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ADMINISTRATIVE LAW DUNSMUIR: the court decided to dispense with having three standards of review (correctness, reasonableness (simpliciter),

and patent unreasonableness). Instead, the court decided that henceforth there shall be only two standards: correctness and reasonableness. Additionally, the decision to apply a correctness standard will no longer be based on 'jurisdictional' issues. The ruling has consolidated the law relating to standards of judicial review in Canada, and has effectively required a full standard of review analysis to be performed in all current disputes arising from administrative decisions.[6] Dunsmuir does not stand for the proposition that the adequacy of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses one for the reasons and a separate one for the result. It is a more organic exercise the reasons must be read together with the outcome, and serve the purpose of showing whether the result falls within a range of possible outcomes.[7] The Dunsmuir principles were subsequently clarified in Canada (Citizenship and Immigration) v. Khosa,[8] where Binnie J. commented, Dunsmuir teaches that judicial review should be less concerned with the formulation of different standards of review and more focussed on substance, particularly on the nature of the issue that was before the administrative tribunal under review.

Forum resolved by statute Grounds procedural fairness and substantive unfairness Remedy cert (squash decision), prohibition (tribunal not to proceed), mandamus (performance of a public duty), habeas corpus (release of unlawfully imprisoned) Admin appeals: absent express statutory authority a tribunal cannot reconsider or alter a final decision made within its jurisdiction. Mechanism: internal admin or appellate bodies or to courts. Scope limited to what statute expressly provides. Judicial review: discretionary. Court can investigate a tribunals procedural fairness or alleged bias of its members. Only available to check exec action and therefore only public bodies can be subject.

Must be part of the machinery of govt (Martineau v Matsqui) Public interest standing if not party Deadlines for review can be prescribed Alternate remedies: must exhaust all other adequate means of recourse

Canada Trust v Ontario HRC: OK to go straight to court where trust is discriminatory on its face (only available to Christians of UK descent). Other factors: premature, moot, impossibility, harmless error, unclean hands, dely and acquiescence. The Supreme Court has held in Reza v. Canada, [1994] 2 S.C.R. 394, at page 405, that while both the provincial superior courts and the Federal Court have jurisdiction to entertain a challenge to the constitutionality of provisions of the Immigration Act, it is appropriate for the provincial court to decline jurisdiction since Parliament has "created a comprehensive scheme of review in immigration matters and the Federal Court was an effective and appropriate forum." Section 96 courts: Other than the Supreme Court, the Canadian court system is divided into two classes of courts: superior courts of general jurisdiction, and courts of limited jurisdiction, sometimes referred to as inferior courts. The superior courts, created and maintained by the provinces, are divided into superior courts of original jurisdiction and superior courts of appeal. These courts are sometimes also referred to as "Section 96" courts, in reference to s. 96 of the Constitution Act, 1867, which grants the federal government the power to appoint the judges of these courts. As courts of general jurisdiction, the provincial superior courts of original jurisdiction have jurisdiction over all matters, under both federal and provincial law, unless the matter has been assigned to some other court or administrative agency by a statute passed by the appropriate legislative body. The superior courts of original jurisdiction have an extensive civil jurisdiction, under both federal and provincial laws. Under the Criminal Code, a federal statute, they have jurisdiction over the most serious criminal offences, such as murder. They also hear appeals from the Provincial Courts in criminal matters and some civil matters. A further appeal normally lies to superior court of appeal, the highest court in each province. How to determine whether an admin tribunal is acting like a s96 court: - historical: is impugned power exercised by court at time of confederation - is power judicial, i.e. private dispute between parties - has power in the judicial setting changes its character sufficiently to negate broad conformity with superior, district or county jurisdiction? PROCEDURAL FAIRNESS Applies to decisions made under legislation, not legislation itself. Cabinet and ministerial decisions are not subject to the legislative exemption per se, but easy to characterize cabinet and ministerial decisions as legislative and as a result they will be exempted.

