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NCA Canadian Administrative Law Outline

January 29, 2015 - Toronto

Setting the Stage


Sources of Procedural Obligations
Fairness: Sources and Thresholds
Procedural Obligation Triggers (Knight Three-Prong and the Concept of Legitimate
Expectation)
The Modern Common Law Doctrine: Dimensions and Limitations of Procedural Fairness
Elaborations of the Modern Doctrine
The Common Law Threshold
Decisions Affecting Rights, Privileges, or Interests
Inspections and Recommendations
Legitimate Expectations
Procedural Obligation Triggers (Legislative Decisions & Emergencies)
Decisions of a Legislative and a General Nature
Cabinet and Cabinet Appeals
Bylaws and Rulemaking
Policy Making
Regulated Industries and Producers
Individualized Decision Making Based on Exercise of Broad Discretionary Powers
Emergencies
Procedural Obligation Triggers (Charter & Bill of Rights)
The Charter and the Bill of Rights: Issues of General Applicability
The Bills of Rights: Specific Procedural Thresholds
Section 7 of the Charter: Specific Procedural Thresholds
Section 7 of the Charter: Life, Liberty, and Security of the Person
Content of Procedural Obligations (Right to be Heard)
The Role of Judicial Review
The Level and Choice of Procedures
Specific Content Issues
Pre-Hearing Issues
Notice
Discovery
Delay
The Actual Hearing
Oral Hearings
Open Hearings
Right to Counsel
Disclosure and Official Notice
Access to Information Statutes
Crown or Executive Privilege
Other Common Law Evidentiary Privileges
Access to Agency Information

Identities of Sources of Information


Commercially Sensitive Information
Staff Studies
Admissibility of Evidence
Cross-Examination
Post-Hearing Issues
The Content of the Duty to Give Reasons
Effect of Breach of Duty To Give Reasons
Content of Procedural Obligations (Unbiased Decision-Maker)
Bias: The General Test
Antagonism During the Hearing
Association between Party and Decision-Maker
Involvement of Decision-Maker in Earlier Stage of Process
Statutory Authorization
Attitudinal Bias
Pecuniary and Other Material Interests
Variations in Standards
Independence
Content of Procedural Obligations (Issues arising from institutional decision-making)
Delegation
Deciding Without Hearing
Delegating the Duty to Hear
Consultations Among Agency Members
Agency Counsel
At the Hearing
The Preparation of Reasons
Reasons Review
Agency Guidelines
Backdrop to the Standard of Review Analysis
General Information
Privative Clauses
Constitutional Limitation of Privative Clauses
Statutory Removal of Judicial Review
The Preliminary Question Doctrine
Wrong Questions and Irrelevant Considerations
Origins of the Standard of Review Analysis CUPE (1979)
After CUPE: Evolution of the Pragmatic and Functional Approach
Evolution of the Standard of Review Analysis
The Decisions in Pezim and Southam
Applying the Standard of Review
Abuse of discretion as a ground of Judicial Review
The Current Test
Lingering Questions After Dunsmuir
Reasonableness Review

The Reasonableness of Giving Reasons


Concept of Jurisdictional Error
Venue and Basic Procedure for Judicial Review
Standing
Standing in Judicial Review Proceedings
Public Interest Standing
Remedies
Forms of Permanent Relief
Statutory Appeals
Judicial Review
Collateral Attack
Direct Attack
Effect of Certiorari Relief
Limits on Mandamus Relief
Interim and Interlocutory Relief and Stays of Proceedings
Stays of the Administrative Process
The Discretion of the Court
Alternative Remedies
Statutory Appeals
Statutory Appeal to the Courts
Alternative Methods of Establishing Rights or Enforcing Observance of Statutes and
Orders
Prematurity
Mootness
Delay
Misconduct of Applicant
Waiver
Balance of Convenience
Money Remedies
Moneys Mistakenly Paid To and Benefits Mistakenly Conferred on Statutory Authorities
Money Remedies Through Judicial Review
Tort Liability for Unlawful Administrative Action or Inaction
Abuse of Power by Statutory Authorities
How to Tackle an Administrative Law Problem Question

Subject Matter
1.

Setting the Stage

CB Chapter 1; S&F Chapter 1

Procedural Fairness
Substantive Constraints
Challenging Administrative Decisions and Remedies of Judicial Review

Procedural Fairness Materials


2.

Sources of Procedural Obligations

CB 77-85; 278-285

Fairness: Sources and Thresholds


Enabling Legislation (i.e. statute sets out the procedural expectations). See
Singh v. Canada
Subordinate Legislation (i.e. regulations and rules) note that there is a risk that
persons making the rules and regulations dont meet expectations or wishes of
legislature. There are mechanisms of accountability and scrutiny to ensure this doesnt
happen:
Legislative Scrutiny - regulations must be approved by legislature
once approved
Public Consultation when drafting regs/rules
Judicial review e.g. compliance with Charter or other
constitutional instruments, ultra vires, compliance with common law (in absence
of express language to the contrary).
Policies and Guidelines soft law set out by the relevant administrative
decisionmaker.
Procedural Statutes set out coming procedural standards. E.g. Alberta
Administrative Procedures and Jurisdiction Act or BC Administrative Tribunals Act
Common Law Procedural Fairness a party affected by the administrative
decision-maker is entitled to be heard by that administrative decision-maker in an
impartial and independent hearing. Derived from rules of natural justice which imposed
on tribunals exercising judicial or quasi-judicial functions, trial-type procedures.
Concepts of audi alteram partem (the decision maker must hear the other side) and
nemo judex in sua causa (decisionmaker must not be a judge in his own cause). Today,
it applies to a much broader spectrum of decisions.
Cooper v. Board of Works for Wandsworth District (1863) Builder
had to give 7 days notice of intention to build under the statute and if not, the
Board of Works had the right to tear down his building. Court ruled that he
needed opportunity to be heard particularly as his right was property right.
After this, English Courts willingness to impose hearing requirements on
decision-makers became contingent on the nature of decision making power judicial or
quasi-judicial or administrative decisions. This became untenable and then in 19641970 courts started reviewing administrative decisions as well.

Nicholson v. Haldimand-Norfolk Regional Police Commissioner (1979) SCC


Statute said that certain procedures must be followed before firing a constable of over 18
months. In this case the person had been constable for 15 months and was no
procedures were followed he was discharged without being given an opportunity to
make submissions. Court ruled that just because he wasnt entitled to the notice and
hearing required under statute, that didnt mean he had no protection at all. He must be
treated fairly, not arbitrarily. He should have been told why his services werent required
and given an opportunity to respond. Then, after hearing his response, the Board can
decide on what action to take (in good faith).
Before this decision, the duty to act judicially was thought to apply only to
tribunals rendering decisions of a judicial or quasi-judicial nature, to the exclusion of
those of an administrative nature. Nicholson has made the distinction less important
since the duty to act fairly and duty to act judicially have their roots in the same
principles of natural justice.
Expansion of the duty of fairness to areas of administrative decisionmaking (such
as prisoners rights) that had previously escaped judicial scrutiny for compliance with
rules of natural justice.
Transferred from common law system of no procedural impediment outside
judicial or quasi-judicial decision to requiring a general duty of procedural fairness to
administrative decisions.

3. Procedural Obligation Triggers (Knight Three-Prong


and the Concept of Legitimate Expectation)
CB 85-105; 109-113; 132-156; 157-176
The Modern Common Law Doctrine: Dimensions and Limitations of
Procedural Fairness

Nicholson v. Haldimand-Norfolk (Regional) Police Commissioners

Elaborations of the Modern Doctrine

Where is a given procedural obligation triggered?


If the procedural rule comes from legislation, the answer to the
trigger question is in the legislation itself.
If the procedural rule comes from general statutes about
procedure, they contain their own triggers - be careful to read that legislation if
it applies to your decisionmaker. (Make sure the statute does apply to your
decision-maker. Also check if a provincial general procedural statute can ever
apply to a federal administrative decision-maker.)
Two triggers for common law procedural fairness:
Knight v. Indian Head School Division (three-prong) trigger; and
Legitimate expectation
Where the requirements of these triggers are met, then procedural fairness is
owed by the administrative decision-maker
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Pay attention to some of the exceptions and constraints on the triggers as well.
So, for legitimate expectation, note the courts views on procedural versus substantive
promises. For the Knight trigger, the readings talk about nal versus preliminary
decisions (and the related issue of investigations and recommendations). Note also
exceptions to this exception See Grange J application of test in Abel
Knight v. Indian Head School Division No. 19 (1990)
Leading decision of the Supreme Court of Canada on procedural fairness in
Canadian administrative law. 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.
Ronald Gary Knight was dismissed as superintendent of a school board. His
position was held at pleasure. His dismissal was not for personal reasons, but he
claimed procedural fairness should apply and a hearing should have been held.
THREE PRONG TEST per LHeureaux-Gube J (for the majority of the Supreme
Court):
1. Nature of the decision to be made by the administrative body:
a. Administrative v. 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. Relationship existing between that body and the individual:
The body is exercising a power stemming from a statute or
prerogative power.
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. But note that if the statute specifically
excludes procedural fairness, then the court has no choice but to follow the legislatures
intent.
Basic requirements of the duty to act fairly is to give reasons for dismissal and a
hearing. Note that every administrative body is master of its own procedure and
therefore you must allow administrative bodies to work out a system that is flexible,
adapted to their needs and fair NO need to make it a court process.
Note Dunsmuir v. New Brunswick changed the law re: procedural fairness
applicable to public office holders. Where a public office holders employment is
governed by an employment contract, disputes re: dismissal must be resolved according
to terms of the contract and any applicable statutes and regulations; i.e., a public
authority that dismisses an employee pursuant to an employment contract is not subject
to an additional public law duty of fairness. Remedies of employee are only contractual.

Reasons:
Hard to determine in practice if a position had a strong enough
statutory flavour
Public law remedy of overturning the dismissal and re-instating
employee (who is entitled to accrued salary and benefits from time of dismissal to
courts order of judicial review) is less principled than private law remedy of
proper notice and pay in lieu of notice because the amount of relief depends not
on employees situation but length of time to resolve the judicial application; i.e.,
common law entitlements of notice period, salary in lieu and wrongful dismissal
claim provide enough protection.
Dunsmuir noted that the public law duty of fairness can still apply:
Where the public employee is not protected by an employment
contract
Where the office-holder is expressly subject to summary dismissal
Where the duty of fairness flows by necessary implication from the
statutory power governing the employment relationship e.g. statute provides for
notice to be given to employee of a motion to dismiss.

The Common Law Threshold


The question, whether there was any significance distinctions between the
concepts of judicial and administrative functions, was one that came to be explored by
the Supreme Court shortly after Nicholson.
Martineau v. Matsqui Inmate Disciplinary Board expansion of certiorari to all procedural
requirements
Martineau and Butters, inmates, were disciplined, and alleged that they were not
given a hearing. They made an application for review in the Federal Court of Appeal,
which was dismissed because the court did not have jurisdiction. They also made an
application for certiorari in the Federal Court Trial Division, which has jurisdiction to
grant the usual remedies for review. Their application was based on the fairness
requirement.
The respondents argued that certiorari can be used to review only judicial or
quasi-judicial functions.
The respondents argument was rejected by the Supreme Court, which appeared
to expand the limits of certiorari to include enforcement of procedural requirements
generally. Dickson gave the opinion of the court.
Dickson held that the fact that a decision-maker does not have a duty to act
judicially, with observance of formal procedure which that characterization entails, does
not mean that there may not be a duty to act fairly which involves importing something
less than the full panoply of conventional natural justice rules.
An inmate disciplinary board is not a court. It is a tribunal which has to decide
rights after hearing evidence. It is, nonetheless, subject to a duty of fairness and a
person aggrieved is entitled to seek relief on an application for certiorari. However, not
every breach of prison rules of procedure will bring intervention by the courts.
Therefore, the question is not whether there has been a breach of prison rules, but

whether there has been a breach of the duty to act fairly in all the circumstances.
The rules are of some importance in determining this latter question.
Dickson argued that it is wrong to regard natural justice and fairness as distinct
and separate standards and to seek to define the procedural content of each. Fairness
involves compliance with only some of the principles of natural justice. What the content
of the principles of natural justice and fairness is, and their application to the individual
case, will vary according to the circumstances of each.
Cardinal v. Director of Kent Institution adoption of new categories legislation & rightsprivileges
It was held by the Supreme Court that a hearing was required for a decision by
prison officials to keep a prisoner dissociated for security reasons.
In so holding, Justice Le Dain stressed the serious effect on the prisoner and
stated that:
The court has affirmed that there is, as a general common law
principle, a duty of procedural fairness lying in every public authority
making an administrative decision which is not of a legislative nature and
which affects the rights, privileges or interests of an individual The denial
of a right to a fair hearing must always render a decision invalid, whether or not it
may appear to a reviewing court that the hearing would likely have resulted in a
different decision It is not for the court to deny that right and sense of justice on
the basis of speculation as to what the result might have been had there been a
hearing.
Analysis: Le Dains formulation of the circumstances in which the duty of
procedural fairness arises does contain the genesis of a new threshold, one in which the
dividing lines are expressed in terms of legislative and all other functions are
predicated also on whether the decision is one that affects rights, privileges or
interests.

Decisions Affecting Rights, Privileges, or Interests


When Justice Le Dain spoke in Cardinal about the existence of a duty of fairness
whenever rights, privileges or interests were at stake, it is quite possible that he was
doing so not for the purposes of setting up a test in which rights, privileges or interests
stood in contrast to some less form of claim. Rather, that it was no longer necessary to
establish that a right was affected but that mere privileges and interests
qualified as well provided the decision in question was not a general or legislative one.
Re Webb and Ontario Housing Corporation is an important judgment for a
number of reasons, including its treatment of the intersection between procedural
fairness claims and the sliding scale in procedural fairness claims depending on the
nature of the interest at stake.
Even if the threshold no longer depends on a distinction between rights on
the one hand and privileges and mere interests on the other, the extent of the
procedures to be accorded clearly can.

More particularly, however, Webb is included at this juncture for a point about the
distinctions between an applicant for accommodation in government-subsidized housing
and an existing resident in such housing. This suggests a continuing relevance for
threshold purposes between benefit holders and those seeking such benefits.
Re Webb and Ontario Housing Corporation [1978] - duty of procedural fairness even when
revocation of benefit is in issue
Webb was a low income tenant in a building owned by Ontario Housing
Corporation and managed by Meridian Property Management for OHC. After 3 years,
Meridian recommended terminating the lease because of problems caused by Webbs
kids. OHC officials and its board of directors agreed and an application for termination
of her lease was brought under Landlord and Tenant Act. Webb applied for a review of
the decision.
Three Arguments:
Statutory Powers Procedure Act 1971 applies to a meeting of the
directors of OHC when considering terminating a lease;
If the Act doesnt apply, rules of natural justice apply as they were
conducting a judicial or quasi judicial hearing; and
Duty to act fairly as Webb had a legitimate expectation she
would be treated fairly and this expectation was not met.
Judge held directors were not a tribunal exercising a statutory power of decision
under the Ontario Housing Corporation Act where it was required to give the parties an
opportunity for a hearing. Determination to terminate tenancy does not fall within
Statutory Powers Procedure Act 1971. He also dismissed argument (b).
Case is important because it distinguishes between an applicant for subsidized
housing and someone already in subsidized housing. Decision by OHC to grant Webb
subsidized housing was not one that could be subject to procedural fairness. Once
Webb became a tenant, she qualified for and acquired a benefit. What is at issue in
these cases is what it is appropriate to require of a particular authority in the way of
procedures given the nature of the authority, the nature of its power and the
consequences of the exercise of the power on the individual affected and the nature of
the relationship between the authority and the individuals affected. Judge MacKinnon
said that in his opinion OHC, in exercising power of termination and depriving Webb of
benefit of lease was, in the circumstances, required to treat her fairly by telling her of
case against her/complaints and giving her an opportunity to answer. Serious adverse
effect/danger of losing an important benefit with no opportunity to answer the case
against her would be unfair.
ON FACTS SHE WAS TREATED FAIRLY PLENTY OF WARNINGS.
HOLDERS OF STATE ASSISTANCE ENTITLED TO PROCEDURAL FAIRNESS
BEFORE IT IS CUT OFF.
Hutfield v. Board of Fort Saskatchewan General Hospital District No. 98 [1986] - procedural
fairness due to license applicant if circumstances necessitate them
Facts: Dr. David Hutfield initially requested hospital privileges at the Fort
Saskatchewan General Hospital in March 1984. The Hospitals Act and the applicable by-

laws required the Hospital to ask the College of Physicians and Surgeons to appraise
the applicant's qualifications, then required the Chief of Staff to prepare a written report
with its recommendations to the Board of Governors who then decide whether to grant
or deny the privileges. In October 1984, Dr. Hutfield's first application was denied. In
December 1985, Dr. Hutfield re-applied to the Hospital for privileges. Although the
Credentials Committee met, the College of Physicians and Surgeons was not asked to
do a new appraisal because the Chief of Staff believed that the previous positive
recommendations of the College were recent enough. Dr. Hutfield's solicitor requested
notice of the meeting of the Board so that he could make personal representations;
however, he was not given notice of the hearing, and the Board denied Dr. Hutfield's
second application. Although Dr. Hutfield asked for reasons to be given for this decision,
the Hospital declined to provide them. As a result, Dr. Hutfield applied for certiorari to
quash the decision and mandamus to compel the Hospital to grant him privileges.
Reasoning: McDonald finds there are very few decisions granting certiorari or
finding a duty to act fairly in the granting of a right/privilege in the first place (see e.g.
Webb and Ontario Housing Corporation (Re)) absent some special circumstance. He
reviews some English caselaw and finds examples where judicial review was available
based on a "legitimate expectation" of obtaining a right/privilege, as well as several
cases where there was no legitimate expectation but certiorari was still available. Based
on the caselaw he concludes that the distinction between the expected standards of
procedural fairness in granting a right and extinguishing it is not founded in principle but
is rather a historical accident based on the following:
1. It is not only rights but "interests" that the courts will protect;
2. Certiorari is available not only where there is a duty to act
judicially but also where there is a duty to act fairly;
3. Where there is a duty to act fairly, the content of that duty is factdependent;
4. The expansion of judicial review and procedural fairness based on
"legitimate expectation" and "slur" do not reflect a principle which can withstand
scrutiny in the light of the object of judicial review.
Applying this to the case at bar, McDonald found that while the Board had no
duty to grant hospital privileges to Dr. Hutfield (even if he was qualified), there was no
doubt that his professional interests would be affected by the decision. As a result,
certiorari was available to him. Additionally, the Board was under a duty to give reasons.
Ratio: If the decision of an administrative decision maker will extinguish or affect
a right or interest of a person when that persons rights or interests are being considered
and decided upon in a way that is final (or final subject to appeal), they must adhere to
procedural standards.
The precise nature of the duty/standard due will depend upon the
nature and extent of the right or interest.
A failure to adhere to the appropriate standard will attract
quashing by certiorari and if necessary, an order in mandamus.

