (Municipal Govt Bd) (2008. Substantive Rt to Reasons a.17 c. . Upholds MGB‘s decision. CUPE (2008).Maj. Mineral Springs (2008). Reasonableness applies not only to outcome of decision but to process of articulating reasons. correctness review applied. SC). municipalities in Dunsmuir/Calgary.correctness (reversal) i. found no peaks. doesn‘t involve narrow jurix uestion and does no constitute big legal question>> Reasonable std. Dunsmuir: 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. ABCA) – reasonable (reversal) i. 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…An example may be found in United Taxi Drivers' Fellowship of Southern Alberta v. Std of review is reasonableness. b. Safety (2008 NBCA).reasonable (reversal) i. Rejects argument that .and given statutory rt of appeal. Only caveat: Tribunal must have legal authority to interpret and apply disputed provision of its enabling provision iii. ii. 3. 4. Public Service Alliance v.‖ Remitted to bd with direction that it explain why it concluded that it was outside it‘s jurix under Act. Owners of shopping centres reached settlements with city on property taxes. Bd. Opinion: ―I do not think the reference to reasons which ―could be offered‖ (but were not) should be taken as diluting he importance of giving proper reasons for an administrative decision. ii. That case involved the decision-making powers of a municipality and exemplifies a true question of jurisdiction or vires. Canadian Fed Pilots Assn (2009 FCA) i. MGB decided that Bay was entitled to file a complaint against assessment based on statutory language. The Bay is anchor tenant in shopping center. Art Hauser Centre Bd v. Reasonable Std Review for Jurix Questions within Enabling Statute a. and therefore contracting not justified. MacDonald v. said all they had to do was notify and consult. Disagreed w/conclusion that standards imported. lower ct applied correctness std and reversed MGB‘s holding.Whether statute permitted Bd to amend definition of bargining unit is a jurix question and therefore must be decided correctly under Dunsmuir. 2004 SCC 19. but lower ct. but opening clause of K gave City rt to contract out work ―having regard to the desirability of maintaining a stable work force and hacing regard to periodic peaks in work load dictating the necessity of contracting work‖ – City required notify and consult w/union before making decision. 1.in absence of privative clause. which do not possess any greater expertise than cts in delineating their jurix and did not engage adjudication or policy making expertise 2. vs. d. In that case. City of Calgary applied for judicial review of MGB‘s decision.Dunsmui said notion of deference requires a ―respectful attention to the reasons offered. Calgary v. Khosa (2009. the issue was whether the City of Calgary was authorized under the relevant municipal acts to enact bylaws limiting the number of taxi plate licences. Stewart v. where Bd concluded that it had no jurix to hear appeal re: increase of operating room time. Appeals Tribunal concluded that ―accident‖ in Govt Employees Comp Act did not include gradual onset of stress. [2004] 1 S. City created board to operate sports complex.‖ Citing Baker. City was limited by K with union from contracting out concessions on permanent basis. 485. Ct of appeals – MGB interpreting own statute – subject to deference. Appeals ct said -. since it imported standards from another statute.Appeal from lower ct review of Hospital Priveleges Appeal Board. Dunsmuir said presumption that tribunals‘ interpretation of their enabling legis is normally reviewable on reasonableness std. 1.R.C. decided to contract out concessions of complex. Workplace Health. e. Lower ct: Substituted her interpretation of clause for that of the board and thus incorrectly reversed bd decision under reasonableness std.