Canada v Inuit Tapirisat: 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. Homex: instance where a passage of a municipal bylaw was subject to the duty of fairness because motivation was a specific dispute. Allege a breach of duty of procedural fairness, ask: what is the threshold for application of the duty and how is the content of the duty determined? Nicholson v Haldiman: The decision was a landmark reform of administrative law, in which the Court significantly increased the degree of court intervention on procedural grounds. The Court stated that procedural fairness exists on a continuum and that parties are entitled to a certain degree of it based on the setting and their circumstances. Prior to this decision, procedural fairness only applied to tribunals that were classified as "judicial" or "quasijudicial". The content of the general "duty of fairness" was clarified by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), where the Court set out a test for determining when certain procedural protections are required. Knight v Indian Head School Division: The Court created a threshold test to determine whether an administrative process invoked a common law duty of fairness based on the nature of the decision, relationship between the parties, and the effect on the individual claimant. 1. Nature of the decision to be made by the administrative body: ( (a) Administrative vs. Legislative use of power Administrative powers attract procedural fairness while legislative powers do not ( (b) Final decision maker Preliminary or interlocutory decisions dont invoke procedural fairness 2 2. Relationship existing between that body and the individual; and Exercise of power is pursuant to statute (or prerogative) (executive action) 3 3. Effect of that decision on the individual's rights (privileges / interests) Low threshold requiring only that applicant have an interest and that it be impacted If all of these criteria are met then procedural fairness is triggered and the court will decide what procedures the applicant is due. NOTE: Under Dunsmuir no longer possible for public office holders to be restored to

their positions since that remedy is not available for breach of contract. Public employment governed by contract should be resolved by contract. Baker v Canada: The issue was what standard of procedural fairness should be applied when considering the judicial review of the waiver of the requirement that applications for permanent residence be filed from abroad. SCC held that procedural fairness required the decision-maker to consider the human rights of Baker's children. Five factors relevant in determining general level of procedural fairness: 1. The nature of the decision. It asks whether the decision is more for the purpose of resolving dispute, protecting individual rights or some other judicial purpose rather t than a decision that balances many interests and primarily considers policy. 2. The importance of the interest at stake in the decision relative to other interests. T 3. The statutory scheme under which the decision is made. This primarily focuses on whether the decision is final and conclusive or if whether it is preliminary or if t there is a right of appeal. 4. The legitimate expectations of the parties based on whether there were any representations by word or conduct that lead the parties to believe there was some type of procedural protection. Part of doctrine of fairness. See reference re Canada Assistance Plan substantive rights are not created by legitimate expectations. 5. The procedural choices available to the ADM. The ADM must be accorded some deference to its practices and policies necessary to accomplish its mandate. Scope of procedure: - notice that the decision is going to be made - disclosure of the information on which the tribunal will base its decision - opportunity to participate or make views known - right to counsel - oral or written reasons for decision INDEPENDENCE, IMPARTIALITY AND BIAS Right to be heard and right to an independent and impartial hearing. Tribunals dont need to meet the same degree of independence as courts do. Judges need tenure, financial security and administrative independence. Ocean Port Hotel v British Columbia: the Court held that there is a fundamental distinction between administrative tribunals and courts. That fundamental distinction rests on the fact that administrative tribunals are created to implement government policy. While this may still require tribunals to perform quasi-judicial decisions, their primary function is implementing government policy, and so governments are to be given wide latitude in determining how these tribunals function. While tribunals may sometimes attract Chartertype principles and protections, as a general rule they do not. Because the statute in the Ocean Hotal case clearly required the members of the Appeal Board to serve at pleasure,

the Court could not itself impose greater protection, and therefore greater independence. Financial security concerns in admin context are not as great. Adjudicative independence: - only person who hears the case can decide it (audi alteram partem) - consultation with wider group ok on law but not on facts - Ellis-Don v Ontario - Ratio: The mere fact that litigated issues are discussed by a full board does not amount to a breach of the audi alteram partem rule. - IWA v Consolidated-Bathurst: The Supreme Court of Canada held that full board meetings of the Ontario Labour Relations Board to discuss matters of policy in relation to a case did not violate the principles of natural justice. - The Supreme Court of Canada re-affirmed its decision in Tremblay v. Quebec (Commission des affaires sociales)[9] and Ellis-Don Ltd. v. Ontario (Labour Relations Board).[10] They further clarified that meetings involving members not on the panel hearing the case could constitute inappropriate influence if the applicant could show that there was systemic pressure acting on the panels. Impartiality: no one shall just in her own cause. Apprehension of bias. In Baker the officers notes demonstrated a reasonable apprehension of bias. Multifunctionality: 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 quasi-constitutional statute. Bovbel v Canada: tribunal doesnt offend justice by taking advice re legal matters. Khan v College of Physicians: counsel plays significant role. Court said was ok. 2427-3174 Quebec v Quebec: role of prosecutor and adjudicator cant overlap. Manning a case involving the Ontario Securities Commission where the commissions chair was disqualified for issuing an ultra vires policy statement, which had the effect of prejudging the companies activities that were the subject of the hearing. The statement was not however, sufficient to disqualify the whole commission on the basis of corporate tainting especially having regard to the fact that members at the time of the hearing were new appointees. CHARTER AND ADMINISTRATIVE LAW To access section 7 complainants must first show life, liberty or security interests are impaired by the relevant decision (unlike Knight 3-prong test). Tribunals may perform charter review. No limitation to review Crevier v Quebec statute said decisions were final. Court said thats not ok.