Inspections and Recommendations

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The duty of fairness applies to decisions, meaning final dispositions of a matter, and will rarely
apply to investigations or advisory processes that do not have any consequences
Knight: preliminary decisions will receive less procedural fairness than final
decisions
Re Abel: however, investigations and advisory processes may have a
considerable impact on affected persons, especially when they are conducted in public,
so if a preliminary decision has a great impact on the final decision, then procedural
fairness applies
Re Abel (1979 Ont. Div. Ct) (the "even though you claim to be an 'advisory board', I deserve
procedural fairness because your refusal to disclose my psychological reports before the Board
denies my right to know the case I have to meet" case)
To determine the content of procedural fairness for interim decisions, look at:
Degree of proximity between preliminary and final decision
Here, the preliminary decision was Abel's only
chance at getting a positive final decision by the Lieutenant G-C
Degree of harm faced by the applicant
Here, a denial of procedural fairness resulted in
imprisonment and a deprivation of liberty, so big time harm
Dairy Producers' Co-op v. Saskatchewan (1994 Sask. QB) (the "even though you're at the initial
investigative stage of a sexual harassment complaint, we should full disclosure of the complaint
during the investigation because settlement negotiations failed" case)
While procedural fairness requires that the applicant (1) receive notice of the
substance of the case against him, and (2) be given the opportunity to respond, these
requirements only apply to determinative stages where such a duty exists
Here, the original investigation and the settlement negotiations had no duty of
procedural fairness imposed on both because there was little degree of proximity
between their processes and the Human Right Commission's final decision
Irvine v. Canada (1987 SCC) (the "I didn't get procedural fairness in my antitrust matter because
the investigator who wrote a report to the Board as to whether to have a full hearing and
prosecution didn't give me any notice or an opportunity to be heard" case)
Here, there were two preliminary stages, both of which didn't attract any degree
of procedural fairness:
Step 1 Information Gathering
Not final and not public, as the investigator only
gathers facts for the Minister
Step 2 Information Processing
Commission processes info gleaned by Director via
Hearing Officer, but while they can make recommendations to Minister on
whether to prosecute, neither the Director or Commission can actually
prosecute for unfair trade practices
Therefore, greater procedural rights at the full-blown inquiry can offset any
hardship suffered by lesser procedural rights at early stages of the process, as courts
don't want to unduly burden law enforcement with judicial processes
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Legitimate Expectations
In certain circumstances, procedures will be required by reason of expectations
generated in an affected person and not be entirely contingent on a detached analysis of
the statutory power in question.
To the extent that entitlements to procedural fairness are argued to depend on
the circumstances of particular exercises of a statutory power, theories of a forgetful or
an impliedly authorizing legislation become even more stretched than they normally are.
In such contexts, it is rather more difficult to infer from legislative silence that there has
been an implicit delegation to the courts of the task of selecting those occasions on
which the decision maker owes obligations of procedural fairness to affected persons on
those where no such entitlement arises.
In the English case of Schmidt v. Secretary of State for Home Affairs, Lord
Denning made the following statement:
The speeches in Ridge show that an administrative body may, in
a proper case, be bound to give a person who is affected by their decision an
opportunity of making representations. It all depends on whether he has some
right or interest, or, I would add, some legitimate expectation of which it would
not be fair to deprive him without hearing what he had to say.
Initially, the concept was on that was treated as just another means of expressing
the notion that the applicants stake in the outcome was on that indicated the need for
procedural fairness. However, short after his judgment in Schmidt, Denning gave the
concept a rather different content.
It may be established by way of:
An expectation of a hearing arising out of express representations;
A practice of holding such hearings; or
A combination of the two.
The doctrine has been acknowledged in the Canadian context by the Supreme
Court in four cases, though in each case the court held that the grounds for successful
invocation of the doctrine had not been made out. As a consequence of the lack of an
example of a positive application of the doctrine, there main many doubts as to the
precise reach of the Canadian version.
Reference re Canada Assistance Plan [1991] - court established two principles in this case (1)
doctrine of legitimate expectations does not give rise to substantive rights, and (2) doctrine
cannot be applied to a legislative body in its statutory-making function
Furey v. Roman Catholic School Board for Conception Bay Centre [1991] - establishes two
principles: (1) doctrine of legitimate expectation can only be exercised by those who know of the
previous practice or were aware of the procedural safeguard promised by the agency; and (2) in
deciding to close a single school (thereby making it a specific, individual-like decision), the
power being exercised, while technically administrative/legislative, is in effect adjudicative
because of its specific nature, but where decision to close affects entire area or district, decision
is administrative/legislative in nature

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A school was closed without any notice and parents go to court saying that
guidelines were not followed, that they were not given public notice. Court said that,
since the board in the past had used the guidelines for school closing decisions, they
should apply. On appeal, decision was reversed since court found there was no reliance
(affidavits reviewed by court did not show evidence that the parents believe that past
practice would be followed in this instance). Where an official guarantees an outcome
rather than a procedure, legitimate expectation would not apply: legitimate expectation
creates procedural, not substantive rights.
Mount Sinai Hospital v. Qubec [2001] - (the "you promised to grant us a proper licence if we
moved neighbourhoods" case)
The doctrine of legitimate expectations looks at the conduct of the public
authority in the exercise of that power including established practices, conduct, or
representations that can be characterized as clear, unambiguous, and unqualified, and
the expectations can't conflict with the authority's enabling statute
Binnie J. makes a distinction between:
Procedural fairness:
Driven by Baker factors, such as nature of the
interest, nature of the statutory scheme, etc
Legitimate expectations:
Only applies to procedure based on the course of
dealings, without guaranteeing any substantial outcome
Must look at whether the gov't/agency made
promises and whether it would be unfair to renege on normal promises
Here, while the hospital had a right to be heard according to procedural fairness,
they didn't have an actual right to get the proper licence because legitimate expectations
doesn't guarantee a substantial outcome
Requirements for Legitimate Expectation:
1. A promise or representation from a delegate (an expectation of a hearing arising
out of express representations or a practice of holding such hearings or a combination of
the two);
2. To proceed in a certain fashion; and
3. (possibly) Resulting in detriment when promise is broken to a person who relied
on the promise
Does not apply to:
1. Legislative decision
2. Promises that conflict with statutory duties

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4. Procedural Obligation Triggers (Legislative Decisions &


Emergencies)
CB 113-132; 156-157

Common law procedural fairness rules may also fail to be triggered where there are
emergencies, and also where a decision is said to be of a legislative nature. Be wary of the
latter; it is a very ambiguous concept. In its clearest form, it means no procedural fairness
where an administrative decision-maker is introducing, e.g., a regulation (that is, a form of
delegated legislation). But a legislative decision means more than this boiled down to its
essence, it can be a decision that is sufciently general, and not particular to or focused on a
reasonably narrow subset of persons. Exactly what this means you need to contemplate in
looking at the readings. And you need to appreciate that the general rule no procedural
fairness where decision is legislative in nature is itself subject to exceptions.
Asks the Who and the What
Who? Is decision maker is the Minister or a legislative body?
What? Is the question posed legislative in nature or is it policy?

Decisions of a Legislative and a General Nature


The notion in Knight that legislative functions were excluded from the ambit of
any implied procedural requirement finds its genesis in the judgment of Judge Megarry
in Bates v. Lord Hailsham of Marylebone.
Prior to Knight, however, in the case of Martineau, Dickson said:
A purely ministerial decision, on broad grounds of public policy,
will typically afford the individual no procedural protection, and any attack upon
such a decision will have to be founded upon abuse of discretion. Similarly,
public bodies exercising legislative functions may not be amenable to judicial
supervision.
What counts as a legislative function for these purposes? What are the badges
of a purely ministerial decision, on broad grounds of public policy?

Cabinet and Cabinet Appeals


Canada (Attorney General) v. Inuit Tapirisat of Canada [1980] Cabinet decisions provide little
to no protection
Legislative action, such as a decision being made by the governor-in-counsel, is
not subject to a duty of procedural fairness.
In order to ascertain whether the statutory decision-maker is subject to a duty of
fairness, it is necessary to examine the statute in order to determine the legislatures
intent.
Where the executive has been delegated a legislative function, and its not aimed
at particular cases, there is no ground on which the common law should supply
procedural fairness.
NB:

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Rulemaking and discretionary powers are not subject to


procedural fairness
Discretion exercised by Cabinet not subject to procedural fairness
(NAPO)
Certain sort of broad, policy-based discretion are excluded from
procedural fairness (NAPO)

Bylaws and Rulemaking


Homex Realty and Development Co. Ltd. v. Wyoming (Village) [1980] right to be heard when
governmental body seeks to alter property rights further develops principle that legislative
action reviewable if law is specific to individual
While interference with property rights no longer grants automatic procedural
fairness rights, here, the village was trying to prevent citizens from paying for municipal
services while using public power to win its argument against Homex
Therefore, in cases like this where there was a "double duty" (ie: public interest v.
trump card in private dispute), special considerations arise
Legislatures have the power to pass bylaws in the name of the public interest,
but they must do so in accordance with procedural fairness if people are specifically
affected; here, that happened, so Homex deserved a right to be heard

Policy Making
Where the impact of the decision being made is diffuse, affecting a broad
spectrum of the public in a generally undifferentiated manner, claims to participatory
rights will be hard to justify, unless the legislation contains some indication of public
participation or obligations of consultation.
Where hearings are warranted, however, considerations of who should be
entitled to participate will be at the forefront of the assessment.
Bezaire v. Windsor Roman Catholic Separate School Board existence of guidelines and
regulations (or similar instruments) can give rise to duty of procedural fairness in circumstances
in which they would otherwise not exist
School board closed 9 schools in face of financial crisis.
Contrary to ministerial guidelines and boards own policy on closings, parents
and students given no opportunity to input into decision before it was made (some
consultation after).
Court did hold that the ministerial guidelines were not technically subordinate
legislation and thus not strictly binding on the board but the Court said there was a level
of fairness that applied.
Since neither Ministers nor boards own procedural guideline followed there was
a denial of procedural fairness
Public consultation is condition precedent to a valid decision.

Regulated Industries and Producers

15

Canadian Association of Regulated Importers v. Canada (AG) [1994]


Facts: This was an application to quash the decision of the Minister for
International Trade to allocate import quotas for hatching eggs and chicks to hatcheries
across Canada based on market share rather than to traditional importers on the basis
of their historical record of imports. Market share is the percentage of the total Canadian
production of hatching eggs and chicks which a particular hatchery produces. The
applicants also sought an order requiring the Secretary of State for External Affairs to
allow them to make representations and submissions on any proposed quota allocation
scheme before it is adopted, and an interim order directing the Minister to issue quotas
for hatching eggs and chicks to those who have historically imported eggs and chicks.
The grounds for the challenge were that the rules of natural justice were not met
because the applicants did not have an effective opportunity to make
representations with respect to the allocation scheme before it was decided upon;
the Minister considered extraneous and irrelevant considerations in reaching his
decision; and the Minister who had the authority under the Act to make the decision was
not the Minister who made the decision.
Reasons: Reed held that in deciding how to allocate import quotas, the Minister
was exercising a statutory power which had been delegated to him. It caused
considerable economic harm to the applicants and others. There was an implied
principle that Parliament intended that the statutory powers being exercised in this case
would be exercised in accordance with the administrative law rules of fairness, which
included notice to the applicants of what was being proposed and an opportunity to
comment. There need not exist a "right" to bring an application for judicial review;
it is sufficient if the applicant can demonstrate an "interest" which justifies the
application for judicial review. In some cases that interest may be only a
"legitimate expectation". The applicants may not have had a "right to import", but for
many years they had been importing in an unregulated environment. They had
established a position in the market and an economic viability based on this practice of
importing. They established an interest sufficient to found a claim for review of the
Minister's decision respecting the allocation of import quotas. It would not have been
impractical to give those affected by the allocation decision an opportunity to comment
thereon. There were not a large number of persons affected and they were known.
Although personal and individual notice to every person affected was not required, some
sort of general notice, perhaps by newspaper notice, and an opportunity to submit
representations was required before a decision was taken.
When looking at review of a policy decision, what is important is
an assessment of the effects of the decision. The decision was treated as setting
down rules according to which permits would be and were strictly issued. These
were not guidelines for internal administrative use. It was applied as a
binding decision with respect to the issuance of permits. No discretion was left to
an official acting in the name of the Minister to depart from the system of quota
allocation detailed in the notice to importers.
As a result of his findings, Justice Reed granted an order
continuing their entitlements under the old scheme, at least until they had been
able to make submissions on the changes.
16

Individualized Decision Making Based on Exercise of Broad Discretionary


Powers
This whole question of the limits of procedural claims in the context of individualized decision
making is raised by the judgment of the Supreme Court in Idziak v. Canada (Minister of Justice)
Idziak v. Canada (Minister of Justice)
In this case, the claim advanced was that the Minister of Justice had an
obligation of procedural fairness in deciding whether to actually surrender a person to a
foreign power after a deportation order had been made.
In describing this function as being at the extreme legislative end of the
continuum of administrative decision making, Justice Cory made it abundantly clear that
there was not a clear dichotomy in the courts mind between legislative decisions and
decisions that have as their target a particular individual.
Nonetheless, Cory did accept that the Minister had a duty to act fairly.
Part of the role of the courts in cases such as this is that of evaluating the
legitimacy and weight of those claims against the individual interest that is at stake with
a view to determining whether there are any reasons of principle or utility for allowing
that interest to be trumped at the procedural fairness level.

Emergencies
Re Walpole Island First Nation: PF wont apply where its an emergency and
decision-maker must act quickly and procedural standards will have to be set aside.
R v. Randolph [1966]: Court held that an interim order withdrawing mail services
to an individual could be made without hearing when the statutory basis for decision was
belief that mail was used for criminal purpose. Impt that it was interim only open to
reassessment on a subsequent hearing. Court influenced by the explicit provision for an
after the event hearing.
Cardinal v. Director of Kent Institution [1985]: Because of apparently urgent or
emergency nature of the decision to impose a segregation (of prisoner) in the particular
circs of the case, there could be no requirement of prior notice and an opportunity to be
heard before the decision.

5. Procedural Obligation Triggers (Charter & Bill of


Rights)
CB 178-251
Now we turn to the triggers for another source of procedural obligations: Charter
s.7 and Bill of Rights. A rst observation on the Charter. This is administrative law, not
constitutional or criminal law. It will almost always be wrong in an administrative law
exam to discuss Charter rights other than s.7 you are not being examined on s.11

17

rights or s.2 or s.15. (Section 11(d) for instance almost never applies to administrative
bodies, unless the criteria for its application are met by, for example, the existence of
contempt powers).
But with s.7, the situation is different because this provision does impose the
requirement to observe fundamental justice a concept with procedural content on at
least some administrative decision-makers. Which ones? Well, those making decisions
that go to life, liberty or security of the person. Do not make the mistake of assuming
that all (or even much) administrative decision-making relates to these interests. But
some of it does and you need to understand how and where this trigger works.
The Canadian Bill of Rights is similar in many respects, but not all by any
measure. Note carefully to whom it applies. Think about whether you ever want to say
that a decision-maker exercising power under a provincial statute is subject to the Bill.
Also look at the triggers for sections 1(a) and 2(e) and note the extent to which they are
the same and differ from Charter s.7. Above all, recognize that these two provisions
have their own triggers that have to be satised before they apply at all.

The Charter and the Bill of Rights: Issues of General Applicability


Bill of Rights
The Bill of Rights is a federal statute. As such, its area of application is confined
to the federal domain.
It purports to be applicable to both prior and subsequent legislation in that it
declares its primacy over all other legislation, unless that legislation contains an express
provision to effect that it overrides the Bill of Rights s.2. This manner and form
requirement has generally been treated as effective to achieve its purposes and as
giving the Bill its constitutional or quasi-constitutional status.
The Bill applies to the laws of Canada, a term specified to include not only Acts
of Parliament and any order, rule or regulation thereunder but also any law in force in
Canada s.5(2). This is presumably broad enough to encompass decisions and actions
taken by those deriving their powers from federal law (including prerogative powers and
action taken under them).
However, there is an argument that, unlike the Charter, the reach of the Bill
corresponds generally to that of judicial review under the Federal Court Act.
Charter
The Charter applies throughout Canada.
It is clear, however, that the ambit of the Charter is not coterminous with that of
judicial review. By virtue of s.32(1) of the Charter, its application is restricted to the
Parliament and government of Canada and the legislatures and governments of the
provinces and territories. This has been held by the Supreme Court to have the effect of
restricting the Charters application in the administrative law arena to bodies or at least
activities that can be brought within the concept of government.
McKinney v. University of Guelph

18

The majority of the Supreme Court held that, notwithstanding their


statutory status, universities were not government and, therefore, not generally
amenable to the Charter with respect to actions and decisions that would expose
them to judicial review
The same held true for B.C. hospital boards, but not that
provinces community colleges, a differentiation that indicates that the dividing
line between that is government for these purposes and what is not is certainly
not a bright-line distinction.
Harvey v. Law Society (Newfoundland) contrast with McKinney
The Newfoundland Superior Court held that the Charter reached
the disciplinary functions of the Law Society.
Given the self-regulating status of the legal profession, why is that
so? What sorts the Law Society out from the university, given that each now
operate under a statutory umbrella?
Eldridge v. B.C. qualification on non-governmental entities immunity from
Charter
The Supreme Court held that decisions of B.C. hospital boards on
whether to provide translation facilities for hearing impaired patients were subject
to the Charter since, in the delivery of healthcare services, hospitals were
implementing a specific government policy.
Thus, a statutory authority that is not in general government
becomes subject to the Charter when charged with responsibility for the
effectuation of government programs.
Also, bodies that are not generally directly subject to the Charter may,
nevertheless, be affected by it. To the extent that the respondent universities in
McKinney were subject to the Ontario Human Rights Code prohibitions against age
discrimination and justified their mandatory retirement provisions on the exemptions from
those prohibitions, their policies stood to be affected by a conclusion that the Ontario
legislature (to which the Charter clearly applies) had transgressed s.15(1) in providing
for such exemptions recall that the human rights code is an ordinary statute
(notwithstanding its supremacy clause) and as such must be interpreted in conformity
with the Charter.