Is there another reasonable and effective way to bring issue before ct? c. Borowski (1981) Finlay v. P claims to have been prejducied by alleged provincial non-compliance with conditions to which federal cost-sharing payments are made subject – alleges that prejudice caused by deduction from his monthly social allowance payment to repay an overpayment. Govt to Manitoba were illegal b/c Manitoba‘s social welfare legislation didn‘t comply w/plan‘s requirements. P doesn‘t have standing under historicl rule – b/c prejudice allegedly caused is too indirect to be causative. (Finlay-. P says transfer payments made by fed.esp since great many refugee claimans have appealed decisions which affect them i. 4. Is there a serious issue raised as to the invalidity of the legislation in question? ii. Vriend and 3 gay groups sought declaration that omission of sexual orientation from list of species of discrimination was contrary to S. In other cases. AG refused to institute proceedings when requested to do so. Exclusion of sexual orientation as a protected ground and procedures for protection of 2. Federal Council of Churches v. Proper role of courts. 3. 3. clear from position adopted by AG and he would not have consented to proceedings. McNeil (1976) d.G. Person historically can use w/o joining AG in two cases – (1) where interference in public right is such that some private rt of his is interfered with (obstruction on public highway that interferes w/private rt of access from highway).This is not a case abt employment discrimination as distinct from other forms of discrimination that occurs w/I the private sphere – it is the denial of access to the complaint procedures of the Alberta HR Commission that is the essential element of this case.18 Standing 1. Q of discretionary control over standing to assert a purely public right by action for declaration or injunction. it can be shown that the measure will be subject to attack by a private litigant. Traditionally. Allocation of judicial resources/need to screen out busybody – addressed by requirement that there be a serious issue raised and that a citizen have a genuine interest in the issue. Nova Scotia Board of Censors v. Historical general rule.Each of these cases involved attempts to challenge the constitutionality of legislation by private individuals with no particular stake beyond that of being citizens and taxpayers i. Genuine and valid interest. Ps sue under Charter and BoR. SC) – finding standing a. Another reasonable way to bring before Ct. The whole purpose of granting status is to prevent the immunization of legislation or public acts from any challenge. Thorson v. 2. Vriend v. Minister of Justice of Canada v. (2) where P suffers damage from public right peculiar to himself. 1986).private litigants. Didn‘t confine challenge to employment provisions of act. But attempts to challenge the constitutionality of legislation by private individuals with no particular stake beyond that of being citizens and taxpayers accepted by SC. Private individuals. Alberta (1998. citing 1903 case of Boyce v. on a balance of probabilities. Paddington). AG had standing to assert purely public right through proceeding for declaratory or injunctive relief through his own motion or through relation of another person.only had standing if convinced AG to lend support to proceedings (relator proceedings). 15. i. Determination that ct should have benefit of contending views of persons most directly affected by issue – addressed by requirement that there be no other reasonable and effective manner in which issue may be brought before ct. The granting of public interest standing is not required when. b. of Canada (1975) c. Canada (Minister of Finance. Ps co-cordinates work of churches aimed at protection and resettlement of refugees. b. Has it been established that P is directly affected or that has genuine interest in case? iii. i. But here. There are cases where not appropriate.Public Interest Standing Allowed a. But has public interest standing. Canada (Minister of Immigraton) (1992) a. . Concerns about pubic interest standing: 1. 3 questions (std from Finlay): i. and not Ps dismissal. A. b.addressed by requirement of justiciability. a. Immigration Act of 1988 completely changed procedures for whing is to prevent the ether applicants came w/I definition of convention refugee.

—Council had standing to make these arguments. Genuine issue – taxpayer. AG wanted to be party to ensure right to appeal. b. sought declaration that minister of national revenue acted illegally in providing taxpayer w/favourable private ruling while maintaining a different pubic position on taxability of funds in question.No point in waiting for someone to be discriminated against in housingwasteful of judicial resources. Harris v. Canada (Atomic Energy Control Bd (1984) – Finds standing. but Energy Probe wanted to preclude possibility. Question of general importance is raised – raises question as to composition of other boards similarly constituted. rooted in the specialized jurisdiction or expertise of the tribunal. Two reasons for AG standing: i. SC)i. CAIMAW Local 14 v.when the issue becomes. d.can only appeal jurix.Choosing persons to appt for Bd is public interest. Most Effective – Harris request Ag to bring proceedings twice. b. No other Effective Way . That is. ii. Harris. e. taxpayer. the tribunal is in the best position to draw the attention of the court to those considerations. a. Standing of Bd to Appeal a. . then Bd member will be ineffective member for many decisions – and raises issues involved in part-time appointments who have interests in industry. as it does in relation to the patently unreasonable test. 5. Canada (2000 CA) – finding standing a. Public confidence for Bds in general. c. Paccar of Canada Ltd (1989. To allow an administrative Board the opportunity to justify its action and indeed to vindicate itself would produce a spectacle not ordinarily contemplated in our judicial traditions b. Standing of Industrial Relations Council -. 6. Edmonton (1979). 7. Energy Probe v. AG has direct interest in outcome of case – if bias exists. granted public interest standing. there is a powerful policy reason in favour of permitting the tribunal to make submissions. whether the decision was reasonable.19 human righs. Northwest Utilities v. Energy Probe challenged renewal of nuclear reactor license on basis of bias of member of licensing authority. ii. which may render reasonable what would otherwise appear unreasonable to someone not versed in the intricacies of the specialized area. Serious issue – doesn‘t just want inrepretation of section of Act. Justiciable – Minister acted illegally for ulterior motives – raises question of violation of act that court may assess by reference to Minster‘s duty to follow act ―absolutely‖. i.