Singh/Suresh: principles of fundamental justice include procedural fairness. Principle of fundamental justice become procedural fairness in the Charter context. Some Ps go to section 7 because the one big thing you can get under the Charter is the ability to invalidate legislation, which you cant get otherwise. Substance: look to Oakes for admin review (Charter allows reasonable limitations on rights and freedoms through legislation if it can be demonstrably justified in a free and democratic society. Singh: section 7 of Charter applies to non-citizens. Adopting admin 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. Suresh: court upheld provision in Immigration Act that permitted deportation of noncitizens who were found to be a danger to the security of Canada and held P did not have a right to an oral hearing, but did have a right to: - disclosure of materials on which decision based - right to written reply - responsive reasons for decision Charkaoui: security certificates issued. Ex parte and in camera hearings are held where judge believes disclosure of evidence could undermine national security. If certificate determined reasonable no appeal or opportunity for further judicial review available. Section 7 engaged: liberty (persons subject to security certs face detention pending deportation), security (removal may be to a place where life/freedom threatened), no fundamental justice because no fair hearing. Court suggested an amicus curiae be appointed to represent the named person during the in camera proceedings. Blencoe v BC: long delay in prosecuting sexual harassment ruined life of accused. Court said section 7 not engaged because state hadnt interfered with life choices. The process of analyzing section 7 has two steps. First, it must be determined if there has been a violation of life, liberty, or security of person. Second, the violation must be shown to be contrary to the principles of fundamental justice. Bastarache examined the meaning of "liberty" and "security of person". "Liberty", he argues, is related to personal autonomy. It is "engaged where state compulsions or prohibitions affect important and fundamental life choices." "Security of person" concerns psychological harm. It must be established that the state caused actual psychological harm, and that there have been serious injuries. Considering Blencoe's claims, Bastarache found that there was no violation of liberty as the delay did not affect any fundamental life choices. There was also no violation of security of

person as the harm was caused by the accusations not by the delay itself, which did not have much effect one way or another. Administrative delay The issue identified by Bastarache was "whether the delay in this case could amount to a denial of natural justice even where the respondent's ability to have a fair hearing has not been compromised." He dismissed the possibility that the trial was not fair as he saw no evidence to suggest that Blencoe was not able to provide a full answer and defence. Bastarache considered whether the delay violated natural justice by causing serious harm to Blencoe. He found that the harm only amounted to personal hardship and was not serious. STANDARD OF REVIEW DUNSMUIR standard is no longer pragmatic and functional but now standard of review analysis. Two-step process: 1. if the standard has already been determined under case law then that predetermined standard will apply. 2. If not, court must conduct a contextual standard of review analysis, considering four factors: a. presence of a privative class (strong indication of reasonable review) b. purpose of the tribunal as determined by interpretation of its enabling legislation c. nature of the question at issue i. a question of law tat is of central important to the legal system and beyond the specialized expertise of the tribunal ii. questions of fact reasonableness iii. constitutional questions correctness iv. questions of jurisdiction where tribunal must explicitly determine whether its statutory grant of power gives it authority to decide a particular matter d. expertise of the tribunal Baker v Canada: failure to give serious weight and consideration to the interests of the children constitutes an unreasonable exercise of discretion. Canada v Khosa: Applying the reasonableness standard from Dunsmuir v. New Brunswick, Binnie J. held that courts should be deferential to the IAD decisions and should not substitute its own findings. In the result, he found that the IAD decision was reasonable and restored its order.