The Bills of Rights: Specific Procedural Thresholds


For the purposes of administrative law, the principal procedural protections of the Bill are to be
found in s.1(a) and s.2(e).
Sec. 1(a) provides as follows:
It is hereby recognized and declared that in Canada there have
existed and shall continue to exist without discrimination by reason of race,
national origin, colour, religion or sex, the following human rights and
fundamental freedoms, namely (a) the right of the individual to life, liberty,
security of the person and enjoyment of property, and the right not to be deprived
thereof except by due process of law
Sec. 2(e) provides as follows:

19

Every law of Canada shall, unless it is expressly declared by an


Act of the Parliament of Canada that it shall operate notwithstanding the
Canadian Bill of Rights, be so construed and applied as not to derogate, abridge
or infringe or to authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein recognized and declared, and in particular, no law
of Canada shall be construed and applied so as to (e) deprive a person of the
right to a fair hearing in accordance with the principles of fundamental justice for
the determination of his rights and obligations.
Thus, the sections are viewed as a vehicle for rendering
inoperative federal statutes that do not provide the protections of due process of
law and fundamental justice respectively.
There are three threshold dimensions of the Bill that promise a more extensive
reach in terms of procedural protections than provided by the key Charter provision, sec.
7:
First, the use of the term individual and person in the Bill as
opposed to everyone in the Charter. In Irwin Toy v. Quebec, the Supreme Court
held that life, liberty and security of the person in sec. 7 of the Charter are
attributes possessed only by natural persons and, hence, everyone does not
include corporations. Whether the same holds for sec. 1(a) and sec. 2(e) has not
been resolved definitively by the Supreme Court. While there is lower court
authority to the effect that corporations are excluded from the benefit of sec. 1(a),
there is no reason why the same should be so for sec. 2(e). In fact, sec. 2(e)s
application to corporations was assumed by the Federal Court of Appeal in
Central Cartage. It should be noted, however, that in R v. Wholesale Travel
Group, the Supreme Court held that a corporation (at least in the context of a
defense to a criminal charge or in answer to a civil claim or regulatory
proceedings) can argue that a legislative provision is invalid because it would
violate sec. 7 in its application to an individual.
Second, the inclusion of enjoyment of property in sec. 1(a). Quite
deliberately, sec. 7 did not include protection for property rights. However, there
is considerable room for debate about the nature of the property rights that are
included within sec. 1(a). Nonetheless, this represents the most significant
difference in terms of coverage.
In 785072 Ontario Inc. v. Canada (Minister of
National Revenue), which had to do with the confiscation under the
Excise Act of a rental vehicle in which smuggled alcohol had been found.
Under the relevant legislation, there was no guarantee that the owner of
the vehicle, in this case a company that had leased the car to another
company for rental purposes, would receive notice of the situation before
the vehicle became forfeited to the Crown. While dealing with the issue of
notice by reference to common law and statutory interpretation principles,
Judge Rothstein also suggested that, in the event that that conclusion
could not be justified on a proper reading of the statute, the legislation
itself might be contrary to the Bill. The forfeiture of the vehicle to the
Crown affected the ownership rights of the leasing company and the fact

20

that this could occur without notice to it of either the seizure or the
confiscation seemed to constitute a denial of the benefit of the principles
of fundamental justice.
Third, the attachment in sec. 2(e) of procedural guarantees to the
determination of rights and obligations. Initially, the term rights and obligations
was interpreted narrowly by the courts and restricted to the taking away of strict,
legal rights. However, in Singh v. Canada (Minister of Employment and
Immigration), three members of the Supreme Court held that the immigration
authorities came within sec. 2(e) when deciding upon a convention refugee
claim. This involved determining whether the claimant had a statutory right to
remain in Canada. Although the precise dimensions of sec. 2(e) still remain
murky, at the very least, this mode of reasoning ensures that it will be determined
by reference to quite different and much more expansive criteria than is the case
with life, liberty and security of the person.
Four, while the Bill does not contain an equivalent to sec. 1 of the
Charter, the Quebec Court of Appeal in Air Canada v. Canada (Procureure
generale) held that, in determining the demands of the principles of fundamental
justice for the purposes of sec. 2(e), the court should engage in a sec. 1-style
balancing process akin to that set out in R v. Oakes.

Section 7 of the Charter: Specific Procedural Thresholds


Singh v. Canada (Minister of Employment and Immigration) [1985] s.7 applicability to the
procedural mechanisms set out under the Empower Act not on their actual application to the
case at bar s.26 of the Charter keeps the Bill of Rights in power
s.7 of the Charter and s.2(e) of the Canadian Bill of Rights require that an oral
hearing be held in the following circumstances:
Where there is a serious factual complexity;
Where there is a need for an immediate back and forth question
and answer between the panel and the parties;
Where the central issue is credibility.
This case only applies where your rights under s.7 or s.2(e) are engaged. Must
be judicial end of the spectrum.
Charter rights apply to Singh because "everyone" in s.7 includes "every human
being who is physically present in Canada" and "security interestmust encompass
freedom from the threat of physical punishment as well as freedom from such
punishment"
While an oral hearing is not always required when a s.7 interest is engaged, it is
always required when the issue of credibility is at stake, so here the legislative scheme
that provided inadequate opportunity to the refugee claimant to state his case (ie: no oral
hearing) and know the case he has to meet violated the principles of fundamental justice
The deprivation wasn't saved under s.1 because issues of administrative
efficiency and convenience can't override the PFJ

21

Reasoning in Singh has been extended to arena of extradition proceedings, including extradition
of fugitive criminals who enter Canada illegally (Kindler v Canada 1991).
Two qualifications to Singh have emerged:
1. s.7 doesnt always require an oral hearing; and
2. In addition to balancing of interests that must occur in making determinations as
to the precise procedures that the principles of fundamental justice mandate, there is
also room for s.1 to be invoked in justification of s.7 violations. Court held in Kindler that
Minister hadnt breached principles of fundamental justice in the procedures adopted in
deciding whether to grant the extradition request from foreign govts. Arena for judicial
type procedures is at the actual extradition hearing and no need to replicate at the
surrender stage.
Charkaoui v. Canada (Minister of Citizenship and Immigration) [2007] - where an order effects
someones life, liberty or security of the person, that person must know the case against him
and have an opportunity to respond however, the right to know the case against you is
qualified by interests of national security sufficient to give summary of confidential details
Facts: In 2003, Adil Charkaoui, a permanent resident in Canada, was arrested
and imprisoned under a security certificate issued by the Solicitor General of Canada
(then Wayne Easter) and the Minister of Immigration (then Denis Coderre). Hassan
Almrei and Mohamed Harkat are foreign national who were granted refugee status in
Canada. Both arrested on a security certificate. All three detained pending completion of
proceedings for their removal. Immigration and Refugee Protection Act (IRPA) said first
step on proceedings was for a federal judge to review the certificates to determine if
reasonable. Review was conducted in camera (private) and ex parte (emergency
hearing) as request of minister. Individuals had no right to see the materials on the basis
of which the certificate was issued. Non-sensitive material could be disclosed but
sensitive material could not if minister objected. Reviewing judges decision that a
security cert was reasonable was final and could not be appealed. Constitutionality of
certificate was challenged including on basis that the procedure to determine the
reasonableness of certificates violated s.7 rights.

Procedure engages two interests in s.7:


Liberty persons subject to security certificates face detention
pending deportation
Security of the person person's removal may be to a place
where his or her life/freedom would be threatened
It also violated the principles of fundamental justice because it denies the person
named on the certificate a fair hearing, which includes a hearing before an independent
and impartial tribunal who must decide on the facts and law, and also includes the right
to know the case to meet and to have an opportunity to answer it
Therefore, McLachlin C.J. for a unanimous court found that weighing interests of
individual and society during s.1 analysis didn't justify the procedure because the
infringement didn't minimally impair the right at stake

22

Note: court left open the "Suresh exception" where exceptional circumstances
may entitle Canada to deport a person to torture
Is the limit justified by s.1 of the Charter?
Oakes test: (R v. Oakes [1986]) requires a pressing and substantial objective and
proportional means. A finding of proportionality requires:
Means rationally connected to the objective;
Minimal impairment of rights; and
Proportionality between the effects of the infringement and
importance of objective.
National security = pressing and substantial objective
Non-disclosure of evidence at certificate hearings = rationally connected to the
objective
Noted there are alternatives to allow nation to protect sensitive info e.g. allow
security cleared advocates to appear for individuals Therefore, IRPA procedures do not
minimally impair rights therefore unconstitutional.

Section 7 of the Charter: Life, Liberty, and Security of the Person


To the extent that administrative processes have similar liberty dimensions to
those typical of the criminal law context, it is important to note that the courts have
rejected arguments to resurrect a species of rights-privileges dichotomy as a basis for
denying the incarcerated procedural entitlements under s.7.
Blencoe v. BC (HR Commission) [2000]
Facts: B minister in BC government accused of sexual harassment. Accusation
made publicly. Ended up before BC HR Commission. Government dismissed him from
cabinet. Lots of media coverage. He resigned from his seat. From the time the
complainants filed complaint until HR Commission scheduled a hearing, 30 months had
passed. Bs reputation was destroyed by this time. There was no reason given for the
delay. B applied for stay of proceedings until challenge to the proceedings could be
heard.
Three scenarios in which delay can engage s.7 of the Charter, procedural
fairness, or abuse of process:
If there is significant psychological harm caused by state imposed
delay, the decision can be quashed or stayed for breach of s. 7;
If there is no significant psychological harm, but the partys ability
to make their case is impaired, then procedural fairness is impacted by the delay
and the decision may be quashed or stayed.
Abuse of process: if the delay is so serious that people would find
it objectionable or the administration of justice falls into disrepute, then that will
lead to an abuse of process. Rule of thumb is 30 months.
If delay is insufficient to lead to above remedies, court may order costs on judicial
review (including ordering tribunal to pay costs).

23

6.

Content of Procedural Obligations (Right to be Heard)

CB 37-53; 255-258; 274-278; 285-303; 308-406; 411-421; 425-440

We turn now to the question: if procedural obligations are triggered, what does the decisionmaker have to do? Or more concretely, what is the content of these procedural obligations?
If your procedural obligation comes from a statute the enabling act or one of the special
legislated procedural codes discussed at CB 77-85, the answer to this question is: whatever
the statute says is the content is the content. (However, there may be occasions in which you
will have to determine whether the statute is a complete code or leaves room for common law
supplementation.)
Life is more complex if your trigger is the common law, Charter or Bill of Rights. While there are
some differences, generally speaking, the content where these sources apply boils down to two
broad classes of procedural rules: a right to be heard and a right to an unbiased decision-maker.
Within these two classes, there are many details, and you still need to understand what does it
mean in practice to have a right to be heard and what does it mean in practice to have a right to
an unbiased decisionmaker.
The basic issue is this: the precise content of procedural rules coming from the common law,
Charter or Bill of Rights varies from case to case according to the circumstances. Certainly with
respect to the right to be heard, you must start with the Baker considerations: Baker gives you a
(non-exclusive) list of considerations that tell you at least something about content. Specically,
the Baker test suggests whether the content will be robust or not. (It actually tells you a little bit
more if your trigger is legitimate expectations: with legitimate expectations, the content of the
procedural obligation is generally what was promised in the procedural promise that gave rise to
the legitimate expectation in the rst place. If the promise was substantive, you will not be able
to enforce it directly, but at the very least, it may lead to enhanced or more procedural fairness.)
Of course, one cant stop at an outcome that just says robust or lots of procedural fairness, or
not. Thats not enough. One has to unpack that concept and focus on specic procedural
entitlements: how much notice; what sort of hearing; how much disclosure, etc., etc.. So the
readings review a series of procedural entitlements and propose some lessons on when these
particular procedural entitlements might exist and to what degree. Be attentive to this
jurisprudence.
A word of warning: when it comes to an examination, you do need to explore which procedural
entitlements are owed and whether they have been met, but if you pay no heed to the sorts of
circumstances that give rise to these specic entitlements, you may end up with an implausible
laundry list of procedural rules that you say should apply when they really dont. An uncritical
laundry list is not satisfactory analysis and does not generate more marks.

The Role of Judicial Review

24

Baker v. Minister of Citizenship & Immigration [1999]


5 factors have been recognized as relevant criteria for the determination of the
content of procedural fairness.
Nature of the decision and the process followed in making it: The
closeness of the administrative process to the judicial process should indicate
how much of those governing principles should be imported into the realm of
administrative decision making. (Knight)
Legislative & general / discretionary policy suggests
less PFOs
Administrative & specific / resembles adversarial
court-like process / fact-finding & credibility suggests more PFOs
Nature of statutory scheme and the terms of the statute pursuant
to which the decision maker operates: Greater procedural protections, for
example, will be required when no appeal procedure is provided within the
statute, or when the decision is determinative of the issue and further requests
cannot be submitted.
Also consider if there is a general statute specifying
procedures such as Ontarios Statutory Powers Procedures Act (none in
B.C.):
1. Does statute or regulations give PF rights or
override common law PFOs (e.g. as in Singh Wilson J. is statute intended
by legislature to be exhaustive for PFOs);
2. How general scheme affect PF (e.g. multi-stage
process and preliminary investigation v. final decision);
3. Is there an administrative appeal or redetermination
(if not suggests more PF);
4. Is case arguing for ordinary scheme to be followed
or looking for an exception (which might suggest less PF).
Importance of decision to individual: The more important the
decision is to the lives of those affected and the greater its impact on that person
or those persons, the more stringent the procedural protections that will be
mandated. This idea comes from Dickson J. in Kane.
The legitimate expectations of the person challenging the decision
may also determine what procedures the duty of fairness require in given circs.
This doctrine is part of the doctrine of fairness or natural justice and does not
create substantive rights. (Old St. Boniface). 2 meanings:
Promises / conduct / usual practices by officials that
gives individual legitimate expectation that a certain procedure would be
followed. (Qi and Bendahmane).
Where an individual has a legitimate expectation of
a particular result (e.g. that license would be renewed) (Mullan) cant be
used substantively to actually get that result, but can be used to argue for
more PF before expected result denied.
Take into account and respect the choices made by decision
maker. These choices should be respected, particularly when the statute leaves
to the agency the ability to choose its own procedures or when the agency has

25

an expertise in determining what procedures are appropriate in the


circumstances. Should consider why agency made choices of procedure that it
did (but this cant be determinative and so carries less weight since court
reviewing if they are adequate): look at institutional constraints on agency /
practicalities such as not overburdening system (especially if has to make 1000s
of decisions), expediency, informality, etc., which can all be trade offs against
requiring high PFOs
In this case looking at these 5 factors:
Nature of decision has high level of discretion and must consider
many factors, not very court-like (humanitarian and compassionate grounds
different from a judicial decision)(suggests less PFOs).
Statutory scheme is that ordinarily people will apply for permanent
residence from outside Canada, whereas here Baker applying for exception to
this (suggests less PFOs BUT no administrative appeal) (suggests more PFOs).
Impact here on both Baker and her children very significant,
(suggests more PFOs)
No legitimate expectations (i.e. no promises / conduct by officials
to Baker suggesting she would be given more PFOs, nor history of giving oral
hearings) (neutral)
Statute gives Minister much flexibility to decide on proper
procedure and in practice interviews are not conducted in all cases.
Balancing these factors L HD concludes circs require a full and fair consideration
of the issues and the claimant and others whose important interests are affected by the
decision in a fundamental way must have a meaningful opportunity to present various
types of evidence relevant to their case and have it fully and fairly considered. In this
case though, no need for oral proceeding, rather written submissions sufficient to hear
all relevant information.