Generally a. The issues are whether the Ministry failed to comply fully with one or more of the 1998 orders. the broad and liberal view to be taken of a Board's authority under s. A successful certiorari application results in the quashing of a tribunal's order or decision—can not substitute its decision for decision of tribunal. it must clearly state what the original panel is to do or what it must refrain from doing. The complainant need only prove noncompliance with the order. A party to an administrative action may also bring an action in court against another party to enforce the tribunal's order. More commonly. Certiorari -ct requires some inferior tribunal or judicial officer to provide it with the record of its proceedings. (2002. If the court issues directions.20 Remedies 1. c. Ontario Board of Inquiry. rights-oriented way. discretionary power to fashion the remedies they see fit. Other statutes give tribunals broad. HRC): a. Under judicial review. i.They may try to develop remedies that address underlying structural or systemic problems. at which point the burden shifts to the respondent Ministry to rebut the presumption that in consequence thereof the environment of his workplace remains poisoned. Prohibition: to order a tribunal not to proceed iii. Ontario (Ministry of Correctional Services). for review for excess of jurisdiction. Tribunal does not have general jurix >> power to impose a particular remedy must be provided for in the tribunal's enabling statute. Mandamus: to order the performance of a public duty iv. it finds that the failure of management at all levels to take McKinnon's complaints seriously and/or to properly investigate them amounts to condonation by the corporate respondent. Enforcement power i. Many statutes also provide for quasi-criminal prosecution of persons who disobey tribunal orders. Certiorari: to quash or set aside a decision ii. i. In practice. Although the Board concedes that the complaints only reveal a workplace that remains poisoned when examined collectively. and in consequence of which. i. and cannot direct the tribunal to decide in a particular way. and perhaps not individually in and of themselves. and must pass constitutional scrutiny. a.historically the prerogative writs i. 1. you do not get a new outcome – on judicial review. 41(1)(a) of the HRC must be seen to run to ―the crafting of new orders‖ so as to achieve an otherwise unattainable compliance with the Act and fulfilment of the underlying purpose of the original order itself. it is often combined with an application for certiorari (sending something back while also forcing the original tribunal to reconsider it in a procedurally fair manner). . ii. Concerning the Board's remedial jurisdiction.. (Most review in US SC done by this method) Mandamus (―we command‖) is a writ issued by a superior court to compel a lower court or government agency to perform a duty it is mandated to perform. Remedies on Judicial Review a. McKinnon v. Many enabling statutes set out express lists of the remedies ii. It is an ex post facto remedy. the atmosphere of the Toronto East Detention Centre remains poisoned? b. the order can be enforced in the same manner as a court judgment. Any enforcement powers held by a tribunal must be granted to the tribunal in its enabling statute. the tribunal must make an application in court to enforce any order it makes. in a forwardlooking rather than retrospective. c. Habeas corpus: to order the release of the unlawfully imprisoned b. the best you can get in that sense is a new hearing at the forum of first instance. Once a tribunal has converted its order into a court order. Those directions may only protect against unfair procedures or excess of power. 2.

After having their claims rejected. including the duty of impartiality. or the law that applies to them. and (2) it gives focus to the principal legal issues that arise from those facts. and the Minister was invited to participate in the hearings. indicate that the content of the duty of fairness owed by the Board. the applicants challenged the jurisdiction of the Board to conduct such an exercise. f. Canada (Minister of Citizenship and Immigration) (2005. . Prohibition is used to obtain preemptive relief. (3) The legal notion of bias connotes circumstances that give rise to a belief by a reasonable and informed observer that the decision-maker has been influenced by some extraneous or improper consideration. A tribunal's decision is liable to be set aside for bias if a reasonable person. Parties. used to clarify the law or to declare a private party's rights under a statute. Although the Court cannot identify any single indicator that is on its own sufficient to establish bias. Simplified application procedures – it is sufficient for a party to set out the grounds on which relief is sought and the nature of the relief sought e. and the fact that its decisions affect the Charter rights of claimants. The Minister argued that the use of lead cases does not infringe on the independence of Board decision makers. Geza v.21 d. There are two kinds of declarations: the public law variety. the IRB instituted a procedure through which it attempted to select one of several similar refugee claims that could be used to create a full evidential record for all. would think that the hearing panel was biased and was not acting independently when it rejected the appellants' claims for refugee status. developing policy. Nevertheless. falls at the high end of the continuum of procedural fairness. The purpose of this ―lead case‖ initiative was to enable the board to have one case in which there were informed findings of fact and a relatively thorough analysis of the relevant legal issues.not ex post facto Declaration is a judgment of a court that determines the legal position of the parties. used to declare some government action ultra vires. its adjudicative procedure and functions. who was reasonably informed of the facts and had thought the matter through in a practical manner. These remedies now incorporated into statutes i. A similar test determines whether a tribunal is independent. FCA): Another tribunal practice for garnering consistency. who had considered every aspect of the matter and had thought it through carefully. and thus its procedure should not be confined in a model of due process that draws exclusively on the judicial paradigm and discourages innovation. Prohibition is another special proceeding. Three preliminary considerations may be added to this general proposition: (1) The standard of impartiality expected of a particular administrative decision-maker depends on context and is to be measured by reference to the factors identified in Baker. In this case. it concludes on the basis of the entire factual matrix of the case that a reasonable person. because neither the evidence presented in lead cases nor the decisions reached in them are binding on subsequent panels. (2) The Board is charged with a uniquely difficult mandate of administrative adjudication. or to prevent a non-judicial officer or entity from exercising a power. and members were carefully selected. and addressing efficiency is the use of ―lead cases‖. and because nothing in the concept of a lead case limits the rights of any party to call evidence or conduct their case in a manner appropriate to the requirements of that case. lawyers. The independence of this Board. and the private law variety. procedures designed to increase quality and consistency cannot be adopted at the expense of the duty of each panel to afford to the claimant before it a high degree of impartiality and independence. and also alleged that a perception of bias existed on the part of the Board when the lead case idea was conceived and conducted. and that the motive was to increase the rejection rate of claims by Hungarian Roma by creating a well-reasoned and welldocumented rejection precedent which would be promoted to be followed by other panels of the IRB. would conclude on a balance of probabilities that the decision maker was not impartial. A lead case has two objectives: (1) it permits the IRB to establish a baseline of up-to-date and expert information on country conditions in respect of a country from which there is a sudden shift in the volume or type of refugee claim. i. issued by an appellate court to prevent a lower court from exceeding its jurisdiction.

at one end you've got policy/legislative and the other adjudicative/factfinding  for stage of the process. legal and factual ―precedent‖. The decision in this case does not necessarily mean that the factual conclusions in the lead cases are unreliable. at the other strict Independence ▪ Independence of the adjudicator is also a means of ensuring that the decision-maker is not biased – overlaps w/ reasonable apprehension of bias test. Independence / Impartiality of Decision-Makers:  in Bathurst and in Geza.22 Reasons for the reasonable person's conclusion include the suggestion that one of the panel's two members may have been predisposed towards denying the appellants' claims since he had played a leading role in an exercise that may seem to have been partly motivated by a desire by the CIC and the Board to produce an authoritative. at the other end appointed  in terms of function of the tribunal or body.  Predispose the decision-maker or institution to a particular decision or direction  The source of the bias may be an attitude (Baker). at the other end a hearing  for standard of reasonable apprehension of bias. so these bodies undertake other types of processes to ensure consistency in decision-making  after Geza. or that subsequent decisions which have relied to any extent on the findings in them are thereby vitiated. at one end you've got elected officials. Newfoundland Telephone)  pecuniary interest is another aspect – the court traditionally has been pretty strict about this in the sense that if there is some kind of financial interest in the outcome. or direct pecuniary bias . if non-binding. which would be used to reduce the percentage of positive decisions in claims for refugee status by Hungarian Roma. the IRB abandoned the lead case approach. at one end you've got generous. but has since tried other methods of reaching internal consistency  attitudinal bias is the more straight-forward bias issue  prior involvement with one of the parties can in some cases raise a reasonable apprehension of bias (Mackenzie Pipeline)  there may also be an appearance of antagonism towards one of the parties (Baker. these administrative bodies typically don't have internal hierarchies. it doesn't matter whether it is big or small  In terms of the identity of a decision-maker. at one end you've got investigative.

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