The Level and Choice of Procedures


Suresh v. Canada (Minister of Citizenship and Immigration) [2002]
Imports the Baker principles to help determine the procedural protections to
which an individual is entitled under s.7 of the Charter. Principles of fundamental justice
as referred to in s.7 are not identical to the duty of fairness set out in Baker but are the
same principles underlying the duty.
Facts:
Minister had decided to deport Suresh, an alleged member of the
Sri Lankan Tamils (a terrorist group), on grounds that he was a danger to the
security of Canada.
But Suresh alleged that there was a possibility that hed be in
serious jeopardy of torture if sent home.
Suresh had opp to make written submission and file material with
minister, did not have copy of a copy of the immigration officers report based on
which the cert was issued so did not have ability to respond orally or in writing.
Decision:

26

To deport a refugee to face a substantial risk of torture would


generally violate s.7 of the Charter. The Minister must exercise her discretion to
deport accordingly which she did.
The principles of fundamental justice of which s.7 speaks, though
not identical to the duty of fairness elucidated in Baker, are the same principles
underlying that duty. Thus, the principles of fundamental justice demand, at a
minimum, compliance with the common law requirements of procedural fairness.
(Wilson in Singh)
Also, these requirements should be applied in a manner sensitive
to the context of specific factual situations. (like fairness generally)
The 5 Baker factors:
(1) Nature of the decision
While deportation decisions have
some similarity to judicial processes, they are decisions to which
discretion must attach in evaluating not only past actions and
present dangers, but also the risks from future behaviour of an
individual.
(2) Nature of the statutory scheme
There is a disturbing lack of parity
in procedures for similar measures taken under different parts of
the Immigration Act.
Here there are no procedures at all.
Thus, no right of appeal or further submissions.
(3) Importance of the right affected
Sureshs status as a convention
refugee, the risk of torture, and the serious personal, financial and
emotional consequences are all significant effects of this decision.
(4) Legitimate expectations
The Convention Against Torture
(CAT) explicitly prohibits deportation where there are substantial
grounds to believe in the risk of torture. This raises an
expectation that participation will be allowed in demonstrating and
defending those substantial grounds. It is only reasonable that
the same executive that bound itself to the CAT intends to act in
accordance with the CATs plain meaning.
(5) Choice of procedures
Minister has discretion to choose
procedures in terms of statute. This follows from need for
Ministerial discretion in evaluating future risk and security
concerns.
This signals deference that
Parliament has given to Ministers choice of procedures.
In this case, PFOs required by s.7 do not extend to the level of requiring a full
oral hearing or a complete judicial process. However, they require more than Suresh
received. In particular, they are:

27

Must be informed of the case to be met before consideration of


opposing argument and after being provided with an opportunity to examine the
material being used against (subject to reduced disclosure for privilege or
security reasons)
Must be given an opportunity to challenge the information of the
Minister where issues as to its validity arise such as evidence of the risk of
torture, association with a terrorist organization, and assurances by a foreign
state. Assurances are particularly suspect in torture cases because past practice
may indicate an impotence of the state in controlling the behaviour of its officers.
Assurances no to apply the death penalty are generally easier to monitor and
more reliable.
Must be provided written reasons that articulate and rationally
sustain the finding. They must also emanate from the decision-maker (i.e. the
Minister) and not just be the advice or suggestion to the decision-maker (i.e. not
just the prosecutorial brief/memorandum).
These procedural protections need not be invoked in every case. The
individual must make out a prima facie case that there may be a risk of torture upon
deportation, before these PFOs are engaged.

Specific Content Issues


1. Pre hearing content issues issues of notice, claims to pre-hearing disclosure or
discovery of evidence to be relied on and delay in the processing of administrative
proceedings
2. Nature of the actual hearing should it be written or oral or a mixture? Are
parties entitled to representation by counsel, an agent, a friend? If oral hearing, right to
cross examine witnesses? Types of evidence that a decisionmaker can rely on and
obligation to reveal that evidence (confidentiality claims impt here). Duty to provide
reasons.

Pre-Hearing Issues
Notice
Problems about notice:
Form of notice written or oral (usually written);
Manner of service personal service is norm but if impacts a large and number
(public notice is ok);
Timing;
Contents of notice.
Canada (AG) v. Canada (Commission of Inquiry on the Blood System in Canada Krever
Commission) - this case establishes that where a commissions mandate is made known to the
parties (in this case, the possible finding of misconduct of certain entities), those parties cannot

28

rely on the commissions process leading to an adverse findings as an undisclosed potential


consequences of the investigation, and claim lack of notice moreover, in relation to adequate
time to respond after issuance of notice, the time required will depend on the circumstances (ex.
whether there is any potential injury to the parties)
The notice in general:
Should be as detailed as possible; and
With respect to timing: notices were not objectionable (valid) so
long as they give the recipients adequate opportunity to allow them to make
submissions they were valid (organizations were part of the procedure for 2
years; 3 weeks was sufficient notice)
Timing of the Notice:
Look at your documentary legal authority to prescribe the required
timing (in this case no statutory duty prescribing time);
It is helpful to know in advance of the finding, but you have to look
if it is practical to give more notice or impractical to give more notice (in this case
they knew for 2 years about it);
Adequate time: late delivery will not in itself constitute unfair
delivery if the parties have sufficient time to respond, technical delay is
insufficient to make the notice inadequate; the timing of notice will always depend
on the circumstances.
Conclusions: Reasonable Notice: Timing and Contents:
Notice is required for any decision that affects the rights of the
individual;
Must be reasonable, both in content and in timing;
Adequate depends on the circumstances;
Has to be sufficient for the client to be able to understand the case
and to prepare.
Discovery
Fuelled by the judgment of the Supreme Court in R v. Stinchcombe was an
increasing concern with the question whether notice entitlements in the administrative
process involve a claim to pre-hearing discovery of all relevant information in the
possession of the other side
Canadian Pacific Airlines Ltd. v. Canadian Air Line Pilots Association power of
compulsion of agency must firmly be rooted in statute no presumption of power will be
given additionally, provision granting power of compulsion must be interpreted carefully
this case, did not apply to pre-hearing or investigative phase.
Delay
Kodellas v. Saskatchewan Human Rights Commission [1989]
It is my opinion that for the purposes of determining an "unreasonable delay" in
the context of s.7 of the Charter in relation to a remedial proceeding under the Code, the
factors to consider and weigh are:
1. Whether the delay complained of is prima facie unreasonable,
having regard to the time requirements inherent in such a remedial proceeding;

29

2. The reason or responsibility for the delay, having regard to the


conduct of the complainants (at whose instance the proceedings were initiated)
the conduct of the Commission (who by the provisions of the Code has carriage
of the proceedings), including the inadequacy of or limitation to its institutional
resources, and the conduct of the alleged discriminator, including whether he
failed to object or waive any time period; and
3. The prejudice or impairment caused to the alleged discriminator
by the delay.
In this case the delay was unreasonable and it appeared ascribable to the
Commission. On (3) Kodellas alleged the delay meant he was unable to find potential
witnesses and also fading recollection of potential witnesses. Judge agreed with this.

The Actual Hearing


Oral Hearings
As part of the audi alteram partem rule, traditionally the right to an oral hearing was usually
required as an element of natural justice:
As the duty of fairness emerged, the presumption in favour of an oral hearing (as
opposed to written submissions) disappeared, and deference to procedural choices
became the norm.
Baker: as there is no more automatic right to an oral hearing, the question is
whether the applicant received a "full and fair consideration" of their claim given the
circumstances.
Nicholson: written submissions sufficed (no oral hearing), as while a dismissed
police officer should have been told why he was dismissed and should have been given
the opportunity to respond, the Board had discretion as to whether it should be an oral or
written hearing.
Baker: written submissions sufficed (no oral hearing), as the lack of an oral
hearing for a woman applying for an exemption to immigration requirements was not
found to violate procedural fairness.
Generally, oral hearings will be required (otherwise written submissions will
suffice) if:
Applicant is entitled to natural justice; or
Baker: credibility is an issue; or
Singh: life and death is at stake (i.e.: s.7 principle of fundamental
justice argument)
According to audi alteram partem, an applicant must know the case he has to meet, which
includes having access to the info before decision-makers and having a summary of the case
case law expands on this content:
Singh: Minister submitted additional info to the appeal board which Singh didn't
know about.
Chiarelli: with national security cases, applicant must have a summary of the
case against him, but need not have every detail.
Suresh: Where an applicant establishes a prima facie case that he has a risk of
facing torture, he must have notice of the full case against him and be given an

30

opportunity to respond, which includes an opportunity to view the Minister's info before
making submissions.
Masters v. Ontario (1994): an oral hearing was not deemed necessary when an investigation
team ordered a high-level bureaucrat reassigned after an investigative team found he had
sexually assaulted seven women. The court ruled that the duty of fairness was met even without
the hearing because the party had an awareness of material allegations against him and
adequate opportunity to be heard.
Khan v. University of Ottawa [1997] - strong case for oral hearing when credibility is in issue &
potential for a seriously negative impact on person also, no need to prove actual prejudice
reasonable apprehension sufficient.
An oral hearing should be granted where:
1. Credibility is a serious issue; and
2. Where the consequences to the interest at stake are grave.
An oral hearing should include an opportunity to appear, to make oral
representations, and correct or contradict circumstantial evidence on which the decision
might be based.
Open Hearings
Whether to hold oral hearings publicly was traditionally treated as within the discretion of
tribunal; recent challenges by media have led to greater openness. The issue is whether a
hearing should be open to the public or not. Competing interests are freedom of
expression/freedom of the press vs. the security and privacy interests of the subject of the
hearing. Also, protecting the victim and ensuring witnesses come forward are other rationales
for having in camera proceedings.
Theres also the concern of commercial competitiveness among media institutions.
Right to Counsel
There is no common law absolute right to counsel, and the rights existence is fact-dependent.
However, in many cases, the right to counsel is assumed and in many cases a statute provides
for it.
The more complex the inquiry and the more severe the repercussions on
individuals involved the more likely the person has a right to counsel.
On the matter of entitlement to counsel in prison, several factors are considered
including the seriousness of the charge and the potential penalty, points of law likely to
arise, capacity of prisoner to make his or her case, procedural difficulties, and the need
for speed and fairness between prisoners.
The principles of fundamental justice do not entitle someone to the right to
counsel in cases of routine information gathering. In Dehghani v. Canada (Minister of
Employment and Immigration), [1993] a refugee claimant alleged his s.7 and s.10(b)
Charter rights were violated by the denial of access to counsel during an examination at

31

a port of entry. Notes from the examination were used in a later stage of the refugee
process. The appeal was denied.
In New Brunswick (Minister of Health and Community Services) v. G. (J.) [J.G.],
[1999] the court found a parent had a right to counsel in a custody hearing because the
lack of counsel created an unacceptable risk of error in determining the childs best
interests and thereby threatening to violate both the [mother]s and her childrens s.7
right to security of the person. The right is not absolute, but depends on the parents
abilities and the complexity of the hearing.
Re Mens Clothing Manufacturers Association [1979]
The common law did not guarantee legal representation to persons involved in
arbitrations.
Although allowing counsel to represent parties in administrative tribunals is
generally favourable, in certain circumstances - especially where there are informal
procedures - it may delay the process or be contrary to the parties' legitimate
expectations.
The duty to act fairly implies the presence of counsel when a combination of
some or all of the following elements are either found within the enabling legislation or
implied from the practical application of the statute governing the tribunal (not
exhaustive):
1. Where an individual or witness is subpoenaed, required to attend
and testify under oath with a threat of penalty;
2. Where absolute privacy is not assured and the attendance of
others is not prohibited;
3. Where reports are made public;
4. Where an individual can be deprived of his rights or his livelihood;
5. Where some other irreparable harm can ensue.
New Brunswick v. G. (J.) [1999]:
The court found a parent had a right to counsel in a custody hearing because the
lack of counsel created an unacceptable risk of error in determining the childs best
interests and thereby threatening to violate both the [mother]s and her childrens s. 7
right to security of the person. The right is not absolute, but depends on the parents
abilities and the complexity of the hearing.
Where a decision impairs a s.7 interest, if government restriction of the "security
of the person" right has a serious and profound effect on a person's psychological
integrity, the principles of fundamental justice may require the Crown to provide legal aid
(ie: here, circumstances were a gov't order suspending parents' custody of their
children).
Disclosure and Official Notice
Disclosure: Disclosure to the parties of information that the agency has about the decision to
be made.

32

Official Notice: Extent and manner in which an agency may, in making its decisions, use
material that is not introduced in evidence.
Access to Information Statutes
These are useful in discovery, but exemption from these regimes does not mean
that natural justice will not supplement its disclosure requirements.
Crown or Executive Privilege
Provisions of the Canada Evidence Act allow the government to withhold
information from the courts, subject to a court determination of whether the public
interest in disclosure outweighs the specified public interest. s.39 thereof allows
withholding without a court determination. Attacks on its constitutionality have failed,
however (e.g. see Babcock v. Canada (AG) [2002]).
Other Common Law Evidentiary Privileges
Solicitor-client privilege and the presumption of deliberative secrecy among other
doctrines can also affect disclosure.
The competing interests for disclosure can generally be categorized into four
situations:
1.
Information collected by the agency directly;
2.
Identities of persons from which an agency has received
information;
3.
Business information collected;
4.
Material created by the agency itself.

Three major arguments can be made for disclosure:


1.
Individuals should have the right to know what government knows
about them;
2.
Disclosure would increase the effectiveness of participation of
claimants in the decision-making process; and
3.
Disclosure would tend to improve the quality of reports by
exposing carelessness and vagueness.

Reasons for refusing disclosure are generally weak, but there are some
legitimate concerns:
1.
Disclosure may cause harm in certain cases;
2.
It may raise the prospect of litigation and liability;
3.
It would reduce the frankness and detail of the reports.
Disclosure as a deterrent to frankness and thoroughness in reporting may be a
serious problem when information is needed after a long delay (e.g. looking at a patient
report after many years).

33

Access to Agency Information


Re Napoli and Workers Compensation Board [1981 BCCA] - establishes process on how to
assess whether the extent of the disclosure provided by the agency of information it has
gathered on the individual is sufficient in the circumstances
Identities of Sources of Information
Charkaoui v. Canada (Citizenship and Immigration) [2008] sec. 7 is engaged when a breach
of the rights that it guarantees will or may happen as a result of the agency administrative
justifications for limiting sec. 7 are not to be dealt with in the sec. 7 stage of the inquiry they
are to be dealt with in the sec. 1 inquiry what will be relevant at the sec. 7 inquiry stage is the
degree of procedural protections which is required in the circumstances.
Gallant v. Canada (Deputy Commissioner, Correctional Services Canada) [1989] extent of
disclosure required by procedural fairness must be assessed in light of any countervailing
concerns Ex. identity and safety of informants sec. 7 (liberty) is invoked when inmate
transferred to higher-security prison.
Gough v. Canada (National Parole Board) (1990) - different approach to disclosure statute in
question required Board either to rely on information but also have to disclose its source, or
forego its use altogether also establishes that statutory provisions limiting disclosure must not
be overly broad.
Commercially Sensitive Information
Magnasonic Canada v. Anti-Dumping Tribunal [1972] - Anti-Dumping Act requires that when
information of a confidential character is tendered at a hearing, it is done in camera. Further
steps to protect the confidentiality of the information depends on the circumstances. These
could, at most extreme, include exclusion of all competitors/rivals while evidence is taken, and
then provide these parties with a report on evidence taken with reference to confidential
evidence under s.28.
Staff Studies
i.e. material gathered by staff of a tribunal/agency
CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review Board) [1994]
Tribunals exercising economic regulatory function in public interest that do not
affect human rights in a way akin to criminal proceedings are entitled to benefit of
confidential communication with staff.
Toshiba Corporation v. Anti-Dumping Tribunal (1984) and Trans-Quebec & Maritimes Pipeline
Inc. v. National Energy Board (1984)
Both cases dismissed applications for disclosure of staff papers prepared for the
board/tribunal prior to hearing. However, if information in staff papers (made prior to a

34

hearing) is available to decision makers and is not brought forward in another form at
tribunal, principles of procedural fairness are breached.
Re League for Human Rights of BNai Brith and Commission of Inquiry on War Criminals (1986)
Allowed disclosure of a report of a working group of specialists established by
the Commission, on the basis that such a report would clearly be relied upon and given
significant weight by the Commission in determining whether there were legal means to
bring suspected war criminals to justice in Canada.
Admissibility of Evidence
It is well settled that agencies are not governed by the rules of evidence used by
courts unless some statutory provision requires them to be.
Indeed, sec. 15(1) of the SPPA authorizes the disregard of the normal rules of
evidence.
Nonetheless, to the extent that the rules of natural justice or procedural fairness
condition decisions about evidence, the discretionary authority of boards and tribunals
over questions of admissibility and requirements of proof is subject to limits and those
limits may, on occasion, be influenced by normal common law evidentiary principles.
Additionally, discretionary decisions over admissibility of evidence must not
remove the entitlement of affected persons to have a reasonable opportunity to make
their case.
On the other hand, natural justice considerations can also arise by reason of the
admission of and weight attributed to certain kinds of evidence. Given the historically
more relaxed attitude of the court to the use of hearsay evidence in administrative
proceedings, it is unlikely that the mere admission of hearsay evidence will lead to a
breach of the rules of natural justice.
However, exclusive reliance on hearsay evidence may give rise to a breach of
natural justice.
Cross-Examination
Innisfil (Township) v. Vespra (Township) where statutory authority grants a right to a hearing,
where the individuals rights may be determined, clear wording in the statute will be required to
oust the right to cross-examine also, the board may not invoke its opinion as to the potential
effectiveness of cross examination in an attempt to deny it.
If a statute doesnt disallow cross-examination, then the common law allows for
cross-examination. This is particularly significant where expert evidence is involved.
A breach of the right to cross-examine is always procedurally unfair. It is not for
the court to assess the outcome of cross-examination.
Re County of Strathcona No. 20 v. Maclab Enterprises Ltd. [1971] - restrictions on ability to
cross-examine may be permissible so long as other like-alternatives are furnished to parties
Ex. where expert witness is unavailable to testify, court may admit his report instead so long
as parties are given opportunity to respond to the report, fairness is maintained

35

If there is an alternative to cross-examination that is equally effective, then there


is no requirement to allow for cross-examination.
Re B and Catholic Childrens Aid Society of Metropolitan Toronto [1987] potential severity of
outcome on individual is proportional to Boards decision to offer cross-examination alternative
Djakovic v. British Columbia (Workers Compensation Appeal Tribunal) [2010]:
Cross-examination may be required where the hearing is at the judicial end of the
spectrum, the right or entitlement at issue is significant, and memory or credibility is at
issue.
Johnson v. Alberta (Appeals Commission for Alberta Workers' Compensation) [2011]:
Where there are competing expert opinions in evidence, cross-examination may
be required.

Post-Hearing Issues
Until recently, common law was reluctant to impose on decision makers an obligation to give
reasons for decisions. Baker changed this. Under Baker:

Disadvantages to give reasons:


Adjudicators felt it was a waste of time;
It would make things more litigious, more expensive;
Will cause a delay in decision-making;
Will be burdensome for informal administrative proceedings;
Will make it too complicated;
Adjudicators will not be candid about the reasons.

Advantages to give reasons:


You would get better decision making because adjudicator will be
under an obligation to consider all factors and produce the better reasoning;
parties will feel more confident in decision making;
It was useful for the purposes of appeal; you will have tribunals
rationale spelled out, therefore you can take up the errors to a higher level court;
Increased transparency for the parties;
Allows the court of appeal to make sure that the law has been
applied correctly;
More confidence for the parties.

Three grounds when the duty of fairness triggers the requirement to provide
reasons:
When the decision has significant importance to those affected;
When there is a statutory right of appeal;
Other circumstances (very vague, are not flashed out as yet if
there is a paramount interest at stake).
What are adequate reasons?
36

The Content of the Duty to Give Reasons


Any attempt to formulate a standard of adequacy that must be met before a
tribunal can be said to have discharged its duty to give reasons must ultimately reflect
the purposes served by a duty to give reasons. If the decision is challenged on an
appeal or an application for judicial review, the court will test the adequacy of the
reasons by asking whether, in light of the issues in dispute and the arguments and
evidence advanced by the parties at the hearing before the tribunal, the tribunals
reasons are sufficient to enable the court effectively to scrutinize the decision. To be
balanced against these is the consideration that to require unduly elaborate and
punctilious reasons and findings may put unjustifiable burdens on the tribunal.
In Baker, the Supreme Court also reinforced the need for written reasons in some
administrative decisions. The court argued that reasons were particularly important when
the decision will have important consequences for a party and when there is a statutory
right to appeal. The court allowed some flexibility in what constitutes reasons, and in this
case allowed the notes given by the subordinate officer to the decision-maker to be
treated as the reasons for the decision.
VIA Rail Canada Inc. v. National Transportation Agency [2001]
The leading case in prescription or framework for the content of duty to give
reasons.
The duty of fairness triggered the duty to give reasons. What constitutes an
adequate reasons: it stands for the principle that reasons must be adequate but
adequacy is not established through the mere recitation of facts, submissions and
evidence; the duty to give reasons requires more than that.
Summary:
If the decision involves the exercise of discretion, reasons must
demonstrate that the tribunal recognized that it had discretion and what factors it
employed in exercising the discretion;
If the statutory standard (undue obstacle, five penalties, six
demerit points, etc.) is stipulated in the statute, the tribunal should also show that
it turned their mind to the statutory standard and what factors it considered
satisfying or not satisfying;
If the decision is based on findings of credibility, courts require
some explanation of unsworn evidence and an explanation of why such evidence
was accepted or rejected, especially if it is uncontradicted evidence.
Effect of Breach of Duty To Give Reasons
If it is apparent from the reasons for a decision, whether given voluntarily or
under legal obligation, that the decision maker misinterpreted the legislation or
committed some other error of law, the decision may be set aside.
However, if the tribunal's reasons, read in a realistic manner, indicate that it
applied its mind to the most important issues, a court will not necessarily infer from its

37

silence about others that it ignored them altogether: Kindler v. Attorney General of
Canada [1987].
It is more usual, though, for a court to decline to speculate whether the tribunal
would have decided the dispute in the same way if it had realized that it could not in law
rely upon the reasons given.

7. Content of Procedural Obligations (Unbiased DecisionMaker)


CB 441-556
The second broad class of procedural obligations associated with the common law, Charter s.7
and the Bill of Rights is the right to an unbiased decision maker.
Here the material deals with bias stemming from individual conduct (attitudinal bias or
prejudgment; pecuniary interests; past conduct etc.). Here too there are tests for exactly what
rule barring bias applies to a given administrative decision-maker. There is not just one
universal standard, especially when it comes to alleged prejudgment or attitudinal bias. These
readings will help you understand what the tests are and where they apply.
The materials also deal with independence or institutional bias. A word of warning: do not rush
to the assumption that independence rules ow from all instances where procedural
entitlements might be owed. It would be wrong, for example, to urge that where a statute
creates an administrative regime that you think is insufciently independent, common law
procedural fairness can be used to attack this arrangement. Be attentive to the discussion at
547 and 548. The common law cannot prevail over a statute. And so, your independence
argument would have to be based on a s.7 Charter or Bill of Rights source, assuming these are
even triggered.
Everyone has some biases, so this principle cannot be absolute. Indeed, certain
decision-makers are chosen based on biases e.g. SCC judges chosen for their
commitment to Charter values.
The principle comes from the latin nemo judex in causa propria sua debet esse
no one ought to be a judge in his or her own cause.
The inquiry then becomes what levels of advocacy or adherence to particular
causes or points of view should be seen as disqualifying. But, it is also concerned with
associations that are likely to produce predispositions professional, familial, or other
personal links with the persons/groups (and their advocates) who are parties to the
proceedings or who stand to benefit or suffer from the result. There is also the possibility
that the biased, but altruistic, decision-maker will err against the predisposition in an
attempt to be impartial.
How does one know that actual bias exists? This would be an inquiry into the
state of mind of the decision-maker. This is not only next to impossible, but to evaluate
it (by testimony and cross-examination of the adjudicator) would violate many principles
of decision-making.

38

As a result, the court tries to objectively assess whether the particular situation is
such as to give rise to a sufficient risk that an impermissible degree of bias will in fact
exist. In fact, in the case of a direct stake in the outcome, that has always been enough
to disqualify a decision-maker regardless of mitigating circumstances.
The objective approach also reflects the policy that the public should have
confidence in the process: It is of fundamental importance that justice not only be done,
but should manifestly and undoubtedly be seen to be done. (Lord Hewart CJ in R v.
Sussex Justices, ex parte McCarthy, [1924])
Sliding Scale The courts tolerance will also vary with the statutory context.
What may seem dictated in the case of a generalist superior court operating within a
system of a strict separation of functions and presiding over and deciding cases in
solitary splendour in the context of the adversary system may not be appropriate for all
the great variety of administrative agencies that are subject to the dictates of procedural
fairness. Adjudication may only be a small part of the range of functions performed. The
members may be appointed from and continues to operate in a small community of
experts or peers and may be expected to engage in collegial or collective decision
making. Their processes may be far less adversarial and more inquisitorial and activist.
Their decision making may have an explicit and high policy content. For example,
municipal politicians may deserve more latitude than human rights adjudicators. On the
other hand, previous involvement may not disqualify someone from sitting on a
disciplinary board of a profession or on a peer tenure committee.
The issue of bias has been largely left to the common law, except in cases where
the statute specifically mentions qualifications or disqualifications. However,
constitutional norms have arisen that may supersede the common law or statute in either
direction.

Bias: The General Test


The general test applied by Canadian courts for the determination of whether an
adjudicator or other decision-maker should be disqualified is that of a reasonable
apprehension of bias as stated for the first time by Justice Grandpre in Committee for
Justice and Liberty v. National Energy Board:
The apprehension of bias must be a reasonable one, held by
reasonable and right minded people, applying themselves to the question and
obtaining thereon the required information. The test is: what would an informed
person, viewing the matter realistically and practically and having thought the
matter through conclude?
Of somewhat more practical importance, however, is the question what
knowledge is to be attributed to the observer of events. While this obviously involves a
fictional construct, it may have a considerable impact on the evidence adduced by the
parties and the admissibility of and relevance attached to that evidence by the court.
Unfortunately, the Canadian courts have not been at all that consistent in the
knowledge that is to be attributed to the reasonable bystander.
R v Inner West London Coroner Ex Parte Dallaglio [1994]

39

LJ Brown summarises Gough propositions:

1.
Any court seised of a challenge on the ground of apparent bias must ascertain
the relevant circumstances and consider all the evidence for itself so as to reach its own
conclusion on the facts.
2.
It necessarily follows that the factual position may appear quite differently as
between the time when the challenge is launched and the time when it comes to be
decided by the court. What may appear at the leave stage to be a strong case of justice
`not manifestly and undoubtedly being seen to be done', may, following the court's
investigation, nevertheless fail. Or, of course, although perhaps less probably, the case
may have become stronger.
3.
In reaching its conclusion the court `personifies the reasonable man'.
4.
The question upon which the court must reach its own factual conclusion is this:
is there a real danger of injustice having occurred as a result of bias? By 'real' is meant
not without substance. A real danger clearly involves more than a minimal risk, less than
a probability. One could, I think, as well speak of a real risk or a real possibility.
5.
Injustice will have occurred as a result of bias `if the decision-maker unfairly
regarded with disfavour the case of a party to the issue under consideration by him'. I
take `unfairly regarded with disfavour' to mean `was predisposed or prejudiced against
one party's case for reasons unconnected with the merits of the issue'.
6.
A decision-maker may have unfairly regarded with disfavour one party's case
either consciously or unconsciously. Where, as here, the applicants expressly disavow
any suggestion of actual bias, it seems to me that the court must necessarily be asking
itself whether there is a real danger that the decision-maker was unconsciously biased.
7.
It will be seen, therefore, that by the time the legal challenge comes to be
resolved, the court is no longer concerned strictly with the appearance of bias but rather
with establishing the possibility that there was actual although unconscious bias.
8.
It is not necessary to demonstrate real possibility of bias, what must be
established is a real danger of bias having affected the decision in the sense of having
caused the decisionmaker, albeit unconsciously, to weigh the competing considerations,
and so decide the merits, unfairly.
It is useful to break down the disqualifying conditions into four categories:
a. Antagonism during a hearing by a decision-maker toward a party or his or her
counsel or witnesses;
b. An association between one of the parties and a decision-maker;
c. An involvement by a decision-maker in a preliminary stage of the decision;
d. An attitude of a decision-maker toward the outcome.

Antagonism During the Hearing


This categorys most common manifestations are unreasonably aggressive
questioning or comments about testimony.
Such conduct may also manifest into an attitude toward the issue to be decided.

40

In Yusuf v. Canada (Minister of Employment & Immigration), members of a panel


of the Immigration and Refugee Board had engaged in injudicious cross-examination
(involving harassing and unfair comments) of a Convention refugee claimant.
Additionally, as we saw in Baker, antagonism may also be a problem in written or
paper hearings that is, the court may disqualify a decision-maker who reveals in the
course of a paper hearing an antagonism toward a party of a lack of sympathy with
legislative objectives.
The requirement of balanced and proper behaviour during the hearing also
reaches lawyers who are employed to assist a tribunal at the hearing. In Brett v. Ontario
(Board of Directors of Physiotherapy), during the course of the hearing, counsel had told
the lawyer presenting the case against the member subject to discipline when to object
to questions, when to put forward arguments favourable to the prosecution, and
suggested to the prosecutions witnesses answers to questions that assisted the
prosecutions case.

Association between Party and Decision-Maker


There may be a category of association between the decision-maker and one of
the interested parties, interested persons. E.g. Convent of the Sacred Heart v.
Armstrongs Point Association and Bulgin co-owner of a residence was the members
wife who was a member of the executive of a ratepayers group that opposed the
modification decision quashed.
The rule against bias would generally prohibit the decision-maker from hearing a
case involving a friend, a business colleague, a family member, close professional
associate, even a rival -- all of the kinship type of relationships.
But there are other types of relationships happening in administrative law context
due to unique nature (often highly specialized) of tribunals.
In admin law we need some flexibility with respect to bias, because of this unique
structuring of admin tribunals: Marques v. Dylex Ltd. [1977].
An employer challenged a decision of the Ontario Labour
Relations Board to certify a union because one of the members of the Board,
who had been a lawyer before his appointment, had been a member of a firm
that acted for a union that became part of the union that was certified.
The challenge by the employer failed. Judge Morden said:
The vice-chairman had nothing to do with any
aspect of the present proceedings, as part of his association with the law
firm or otherwise, and neither did the law firm itself during the currency of
his association with it Almost a year had elapsed since his connection
with the law firm terminated The fact that a Judge in similar
circumstances would not, I would think, have heard the case is not
determinative We can take judicial noticethatthe Government of
Ontario looks to people with such a background in making appointments.
Most, if not all of those appointed, are bound to have some prior
association with parties coming before the Board.
CNG Transmission Corporation v. Canada (National Energy Board)

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A meeting took place between representatives of one of the


parties to a proceeding and representatives of the National Energy Board (the
chair, a member and counsel to the Board).
This encounter, in which matters relevant to the ongoing
proceedings were discussed, was held by Judge Cullen to have produced a
reasonable apprehension of bias, a finding that was reinforced by the fact that,
among the representatives of the part was a former chair of the Board.
In seeking the meeting, the former chair has not gone through the
Boards secretary as required by the relevant protocol, but had contacted the
present chair personally.

Involvement of Decision-Maker in Earlier Stage of Process


Committee for Justice and Liberty v. National Energy Board degree of involvement of the
decision-maker is directly proportional to a reasonable apprehension of bias.
An application was made under the National Energy Board Act to the National
Energy Board by Canadian Arctic Gas Pipeline for construction of a national gas
pipeline.
The Chairman of the Board at the time of the application was Marshall Crowe,
who had been president of Canada Development Corporation before his appointment.
The application, the Arctic Gas Pipeline Company, was formed in November
1972 but a study group of companies interested in constructing a pipeline from the
north. This study group was formed in June 1972, and Canada Development
Corporation became a member in the following November.
Crowe had been involved in discussions and planning from the time the Canada
Development Corporation became a member until he left to join the Energy Board.
Some of the participants in the hearing claimed that this apparent commitment to
a pipeline created a reasonable apprehension of bias, and a majority of the Supreme
Court agreed.
Justice Laskin stated the following: The vice of reasonable apprehension of
bias lies not in finding correspondence between the decisions in which Mr. Crowe
participated and all the statutory prescriptions but rather in the fact that he participated
in working out some at least of the terms on which the application was later made and
supported the decision to make it. The Federal Court of Appeal had no doubt that Mr.
Crowe took part in the meetings and in the decisions taken whichdealt with fairly
advanced plans for the implementation of the pipeline project.
Township of Vespra v. Ontario (Municipal Board) a Board hearing a matter which has
connections to an earlier matter that the exact same Board had heard and decided, in itself,
does not give rise to a reasonable apprehension of bias.
This case was a sequel to the Innisfil case.
Barrie came to an agreement with Innisfil and decided not to proceed with the
application to annex the land in Oro. Therefore, only the application to annex the land in
Vespra remained.
The hearing began again in early 1983, and the members of the Board were the
same members who had made the original decision.

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Vespra objected that their presence created an apprehension of bias, but the
hearing continued despite this objection.
However, the Board refused to receive any new evidence because of a deadline
imposed by the Municipal Boundary Negotiations Act.
As a result, the Board made a decision on the merits, and Vespra made an
application for review and succeeded, because the refusal to hear evidence was
considered to be a denial of the obligation to give a hearing.
Judge Smith, sitting in the Ontario Divisional Court, said: Standing alone,
these emphatic expression of opinion (made by the Board in its reasons for decisionsomitted) on the part of the panel would not lead this court to a conclusion that there was
a reasonable apprehension of bias. But, when there is added to those strong statements
the actual decision of 1983 made without jurisdiction and contrary to natural justice,
based upon the evidence of 1976 without regard for any change in circumstances in the
intervening seven-year period and, in particular, without evidence of population
projections, the government policy having lost its relevancy, the reasonable
apprehension of bias by Vespra is inevitable in our view.
Law Society of Upper Canada v. French
The governing body of the Law Society of Upper Canada was the benchers, and
allegations of misconduct were heard by the Discipline Committee.
Sec. 33(12) of the Law Society Act provided that if the Committee found a
member guilty of misconduct, it was to give a copy of its decision to the member,
together with notice of his right of appeal. Sec. 37 gave the Committee power to
reprimand the lawyer, and sec. 34 gave Convocation (the assembly of benchers) power
to order disbarment or suspension. Sec. 39 provided that a member reprimanded under
sec. 37 could appeal to Convocation and members of the Discipline Committee could
not participate in considering the appeal.
The Discipline Committee heard allegations of professional misconduct against
French, found him guilty of seven of them, and recommended suspension.
Convocation met to consider this recommendation and two members of the
Committee were present.
French objected to their participation; he was granted an adjournment and made
a motion for review. He succeeded and an appeal to the Supreme Court was allowed.
Frenchs claim was that the proceeding in Convocation was essentially
consideration of an appeal from the Discipline Committee, and therefore, the
participation of the two members created an apprehension of bias.
One argument for the Society was even if the proceedings were an appeal, the
maxim expression unius est exclusion alterius permitted the members to participate.
Sec. 39 prohibited committee members from participating in one kind of appeal,
therefore, implicitly permitting them to participate in others.
Justice Spence, writing for the majority, accepted this argument. Considering the
question of the nature of the proceeding, Spence concluded that Convocation was not
considering an appeal. He said that the discipline process was a single proceeding in
which there are two stages: First, the inquiry and the investigation into the complaint by
the Discipline Committee, the results of which are embodied in a report to the benchers;

43

and secondly, the consideration and disposition of the report by the Benchers in
Convocation.
That being so, he stated: I can see no basis for the submission that the
Benchers who were members of the Discipline Committee would be precluded from
participating in the deliberations of the Benchers in Convocation.

Statutory Authorization
Common response to allegation of bias by prior involvement is statutory authorization defense.
When you have the governing statute create a scheme that provides for the possibility of bias.
Happens when a regime is set up where administrative agency has a dual or a number of
competing functions.
Brosseau v. Alberta (Securities Commission) [1989]
Facts: Brosseau was a solicitor who prepared the prospectus of a company that
later went into bankruptcy. The Alberta Securities Commission launched an investigation
into Brosseaus actions. Brosseau argued that the Commission suffered from institutional
bias due to Chair's multiple functions, which allowed him to initiate investigations,
prosecute people, and then act as a judge on the panel determining their case, i.e.
he/she involved at both the investigatory and adjudicatory levels. The Commission
disagreed they argued that while not specifically authorized by statute, implicit
authority for the investigation could be found in the general scheme of the Securities Act.
Reasoning: L'Heureux-Dub, writing for the court, held that as a general
principle, a person is entitled to an independent, impartial decision-maker, the nemo
judex in causa sua esse principle. In general, it is not permitted for members of an
adjudicatory panel to also be involved in the investigatory stages of a proceeding, as this
would give rise to a reasonable apprehension of bias.
However, statutory authorization for overlapping functions are an
exception to this rule, subject to the statute being constitutional. Administrative
bodies are created for a variety of reasons and to respond to a variety of needs.
In some cases, the legislature may decide that in order to achieve the ends of the
statute, it is necessary to allow for an overlap in functions that would, in normal
judicial proceedings, have to be kept separate. If a certain degree of overlapping
of functions is authorized by statute, then, to the extent that it is authorized, it will
not generally be subject to any reasonable apprehension of bias test.
Ratio: In some instances, an overlap in functions (which is generally not
permitted on account of bias) is a necessary element to fulfilling an decision maker's
mandate. Provided that the particular decision-maker is not acting outside its statutory
authority (and the governing statute is constitutional), an overlap in functions may not
give rise to a reasonable apprehension of bias.
E.A. Manning Ltd. v. Ontario Securities Commission [1995]
Facts: OSC drafts staff report which discusses complaints against penny stock
dealers. OSC issues Policy Statements which says that penny dealers are bad & names
Manning & Ainsley. Policy Statement later struck down by Ainsley decision as OSC had

44

no statutory authority to make binding Policy Statements. Manning claims PF violation


b/c of bias due to earlier policy statement - argues that no hearing can ever be held.
OntDivCt Holding: OSC prejudged case before Notices of Hearing. Any preDec93 Commissioner had RAB & could not sit on panel. Okay for staff to investigate &
decide penny stock dealing was bad - not okay for staff to issue binding Policy
Statements. Brousseau distinguished as OSC never had statutory authority to issue
biased binding Policy Statement.
OntCA Holding: Affirms most of OntDivCt holding.
No Corporate Taint: any pre-Dec93 Commissioner tainted by RAB,
but anyone appointed after Dec93 was okay.
Presumption of Impartiality and Fairness: New commissioners
allowed to sit on panel. No corporate taint - bias is attitude of mind unique to
individual (note later cases which sort of overturn this).
2747-3174 Quebec Inc. v. Quebec (Regie des permis dalcool) [1996] the roles of prosecutor
and adjudicator can never be overlapped even if statutorily authorized.
MacBain v. Canada (Human Rights Commission) [1985]
Commission appointed investigator if the Commission was satisfied that the
investigators report substantiated the complaints, it could adopt it as its own the
Commission also appointed the Tribunal who would hear the case = overlap b/w
prosecutor and adjudicator the same body was responsible for appointing both

Attitudinal Bias
Paine v. University of Toronto [1980]
No bias when panel to determine professor tenure included member that had
published negative review of professor as members of the Tenure Committee are
tenured members of the professional staff of the candidates department, or a cognate
department. As a matter, of course, they must all, in the course of their association with
the candidate, have formed general opinions as to his suitability for tenure, and it makes
little difference whether that opinion was expressed before or at the meeting of the
committee.
The Tenure Committee does not sit as a tribunal, acting only on the evidence
placed before it. The members act on their own knowledge of the candidate, as well as
the assessments and references that are provided to them.
Great Atlantic & Pacific Co. of Canada v. Ontario (Human Rights Commission)
Being an advocate for a certain cause will not automatically render you bias.
However, if you are a party to a proceeding in which you are advocating a cause which
is before you in current proceedings, you are apprehended to be bias.
Large v. Stratford (City)

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A reasonable apprehension of bias is not raised because a person advocated a


certain cause to hold otherwise would, in effect, disqualify many qualified applicants
who are knowledgeable in the field especially human rights law.

Pecuniary and Other Material Interests


The common law has always treated a direct pecuniary or other material interest
in the outcome of a matter as disqualifying an adjudicator or decision-maker
automatically. Moreover, that rule is not to be confined to a cause in which he is a party,
but applies to a cause in which he has an interest.
For the longest time, it was accepted that even the slightest whiff of a financial
interest was sufficient to disqualify. However, the English Court of Appeal has sensibly
recognized the de minimis exception Locabail (UK) Ltd v. Bayfield Properties Ltd.
Energy Probe v. Canada (Atomic Energy Control Board)
AECB was considering application by Ontario Hydro to renew the operating
licence for a nuclear generating station operated by Ontario Hydro; Energy Probe
objected to the participation of one board member, Olsen, alleging he was a president of
the company that supplied cables to the nuclear power plant; he was also a member of
the several organization that supported the use of nuclear power; the Energy Board
rejected the bias objections and renewed the licence.
A contingent interest of potential and uncertain pecuniary gain does not
constitute bias
Analysis: you should look at the interest that flows from the decision, be it direct
or indirect, at the degree of relationship: how remote, how contingent, how effective is
the interest;
The only requirement should be that the benefit that comes from the decision
would have enough of an effect to colour the case in the decision-makers eyes;

Variations in Standards
The standard of what constitutes disqualifying bias may vary dramatically with
context. This is particularly so in the arena of prior involvement with and attitudes toward
a matter to be decided.
Old St. Boniface Residents Association Inc v. Winnipeg (city) [1990]
Doctrine of legitimate expectations applies only where there is an absence of
procedural fairness which are due in the circumstances of the case however, if
procedural safeguards already exist, and the court deems them to be sufficient given the
circumstances, the legitimate expectations must give way to was is provided for and
given in the circumstances
Reference Re Canada Assistance Plan
Court established two principles in this case:

46

Doctrine of legitimate expectations does not give rise to


substantive rights; and
Doctrine cannot be applied to a legislative body in its statutorymaking function.
Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities)
[1992] (the "consumer advocate who hated utilities shouldn't be appointed to the Utility Board
because now he's clearly anti-utility and pro-consumer" case).
Under test for the reasonable apprehension of bias, what is "reasonable" varies
greatly depending on the nature of the tribunal.
Therefore, behaviour that would disqualify a member of an adjudicative tribunal
may be perfectly acceptable in a member of a tribunal whose decisions are policy-based
or whose functions approach the legislative end of the spectrum.
Here, the consumer advocate was appointed for a purpose, so there should be
no surprise if they act according to their biases.
Pelletier v. Canada (Attorney General) [2008]
Facts: Gomery granted media interviews during course of inquiry. Chretien
asked Gormery to recuse himself based on certain comments made in media. G
dismissed motion and issued report setting out commissions findings. C and P sought
judicial review to set aside commissioners findings on basis of reasonable apprehension
of bias.
Court held that C and P entitled to high degree of fairness due to potential
damage of findings to their reps.
Court applied the reasonable apprehension of bias test and found that there is
sufficient evidence to find that an informed person, bring the matter realistically and
practically and having thought the matter through would find a reasonable apprehension
of bias on the part of the Commissioner. Gs comments indicate that he prejudged
issues and was not impartial towards C and P.
The media is not an appropriate forum in which a decision-maker is to become
engaged while presiding over a commission of inquiry, a trial or any other type of hearing
or proceeding. Indeed the only appropriate forum in which a decision-maker is to
become engaged is within the hearing room of the very proceeding over which he or she
is presiding. Comments revealing impressions or conclusions related to the proceedings
should not be made extraneous to the proceedings, either prior, concurrently or even
after the proceedings have concluded. I stress that even in public inquiries where the
purpose of the proceedings is to educate and inform the public, it is not the role of
decision-makers to become active participants in the media.

Independence
Independence is different from Bias, when applied to tribunals and decision makers. Ask
whether decision makers are independent enough so that they can make decision w/o fear of
retribution.
Sethi v. Canada (Minister of Employment and Immigration) [1988]
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Facts: the immigration regime was under revision and the government
promulgated the bill to revamp the whole system; and the bill that was considered by
Parliament would have effectively fired or terminated all the immigration appeal board
members; they would have lost their appointments and they would all have to be reappointed;
Mr. Sethi argued that this situation of first and then second reading was going to
create a bias on the part of the tribunal bias; he suggested that the board members
would want to favour the political masters if decisions that would make the government
happy, keep down the number of refugees; the case was appealed up to the FC; one of
the parties to the process was the government itself;
Federal Court Trial Division: Found that the proposed legislation would undercut
the financial security of the tribunal members and that created a reasonable
apprehension of bias;
Federal Court of Appeal: Reversed the decision of a trial level; applied a
reasonable apprehension of bias test and found that no right-minded person viewing
proposed legislation going through parliament would think that the tribunal members
would be impartial or lose their independence as a result of it.
Alex Couture Inc. v. Canada (Attorney General) [1991]
Facts: Alex Couture was merging with another business; they allege lack of
independence; they applied the Valente criteria.
In order to decide whether the guarantee of judicial independence has been
respected, three essential conditions must be analysed:
Security of Tenure - Decision Makers can only be fired for cause
and with certain procedural safeguards.
Financial Security - Decision Makers who are full-time board
members must be paid sufficient wage, so that they are not destitute & open to
bribes. Salaries must also be secure and cannot be arbitrarily reduced;
Institutional Independence - Structure must be independent decision makers cannot sit on two separate boards in front of which the same
individual appears. Judicial independence in its individual aspect is closely
related to the guarantee of impartiality:
Impartiality refers to a state of mind or attitude of
the tribunal in relation to issues and the parties in a particular case; the
tribunal members state of mind in a particular case; it connotes the
absence of bias;
The concept of independence refers not to a state
of mind, but the state of affairs; if it is dependant or independent; is the
tribunal independent from the executive?
Look at the tribunal structure in practice to determine independence, rather than
simply examining the statute - a tribunal may lack independence in theory, but not in
practice (CP v. Matsqui; similar to 2747 Quebec?). Where appeal process has never
been tested, courts should be reluctant to label it as lacking independence w/o first
seeing how it works in action.
All three criteria are assessed against a reasonable apprehension of bias test.

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The court applies all those criteria and finds that the competition bureau did have
sufficient security of tenure, sufficient financial security and enjoyed sufficient
independence.
Canadian Pacific Ltd. v. Matsqui Indian Band [1995]
Facts: the band has a taxation power; assessed tax against the entity; if entity
wants to appeal has to go through the appeal tribunal, the member of the band sits on
the appeal tribunal; the CP claim lack of independence of the tribunal;
SCC Lamer C.J.C.: The Valente criteria applies to admin tribunals when an
admin tribunal is acting in adjudicative capacity, settling disputes and determining rights
of the parties;
The test for institutional independence must be applied in light of the functions
being performed by the tribunal. The requisite level of institutional independence (i.e.
security of tenure, financial security and administrative control) will depend on the nature
of the tribunal, interests at stake and other indices of independence such as oaths of
office. In some instances, a high level of independence is required eg. Those tribes
whose decisions affect security of the person. More flexible approach is warranted on
this occ as it deals with assessment of property taxes.
In this case:
1. Security of Tenure: it was an ad hoc appointment;
2. Financial Security: members are not paid;
So the first two criteria show unavailability of the
security of tenure as well as financial security;
3. Institutional Independence: the tribunal members take oath and it
should be sufficient but the court rejected this argument on basis that tribunal
members are appointed by the Band Chief and Councils and are being asked to
adjudicate a dispute setting interests of the Bands against outside interests.
Shows vulnerability; no due process re:
appointments and remuneration; the third criteria, even though is
satisfied, is insufficient to make the tribunal independent.
2747-3174 Quebec Inc. v. Quebec (Regie des permis d'alcool) [1996]
Facts/Judicial History: Following a hearing, directors of the Rgie des permis
dalcool du Qubec revoked respondents liquor permits on the ground of disturbance of
public tranquility; the decision was provided for in ss. 75 and 86(8) of the Act respecting
liquor permits
Superior Court (Vaillancourt J.) granted:
That Rgies decision be quashed;
That s. 2 of the Act respecting liquor permits be declared invalid
because the Rgie did not comply with guarantees of impartiality and
independence of s. 23 QUEBEC Charter of Human Rights and Freedoms (there
is institutional bias on the part of the Rgie);
The Superior Court's declaration that s. 2 of the Act is invalid and
of no force or effect called into question the Rgies very existence, BUT the
court suspended the effect of this declaration for twelve months

49

Court of Appeal allowed appeal in part (Brossard, LeBel JJ.A.; Beauregard J.A.
partial dissent): declared s. 2 of the Act valid; majority declared reference to s. 75 in s.
86(8) of the Act invalid and of no force or effect, so the Rgies decision can be quashed
(s. 23 of the Charter is applicable if the Rgie is exercising judicial or quasi-judicial
functions)
Ratio: Some administrative tribunals may take on a quasi-judicial role. As such,
those tribunals may be required to comply with the principles of justice under general law
rules.
Notes: The court seemed to be satisfied that as long as the directors did not
serve merely at pleasure, they had enough independence. Compare this to Katz where
the fact that members of the board did not depend on that work for their livelihood
contributed to their independence. The practice was also to serve until voluntary
resignation or death.

8. Content of Procedural Obligations (Issues arising from


institutional decision-making)
CB 557-603; 607-610; 617-643

In this part, we deal with an area that has elements of both the right to be heard and the right to
an unbiased decision-maker: institutional decisionmaking. You need to understand the concept
of subdelegation. The delegatus non potest delegare ('one to whom power is delegated cannot
himself further delegate that power') concept sounds like a pretty potent bar on an
administrative decision-maker sub-delegating powers to another actor, but there are so many
circumstances where sub-delegation is permissible that, really, sub-delegation tends to be
important only when certain functions are sub-delegated that offend procedural rules. The
concept of he or she who hears is an example, tied to the right to be heard. This is an issue
that becomes complicated when large, multi-member boards are asked to make decisions that
are consistent while at the same time they sit to hear similar cases, but in panels with less than
full membership.
Another issue for these big boards, when they try to make consistent decisions, is when and
where bias concepts are offended.
Yet another issue raised by these materials is if these big board can use guidelines to try to
standardize decisions. If they do, do they wrongly fetter their discretion? (But note that
fettering of discretion is a substantive review issue, and so is really governed by the sorts of
considerations discussed in the next section.)
Strengths of institutional decisions are ability to make large volumes of decisions
and operations to establish internal checks and balances; specialization among staff and
a sharing of expertise, opinions and perspective.
Weaknesses of institutional decisions are general weaknesses of bureaucracy,
especially the large possibilities for anonymity, loss of authority by the senior levels and
impersonal treatment of those affected by decision.
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Objective is to design procedures to combine the strengths of both individual and


institutional decisionmaking.
Consider the 4 scenarios on page 558 and 559 of text

Delegation
Delegatus non potest delegare ('one to whom power is delegated cannot himself further
delegate that power'). Extent to which an authority may permit another to exercise a discretion
entrusted by statute to itself.
When is delegation permissible? Depends on interpretation of the relevant statute. Prima facie,
a discretion conferred by statute is intended to be exercised by the relevant authority and noone else. I.e. power delegated to you personally. But is there other language that means it is
power delegated to you personally or any person authorized by you.
Vine v. National Dock Labour Board [1957] (Eng. HL) - authority for proposition that power to
discipline cannot be delegated
Facts: Board allocated dock workers to stevedoring companies. Vine assigned
but didnt show up. Stevedoring company complained and discipline committee of the
board ordered Vine discharged. He said wrongful dismissal and discipline committee
action was void as Board could not delegate its disciplinary powers.
LORD SOMERVELL: Disciplinary powers, whether "judicial" or not, cannot be
delegated
VISCOUNT KILMUIR LC: It is necessary to consider the importance of the duty
which is delegated and the people who delegate:
This duty in this scheme is too important [outlawed from
profession for life] to delegate unless there is an express power.
It was permissible if it had stated so in the statute, but that is
absent here.
To have authority to appoint someone, it needs to be explicitly
provided

Deciding Without Hearing


Duty of fairness general principle that only those members of an agency who hear a particular
case may decide it. A person is denied an adeq opportunity to influence the decision if unable
to address directly those who participate in making it.

Delegating the Duty to Hear


Local Government Board v. Arlidge [1915] (Eng. HL)
Facts: Borough councils had power to make orders to close dwelling houses unfit
for human habitation and to revoke if corrective measures taken. Owners have right to
appeal to local govt board. This board had power to determine own procedure for

51

appeals, provided it could not dismiss an appeal without holding a public local inquiry.
Closing order against A who appealed to board. Board appointed an inspector who held
public enquiry and made a report. A asked to present case to the actual decisionmaker
in board but refused and confirmed order.
VISCOUNT HALDANE: Minister at the head of the board is expected to obtain
his materials vicariously through his officials, and he has discharged his duty if he sees
that they obtain these materials for him properly. To do everything personally would be
to impair his efficiency.
LORD SHAW: Ministerial is responsible to parliament, but the minister must be
able to delegate
NOTE: In Canada, some decisions exceptionally require the minister's personal
decision
Jeffs v. New Zealand Dairy Production and Marketing Board [1967]
Facts: Board had power to define zones from which factories could get milk.
Board set up committee set up to look into supply to two dairy companies. Committee
had a hearing and wrote a report with recommendations and the board accepted them
without alterations. Farmers argued this was an improper delegation.
Court: Clear that board did not delegate to committee the duty of deciding on
zoning applications. Committee appointed to investigate and report not charged with
duty of collecting evidence for consideration by board.
Only material the board heard was report. It had a duty to hear interested parties
(this can be by written statement as well) but did not do so. Whether the board heard the
interested parties orally or by receiving written statements from them is a matter of
procedure. Whether the board appointed a person or persons to hear and receive
evidence and submissions from interested parties for the purpose informing the board of
the evidence and submissions is also a matter of procedure. But not permissible if
credibility of witnesses is involved.
In this case, they did not adopt this procedure. Committee not appointed by
board or asked by board to receive evidence for transmission to the board. Committees
report did not state what evidence was and board reached decision without
consideration of and in ignorance of the evidence. Board failed to hear interested
parties as it was under an obligation to do to discharge obligation to act judicially in
determination of zoning applications.
Implied that it is permissible to delegate the evidence-acquiring process if
credibility is not an issue.
Summary is of the relevant evidence and submissions is acceptable if it
adequately discloses the evidence and submissions to the board.
If there had been a clear delegation of authority and appropriate directions to the
committee, it would have been more likely that the process would have been upheld

Consultations Among Agency Members

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Whether, and if so, to what extent the duty of fairness precludes members of an agency panel
who heard case from discussing it with other members after hearing has ended, but before
rendering decision.
International Woodworkers of America, Local 2-69 v. Consolidated-Bathurst Packaging Ltd.
[1983] (the "full-board meeting to maintain coherence in Board decisions on union-employer
disputes violated natural justice because adjudicative independence of board members was
breached" case) Wikipedia link
Gonthier J. for majority holds the full board meetings as practiced by the board,
even including members not sitting on the panel, does not impinge on the ability of panel
members to decide according to their opinion so as to give rise to a reasonable
apprehension of bias or lack of adjudicative independence
Audi alteram partem ("hear the other side") imposes conditions on full board
meetings:
Can't discuss facts, take minutes, and can only discuss policy;
Must disclose any new grounds and allow for representations
based on those new grounds.
Here, the decision-makers, while possibly being "influenced" by persons who
haven't heard the evidence, still have the freedom to decide according to their own
opinions and must assume full responsibility for the final decision, so there's no undue
pressure
Sopinka J. in dissent found that the effect of full board meetings would unduly
influence junior members, which creates a reasonable apprehension of bias, and
treating policy as 'law' is incorrectshould be treated like 'fact' for new submissions
Tremblay v. Quebec (Commission des affairs sociales) [1992] (the "first draft favoured us, but it
was sent to the President of the Commission who disagreed, and after he raised this opinion at
the "consensus table", one of original members changes his mind and leads to our denied
claim" case)
While a consultation process by plenary meeting designed to promote
adjudicative coherence may be acceptable (ie: Consolidated-Bathurst), the process must
not impede the ability or freedom of the members to decide according to their own
conscience/opinion or to create an appearance of bias in the minds of the litigants.
Here, the mandatory consensus table practice of the Commission, with minutes,
and votes, the President of the Commission present, and not created by statute, was
indicative of coercive consultation that breached the rules of natural justice and created
a reasonable apprehension of bias.
Ellis-Done Ltd v. Ontario (Labour Relations Board) [2001] this case dealt with the tension b/w
the fairness of the procedure used in decision-making and the principle of deliberative secrecy
the court held that the presumption of administrative regularity cannot be overturned w/o an
evidentiary foundation talks about hardship in establishing evidentiary foundation given
deliberative secrecy
A party to an administrative breeding recessives an adverse decision by a panel
of three members. Later, it learns about a draft of the decision in which the result is that

53

it won, but that the panel changed its mind after meeting with the other members of the
tribunal who did not hear the case. The court sets out the circumstances as to when
such "full" meetings are appropriate.
Note:
Deliberative secrecy is a principle that the decision speaks for
itself;
That the decision making process, the deliberations of decision
makers are protected, that they are secret;
If you want to impugn, you impugn the reasons for the decision,
not how the decision maker achieved it in his or her mind;
Conclusion:
In the above case the majority is skirting about what is policy and
what is fact;
They are rooting themselves in the presumption of regularity: that
admin tribunals will conduct their meeting in a regular and proper fashion;
They are protective of deliberative secrecy.

Agency Counsel
Lawyers or staff involved in investigations and prosecutions should not also be engaged in
assisting those who adjudicate, particularly in the instance of files with which they have had
prior involvement (see Quebec Inc. v. Quebec (Regie des permis dalcools))

At the Hearing
Tribunals (particularly ones without a member with a legal background) often
have counsel to advise on admissibility of evidence, procedure or other questions of law.
Problem is that counsel may overstep role of adviser to assume functions more
appropriate for the chair or other members of the tribunal, e.g., making rulings,
intervening to raise issues or question witnesses. Could create impression that a
reasonable observer might conclude that someone other than the person authorized by
statute is the decision maker, i.e., can challenge for bias (e.g. Venczel v. Association of
Architects).
Degree of intervention permitted may depend on the nature of the proceeding
adversarial proceeding, less active intervention on part of tribunal counsel likely to be
allowed by duty of fairness than in a proceeding that is more inquisitorial, e.g.,
Convention refugee determination hearing where hearing officer questions claimant to
ensure panel has the full story.
Also, counsels interventions might be seen to favor one side over another (Brett
v. Ontario (Board of Directors of Physiotherapy)) - counsel had advised lawyer
presenting case against the member when to object to questions and when to put
forward arguments in favour of the prosecution).

54

Note need to make objection known at the time otherwise, if you get to judicial
review the court might hold acquiescence.

The Preparation of Reasons


Writing reasons for a decision can be onerous and daunting for members of
many administrative tribunals. How far may tribunals take advantage of expertise of
their staff (incl counsel) in the preparation of reasons for the decision without breaching
some aspect of d of f delegation doctrine and apprehended bias in particular?
To what extent is giving of reasons a function that must be performed personally
by decision makers rather than bureaucratically via use of counsel?
Black letter law: First, decision must be that of the tribunal members themselves.
Therefore if counsel retires with tribunal while it deliberates w/o consent of parties may
create reasonable apprehension of bias. Second, reasons for decision must be ins
substance those of the tribunal members, not clerks or counsels.

Problems with tribunal members writing own reasons:


Re Del Core and Ontario College of Pharmacists: courts should
not be overly critical of language employed by bodies and seize on a few words
as being destructive of entire disciplinary process. i.e., tribunal members wont
draft in legalese.
Courts have permitted tribunal to seek assistance of counsel (or
other staff members) in the prep of the statement of their reasons for decision.
Armstrong v. Canada (Commissioner of RCMP)
Note even though law clerk drafted reasons, they
were reviewed in draft by committee member who made changes and did
some drafting of the penalty. Final draft approved by all members.

Khan v. College of Physicians and Surgeons of Ontario [1992]


Dr. Khan found guilty in molesting a child; he was also charged with professional
misconduct and this case involves a discipline committee hearing, where the discipline
board decided to revoke his license to practice medicine. K appealed on basis that
discipline committee breached duty of pf by letting counsel pay so significant a part in
preparation of its reasons that it created a reasonable apprehension of bias.
Tribunal may receive outside assistance in writing reasons without undermining
the institutional independence of the tribunal.

Reasons Review
Some agencies employ lawyers to assist agency in its corporate capacity to
develop policy and oversee implementation by panels of the agency.
Bovbel v. Canada (Minister of Employment and Immigration) [1994]

55

Facts: Immigration and Refugee Board failed to find that Bovbel was a
Convention refugee. B argued that by referring a draft decision to counsel who was not a
member of the board and who hadnt participated in or attended hearing was contrary to
natural justice.
Motion Judge found that the Reasons Review policy of the Board (requiring them
to submit a draft of reasons for decision to legal advisers before issuing them to parties)
was enough to taint the decisions of the board as it created a reasonable apprehension
of lack of independence of board.
Internal documents make it clear that while lawyers may give advice, the panel
members must decide the case. Also, Boards lawyers may suggest that a case might be
better decided on different grounds but panel should not decide the case on those
different grounds if they werent raised at the hearing or unless parties given an
additional opp to comment.
Holding: A fair reading of the documents on the record shows, in our view that the
legal advisors were not to discuss the findings of facts made by the members but merely,
if there was a factual inconsistency in the reasons, to look at the file in order to
determine, if possible, how the inconsistency could be resolved.
True, there was always the possibility that the legal advisors might, since they
were in possession of the file, exceed their mandate and try to influence the factual
findings of the board. However, as mentioned by Manoney JA in Weerasinge, any policy
is susceptible to abuse.
Fact that there was a high volume of claim and a clear protocol for reasons was
sufficient for court to be satisfied that reasons after written by a tribunal could be
reviewed

Agency Guidelines
A trend in the last 20 years about a high volume of decision making and how to
allocate resources and responsibilities to be able to handle a high volume of cases or
complex cases;
Agency guidelines are typically promulgated by the tribunals with high volumes of
cases or complex cases;
Some agencies have very extensive guidelines and some have none at all;
Guidelines usually set out the overarching principles that should be considered
when applying or interpreting legislation.
Usually they are very general policy criteria, never an exhaustive statement of
the law.
Legal force of guidelines is always different and should be decided on a case by
case basis; you have to look at the documentary legal authority behind the guidelines:
are the guidelines issued by the tribunal as a result of a power stated in the a statute or
regulation, or are the guidelines issued simply as a result of the exercise of discretion,
etc.).
There is no rule if guidelines have legal force, you have to asses that on a
case by case basis;
It is individual to the tribunal and sometimes to the guideline. It will depend on
where it flows from: statute, regulations, etc., sometimes legitimate expectations.

56

Eg school board closure cases the guidelines gave rise to the legitimate
expectations;
The leading case on agency guidelines is Bell; it is unusual in that the court gives
guidelines a significant weight, it states that guidelines are akin to regulations, they are
indistinguishable from other types of law;
So when analysing the cases and seeing what is the documentary legal authority,
you have to also consider guidelines; as we seeing in the school board closure cases it
gave rise to legitimate expectations; in Baker they had significant weight in assessing
procedural fairness; in Bell they were given same force as regulations;
Pros and Cons of Institutional Decision Making through Guidelines:
Pros:
Consistency in decision-making;
Efficiency;
Complexity - to shed light on complex systemic issues (Bell case);
provide the framework for the analysis or criteria of how to work through the
policy issues of systemic implications of employment equity;
Cons:
The lack of personal attention to the clients; very impersonal; the
anonymity of the decision-maker;
Concern that guidelines, or institutional decision making
guidelines are really disguising law in policy (eg. new immigration act is much
smaller than the former one we are regulating through guidelines);
Leave a lot of discretion to the unofficial decision makers;
The disadvantage alleged by the employer in the Bell case: the
guidelines were binding or fettering the decision-makers independence if the
guidelines are so detailed, that they really can tie the division maker to a
particular outcome, then the concern is that the decision maker is being fettered.
Thamotharem v. Canada (Minister of Citizenship and Immigration) [2008]
Where a statute includes residual discretion, any rules made under delegated
authority must retain some of that discretion.
This applies to both regulations as well as soft law such as guidelines.

Substantive Review Materials


9. Backdrop to the Standard of Review Analysis
CB 673-677; 698-700; 706-719; 804-817 (up until discussion of Border)
We shift to the second major issue area in administrative law: review on substantive grounds.
Basically, substantive errors are errors of fact, law or discretion, although these are sometimes
labelled in different ways. (You will also see reference to errors of jurisdiction, although this has
meant different things at different times. Now, a true error of jurisdiction is something you
need to consider post-Dunsmuir. Dunsmuir is discussed below.)

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In this part, youll soon learn that simply looking at a decision and saying that it reects an error
of fact (a misapprehension of the facts), of discretion (a wrong choice or outcome) or of law (a
misconstrual of the law) is not enough. That is because substantive errors are all subject to
what is known as the standard of review, a very difcult and complex area of administrative
law.
Notice that we do not mention standard of review in our discussion of procedural entitlements.
That is because you do not do a standard of review analysis for procedural entitlements. It is
wrong to say you do with procedural fairness, you apply the rules discussed above.
In these background readings, you are introduced to the concept of a privative clause. Once
you
understand it and the courts efforts to get around such clauses youll understand at least
part of the initial impetus for standard of review analyses. Then, there is some history looking at
failed precursors to the standard of review analysis.

General Information
Substantive review is much harder to get than procedural review - the courts are generally
hesitant to overturn a tribunal's substantive decision unless there was bad faith or they
exceeded their jurisdiction.
Was a period of battle between legislature and Courts very narrow interpretation of privative
clauses by courts. This has eased recently.
Modern approach of SSC is to be more respectful of the comparative strengths of tribunals
and other non judicial actors and of legislative intentions regarding their expanded role. New
era that persists today was one where reviewing courts instructed by SCC to assess the extent
of their engagement with the administrative process from a pragmatic and functional
perspective. Respect for legislatures choice as to the decision-maker that was designated as
the primary vehicle for carrying out the statutory mandate. Also called for greater attention for
legislative signposts indicating restraint on the part of the reviewing courts, awareness of
expertise of may statutory regimes and the courts lack of working familiarity with detailed
working of those regimes. In the actual assessment of decision taken in the particular case, a
far more purposive or contextual approach to statutory interpretation.

Privative Clauses
Statutory provisions by which legislature purports to limit scope or intensity of judicial review. Of
a statutory decision-maker.
full or strong privative clauses use broad language to preclude any form of review by a
court while also establishing that decisions of the relevant actor are final and conclusive.

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weak privative clauses typically state that decisions of the relevant actor are final and
conclusive or that he has sole or exclusive jurisdiction in certain matters but dont expressly
preclude courts from any review of the decision-maker.
Interpretation of a privative clause may also depend on whether other provisions of the statute
provide for an appeal to the court from the decision-maker on questions of fact, law, mixed fact
and law, or another category of decisions. A privative clause cannot oust the authority of the
superior courts to carry out a judicial review on constitutional issues or its authority to ensure
that an administrator has not acted ultra vires.
Need to closely look at statute under which decision has been taken to determine the
appropriate route for any statutory appeal and to assess the likelihood that a court will show
deference to the decision-maker. Based on Dunsmuir one must review past cases in which
comparable decisions have been reviewed by a court in order to locate existing jurisprudence
on the standard of review.

Constitutional Limitation of Privative Clauses


Doctrine of decision in Crevier v. Quebec [1981] that the Constitution implicitly guarantees the
authority of the courts to review the decisions of administrative agencies for errors of law or
jurisdiction and for procedural unfairness.
Public statutory authorities have only those powers conferred on them by legislation and these
powers are legally limited. Ultimately role of courts to determine what those limits are,
especially when they affect rights of individuals.
Legislature cannot oust the courts power to review the decision of an administrative agency, or
its enabling statute, on the ground that either is beyond the constitutional capacity of that
legislature. Legislation that confers power on public authorities (and the public authorities in the
exercise of that power) are always subject to challenge on basis that there has been a disregard
of the division of powers between Parliament and the provincial legislatures provided for in ss
91 and 92 of the Constitution Act 1867.
Legislature also cant remove right to launch a constitutional challenge on grounds such as
violation of Charter or failure to observe other limits on legislative capacity in the Constitution
Acts 1867-1982, in other constitutional instruments and also in unwritten principles of the
Canadian constitution as recognised in Reference re Secession of Quebec [1998]
No express provision in Constitution Acts 1867-1982 that deals with power of courts to review
decisions of administrative agencies. This reflects the (British) Westminster style parliamentary
democracy so no Constitutional outline of separation of powers doctrine.
Claimed that a right to judicial review of administrative action should be implied in constitution
based on ss 96-101 of Constitution Act 1867:

59

96. The Governor General shall appoint the Judges of the Superior, District, and
County Courts in each Province, except those of the Courts of Probate in Nova Scotia
and New Brunswick.
97. Until the Laws relative to Property and Civil Rights in Ontario, Nova Scotia,
and New Brunswick, and the Procedure of the Courts in those Provinces, are made
uniform, the Judges of the Courts of those Provinces appointed by the Governor General
shall be selected from the respective Bars of those Provinces.
98. The Judges of the Courts of Quebec shall be selected from the Bar of that
Province.
99. (1) Subject to subsection (2) of this section, the judges of the superior courts
shall hold office during good behaviour, but shall be removable by the Governor General
on address of the Senate and House of Commons.
(2) A judge of a superior court, whether appointed before or after
the coming into force of this section, shall cease to hold office upon attaining the
age of seventy-five years, or upon the coming into force of this section if at that
time he has already attained that age.
100. The Salaries, Allowances, and Pensions of the Judges of the Superior,
District, and County Courts (except the Courts of Probate in Nova Scotia and New
Brunswick), and of the Admiralty Courts in Cases where the Judges thereof are for the
Time being paid by Salary, shall be fixed and provided by the Parliament of Canada.
101. The Parliament of Canada may, notwithstanding anything in this Act, from
Time to Time provide for the Constitution, Maintenance, and Organization of a General
Court of Appeal for Canada, and for the Establishment of any additional Courts for the
better Administration of the Laws of Canada.

Statutory Removal of Judicial Review


Crevier v. Quebec [1981] is a leading Supreme Court of Canada decision in administrative law.
The Court had to decide whether a Quebec-created Professionals Tribunal was unconstitutional
due to being a "s. 96 court" according the Constitution Act, 1867, whose members can only be
federally appointed. It found that any legislation which has a privative clause purporting to
exclude review of jurisdictional matters is outside the jurisdiction of a provincial legislature.
Facts: The decision examined the Professional Code, a Quebec statute which
governed 38 professional corporations. The law required each of the corporations to
establish a discipline committee in conformity with the code that would examine
allegations of professional misconduct.
History: The Quebec Court of Appeal had ruled that the law was not ultra vires
the Quebec legislature because it did not create a s. 96 court.
Opinion of the Court:
Laskin C.J., writing for a unanimous court, held that provincial
legislatures had no jurisdiction to impose a privity clause in order to shield its
tribunals from judicial review due to s. 96 of the Constitution Act, 1867:
[W]here a provincial Legislature purports to insulate
one of its statutory tribunals from any curial review of its adjudicative
functions, the insulation encompassing jurisdiction, such provincial

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legislation must be struck down as unconstitutional by reason of having


the effect of constituting the tribunal a s. 96 court.
lt is true that this is the first time that this Court has
declared unequivocally that a provincially-constituted statutory tribunal
cannot constitutionally be immunized from review of decisions on
questions of jurisdiction. In my opinion, this limitation, arising by virtue of
s. 96, stands on the same footing as the well-accepted limitation on the
power of provincial statutory tribunals to make unreviewable
determinations of constitutionality. There may be differences of opinion as
to what are questions of jurisdiction but, in my lexicon, they rise above
and are different from errors of law, whether involving statutory
construction or evidentiary matters or other matters. It is now unquestioned that privative clauses may, when properly framed, effectively oust
judicial review on questions of law and, indeed, on other issues not
touching jurisdiction. However, ... s. 96 is in the British North America Act
and ... it would make a mockery of it to treat it in non-functional formal
terms as a mere appointing power
This judgment stood in contrast to CUPE v. New Brunswick Liquor
Corp. [1979] decided only two years earlier. In that case, Dickson J., speaking for
a unanimous court, called for greater deference to administrative decisions and
to place less emphasis on jurisdiction.
Privative clauses purporting to oust judicial review are inconsistent with
s.96.: invalid.
Privative clauses that attempt to isolate tribunals like the professionals
tribunal from judicial review are unconstitutional.

The Preliminary Question Doctrine


Pre CUPE 1979, the courts allocated decision-making power between courts and administrative
agencies (that were protected by a privative clause) by attempting to distinguish between those
questions of law that were within the area of decision-making authority (jurisdiction) of the
agency, and those that were either preliminary to the exercise of the agencys jurisdiction, or
collateral to the merits of the decision. Despite privative clause, the court could intervene in
administrative process if it found that some condition precedent to the agencys exercise of its
jurisdiction was not satisfied. I.e., Determination of preliminary questions by administrative
agency were subject to review by court for correctness BUT questions of law w/in agencys
jurisdiction were immune from judicial review.
This is no longer used as deemed unsatisfactory in both theory and practice:
1. No test ever devised to id which questions of law were preliminary and which
were part of merits any question of statutory interpretation could be styled as
preliminary.
2. Search for preliminary questions distracted attention from substantive issues at
stake (matching institutional strengths of reviewing court and specialist agency on the

61

question in dispute and then weigh public interest of effective administration and
protection of constitutional values).
3. Doctrine lacked logical and policy coherence modest level of judicial craft
required to present an issue of statutory interpretation as preliminary.
The theoretical idea at the core of the doctrine has not been abandoned ie. that jurisdiction, or
decision-making power, of administrative agencies do not exceed the limits imposed by the
legislature on their authority to decide. Now you need to apply the standard of review analysis
rather than preliminary question doctrine.

Wrong Questions and Irrelevant Considerations


Decision of an administrative tribunal can be set aside as being outside its jurisdiction if, in the
course of making the decision, the tribunal had asked itself the wrong question, taken into
consideration legally irrelevant factors or ignored factors that it was legally required to consider.
Amisminic Ltd. v. Foreign Compensation Commission [1969] House of Lords in Eng. This has
never been fully embraced in Canada and this approach now only of historical interest.

Origins of the Standard of Review Analysis CUPE (1979)


This is the starting point on the standard of review of administrative agencies interpretation of
their legislation, when the legislature has expressly precluded the courts from reviewing their
proceedings or decisions.
The courts began to pay much more attention to statutory purposes and structures and the
sense they conveyed of the relevant tribunals expected areas of competence or expertise.
The question of what is or is not jurisdictional is often very difficult to determine. The courts, in
my view, should not be alert to brand as jurisdictional, and therefore subject to broader curial
review, that which may be doubtfully so. (Dickson J. in CUPE v. NB Liquor at 233.)
In the adoption of the pragmatic and functional approach, these are the leading cases:
CUPE v. New Brunswick [1979] (largely responsible for subsequent development
of pragmatic and functional approach);
Bibeault [1988] (goes over 2 standards of review: patent unreasonableness and
correctness);
Southam [1997] (To the 2 standards, the third one (reasonableness simpliciter) is
introduced);
Pushpanathan [1998] (fullest explanation of history of Pragmatic approach as
well as of the standards of review).
CUPE v. New Brunswick Liquor Corp., [1979] is a leading case decided by the Supreme Court
of Canada. This case first developed the patent unreasonableness standard of review in
Canadian administrative law.
Background:

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The unionized employees of the New Brunswick Liquor


Corporation, represented by the Canadian Union of Public Employees, went on
strike. During the strike the Liquor Corporation brought in the managers to do the
work of the strikers. The union brought a suit against the employers claiming that
their actions violated section 102(3) of the Public Service Labour Relations Act.
At the same time, the employer also claimed that the union was in breach of the
Act due to their picketing. The relevant section of the Act stated:
(a) the employer shall not replace the striking
employees or fill their position with any other employee, and
(b) no employee shall picket, parade or in any
manner demonstrate in or near any place of business of the employer.
The New Brunswick Public Service Labour Relations Board found
that the Liquor Corporation had violated section 102(3), and at the same time
found that the union had also violated the Act by picketing. The Board ordered
both sides to cease their actions.
The Labour Board came to this decision after noting that the
Legislature intended to restrict the possibility of picket-line violence by prohibiting
both strikebreaking on one hand and picketing on the other.
The Liquor Corp appealed the Board's decision. Difficulties arose
because of the privative clause in s. 101 of the Act, which declared that every
"award, direction, decision, declaration, or ruling of the Board ... is final and shall
not be questioned or reviewed in any court." Nevertheless, the Court of Appeal of
New Brunswick overturned the decision on reinterpreting the Act's provision.
CUPE then appealed to the Supreme Court.
The issue before the Supreme Court was whether Board's
decision was sufficiently incorrect to warrant overturning in the presence of the
privative clause.
The Liquor Corporation argued that the Act should be interpreted
as only preventing the replacement of employees "with any other employee".
Under the Act, the definition of "employee" excluded managers, and their acts
were therefore justified.
CUPE argued that the Act should be read so that replacement
"with any other employee" applied only to permanent arrangements, and that
temporary replacements were forbidden entirely even by non-employees.
Opinion of the Court:
Dickson J., writing for the unanimous Court, proposed a new
analytical framework to approach administrative decisions. He noted that the
existence of privative clauses indicated the legislative choice of empowering
specialized administrative bodies to decide certain matters such as labour
relations. Limited by such privative clauses, courts should only interfere if an
interpretation of the Act was "so patently unreasonable that its construction
cannot be rationally supported by the relevant legislation."
The Court held that the decision of the Labour Board was not
patently unreasonable and reinstated the Board's decision. The court found that
the section was "very badly drafted" and that it "bristles with ambiguities". The
wording of the statute allowed multiple plausible interpretations, including both
63

the Board's and the Court of Appeal's interpretation. As such, the decision of the
Board should be given deference.
Further, the Court attempted to clarify the issue of jurisdiction.
Dickson J. wrote that the preferable approach to jurisdictional problems is that
"jurisdiction is typically to be determined at the outset of the inquiry", but also
noted that:
The question of what is and is not jurisdictional is often very
difficult to determine. The courts, in my view, should not be alert to brand as
jurisdictional, and therefore subject to broader curial review, that which may be
doubtfully so.
This decision was a major shift in the approach to judicial review.
Prior to this decision, Canadian courts primarily concerned themselves with the
question of whether an administrative body had acted within its own jurisdiction.
If it was within the jurisdiction conferred upon it by the enabling statute, then its
decisions were generally upheld. If it was found to go beyond its jurisdiction, the
courts were free to overturn the decisions. This approach was often criticized for
being overly formalistic and often led to courts labeling questions as jurisdictional
without considering the reasons of the administrative decision-maker in question.
The new approach emphasized the need for deference in the
proper circumstances, often considering relative expertise of the body and the
legislative intention in creating such a body. In such cases where administrative
decision-makers are acting properly within their own jurisdiction, courts are told
to evaluate the decision on a standard of "patent unreasonableness".
Aftermath:
"Pragmatic and functional" analysis
In Union des Employes de Service, Local 298 v.
Bibeault the Supreme Court revisited the standard of review, elaborating
on what constitutes a jurisdictional question warranting a correctness
standard and what questions were within an administrative body's
jurisdiction warranting a patent unreasonableness standard.
There, the court developed the "pragmatic and
functional analysis" to determine which standard of review to use. This
analysis focused on the whether the legislature intended "the question to
be within the jurisdiction conferred on the tribunal."
Under this test, the court was examined four
factors:
The wording of the enactment
conferring jurisdiction on the administrative tribunal (including the
presence or absence of a privative clause);
The purpose of the statute creating
the tribunal;
The expertise of its members; and
The nature of the problem before the
tribunal.
Developments in standards of review

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The dichotomy between the correctness and


"patent unreasonableness" standards was criticized by some legal
commentators for its inflexibility. A third standard of review, that of
"reasonableness simpliciter", was added following the decision in Canada
(Director of Investigation and Research) v. Southam Inc., which fell
between the correctness and patent unreasonableness standards in
terms of deference.
The three standards, however, was difficult to apply
in practice and was unsatisfactory because it allowed certain
unreasonable but not patently unreasonable decisions to stand based
primarily on the perceived expertise of administrative bodies and judicial
deference. To address the issue, the Supreme Court in Dunsmuir v. New
Brunswick collapsed the patent unreasonableness and unreasonableness
tests into a single standard of reasonableness.

After CUPE: Evolution of the Pragmatic and Functional Approach


Not all questions of law arising from the interpretation of a decision-makers enabling statute are
said to warrant deference. That is so, per Dunsmuir, where the question of law is considered to
be of central importance to the legal system as a whole and outside the specialized expertise of
the decision-maker. So question of Jurisdiction is understood simply to be a question of law
which, based on a pragmatic and functional approach, attracts a correctness standard.
U.E.S. v. Bibeault [1988] first named the modern approach to the standard of review as the
pragmatic and functional approach while also rejecting the preliminary question doctrine.
The formalistic analysis of the preliminary or collateral question theory is giving way to a
pragmatic and functional analysis, hitherto associated with the concept of the patently
unreasonable error
Patently unreasonable error results in an excess of jurisdiction when the question at issue is
within the tribunals jurisdiction.
In the case of a legislative provision limiting the tribunals jurisdiction, a simple error will result in
loss of jurisdiction.

10.

Evolution of the Standard of Review Analysis

CB 723-737; 768-776; 821-831; 53-62; 954-963; 971-993


In this section, we build on the history lesson and have you read some more history, examining
some of the key cases developing some of the concepts that still remain important in modern
law not least the application of the pragmatic and functional test to errors of law and
ultimately discretion. But this is still history. Youre not at the current law yet.

The Decisions in Pezim and Southam

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Pezim v. British Columbia (Superintendent of Brokers) [1994]


Facts: Pezim and other respondents were taking charges before BCSC for
violating the timely disclosure provisions and insider trading. The BCSC found that
Pezim and other respondents failed to disclose material info but it did not find them guilty
of insider trading. The statute provided a right of appeal on questions of law with leave of
the court. The Court of Appeal looked at what BCSC has done in its decision and
decided that it was wrong in its conclusion in finding that the respondent was guilty in
failing to disclose the material information.
Issue: when a statutory right of appeal exists (but no privative clause), what
standard of review applies?
SCC (Iacobucci J. on behalf of unanimous court):
notes the primary goal of the Securities Act is to protect investor
but also other goals capital market efficiency and ensuring public confidence in
system.
Central question in determining standard of review is to determine
the legislative intent in conferring jurisdiction to the admin tribunal. To answer
look factors such as :
the role and the function of the tribunal;
existence of privative clause;
does the question go to the jurisdiction of the
tribunal involved.
Courts have developed a spectrum that ranges from the standard
of reasonableness to correctness.
Reasonableness end of spectrum (where deference by court is
highest) cases where tribunal is protected by a full privative clause
Correctness end of spectrum (where deference by court is lowest)
cases where issues concern interpretation of a provision limiting tribunals
jurisdiction.
In this case bar is between the two on one hand dealing with a
statutory right of appeal but it is from a highly specialised tribunal on an issue
that arguably goes to core of its regulatory mandate and expertise.
Even with statutory appeals and lack of privative clause there is
some degree of deference with respect to issues which fall squarely within the
tribunals area of expertise;
Notwithstanding the typical approach to right of appeal case
(standard of correctness), he says there should be some degree of deference to
tribunal when it operates within its area of expertise;
Finding having regard to the nature of the securities industry, the
Commissions specialisation of duties and policy devpt role as well as nature of
problem before court, considerable deference is warranted in the present case
notwithstanding fact that there is a statutory right of appeal and there is no
privative clause
Finding the majority of the C of A erred in failing to appreciate the commission's
role in an area requiring special knowledge and sophistication.

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Pezim stands for the proposition that where the administrative agency is
dealing with policy development or public policy issues that demands a higher degree
of deference;
In the next case we see the development of the reasonableness
simpliciter standard of review
Canada (Director of Investigation and Research) v. Southam Inc., [1997] is a leading decision of
the Supreme Court of Canada on judicial review. In this case the Court first set out the standard
of review of "reasonableness simpliciter", which directs the court to only review decisions that
are "not supported by any reasons that can stand up to a somewhat probing examination".
Background:
Southam Inc. purchased a number of small newspapers in the
Vancouver region. The Competition Bureau investigated the purchase as a
violation of the Competition Act. The Competition Tribunal held that Southam
violated section 92 of the Competition Act and ordered the company to sell off
one of the papers. The Tribunal found that the newspapers were not in the same
market with regards to print advertising markets. There was a decrease of
competition in real estate advertising and not the retail advertising market.
Southam appealed under section 13 of the Act to the Federal
Court of Appeal. The Federal Court of Appeal held that it owed no deference to
the Tribunal's finding that the markets were not the same and so it substituted its
own findings that the markets were the same. The Court refused to set aside the
remedy that had been ordered.
The issue before the Supreme Court was whether the Tribunal
warranted any deference by the reviewing court.
Judgment:
Justice Iacobucci, writing for a unanimous Court, held that the
appeal should be allowed but the remedy should stay.
Iacobucci J. considered four factors to determine the standard of
review from Pezim v. British Columbia (Superintendent of Brokers). There was a
statutory right of appeal but no privative clause, so the first factor indicated less
deference; however, the absence of a privative clause was not determinative. In
his view, the issue was one of mixed fact and law that was based on the
balancing of interests, so the courts should be reluctant to re-examine the
evidence. Iacobucci considered the purpose of the Act, which he stated was to
encourage and promote competition and equality among companies. In his view
this purpose was more economic policy than law and so suggests greater
deference. Finally, he considered the expertise of the Tribunal, which he
considered to be the most important factor. He found the Tribunal had expertise
in matters of economics and commerce which were critical in assessing the
question before the Tribunal and this required the courts to defer to their skill and
judgment.
With this analysis in mind, Iacobucci devised a standard of review
in between "correctness" and "patent unreasonableness". A standard of
"reasonableness simpliciter" was said to apply to decisions that are "not

67

supported by any reasons that can stand up to a somewhat probing


examination".

Applying the Standard of Review


Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998) is a leading decision
of the Supreme Court of Canada on the standard of review in Canadian administrative law. The
Court held that a decision of the Immigration and Refugee Board should be reviewed on the
standard of "correctness".
Background: Veluppillai Pushpanathan arrived in Canada seeking refugee status
from his native country of Sri Lanka. Before the claim was settled, he was convicted of
conspiracy to traffic in narcotic in Canada, and was sent to prison. On the basis of his
conviction, he was denied refugee status under article 1F(c) of the UN Convention
Relating to the Status of Refugees which excluded claimants "guilty of acts contrary to
the purposes and principles of the United Nations." A conditional deportation order was
issued by the Immigration and Refugee Board.
Issue: The issue of whether the criminal conviction was contrary to the principles
listed in the Convention was submitted for judicial review, and the court was further
asked to determine the standard of review to be applied to the Immigration and Refugee
Board's decision regarding Pushpanathan.
Judgment of the Court - Justice Bastarache wrote for a majority of the Court.
Standard of review: Bastarache noted that even though the lower
courts did not address it, the standard of review must be established before
considering the other issues. He reviewed the "pragmatic and functional
approach" from U.E.S., Local 298 v. Bibeault (1988) and the three available
standards of review. In a key passage, the judgement redefined the meaning of
'jurisdictional' in administrative law:
A question which "goes to jurisdiction" is simply
descriptive of a provision for which the proper standard of review is
correctness, based upon the outcome of the pragmatic and functional
analysis. In other words, "jurisdictional error" is simply an error on an
issue with respect to which, according to the outcome of the pragmatic
and functional analysis, the tribunal must make a correct interpretation
and to which no deference will be shown.
The Court reiterated the four factors to be considered when
determining the standard of review that the courts should apply. These factors
include:
The presence or absence of a privative clause
The relative expertise of the courts and the
administrative decision-maker
The purpose of the act as a whole, and the
provision at issue in particular
The Nature of the Problem: a question of law or
fact?
The court concluded that since the issue was "a serious question
of general importance" there was no other standard but that of "correctness".

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Abuse of discretion as a ground of Judicial Review


Baker v. Minister of Citizenship & Immigration (1999)
This is looking at the issue of abuse of discretion (focus on procedural fairness is set out
earlier).
Substantive review
Baker repudiates the dichotomy which previously existed in the case law
between discretionary and non-discretionary decisions. Instead, the court argued that
there is great "difficulty in making rigid classifications between discretionary and nondiscretionary decisions."
Courts typically assumed that it was their function on an application for review to determine
independently the scope of the agencys statutory discretion whether a factor considered by
the agency was relevant or a purpose pursued was authorized is reviewable by a standard of
correctness, not reasonableness.
But after Baker in the realm of failing to take account of relevant factors, taking account of
irrelevant factors even acting for improper purposes, one must now ask whether the standard of
review is that of correctness or reasonableness. Baker and Dunsmuir recognize at least the
occasional need for deference to discretionary procedural choices.
Suresh v. Canada (Minister of Citizenship and Immigration) (2002)
Standard of review: Parliament intended to grant the Minister a broad discretion
in issuing a s. 53(1)(b) opinion [now s.115(2)(b)], reviewable only where the Minister
makes a patently unreasonable decision
If minister considered appropriate factors in conformity with the
legislation, then the court must uphold the decision even if they would have
weighed the factors differently

11.

The Current Test

CB 679-696; 783-786; 863-869; 879-885; 799-804; 834-838; 848-861


These are the readings on substantive review that bring you up to speed. Dunsmuir is your
focus. Understand it. Understand how it creates two standards of review, and what each
means. Understand how it changes the test used to decide which of these two standards of
review should be
applied.
Consider how Dunsmuir has been interpreted by other courts and in other cases. No, it hasnt
been construed perfectly consistently and there are elements of post-Dunsmuir cases (like
Khosa) that seem to go back to a pragmatic and functional test. But consider also the recent
69

case of Smith and what it seems to suggest about Dunsmuirs meaning. It proposes a pretty
simple standard of review test.
Dunsmuir lays out the current framework - Standard of Review Analysis although it
encompasses the factors that previously applied under the Pragmatic and Functional. Factors
are:
1.
2.
3.
4.

Presence and terms of privative clause or right of appeal under statute;


Nature of the question that is under review;
Expertise of decision maker
Statutory purpose and context in which the decision making took place.

Dunsmuir did not radically alter the courts commitment to judicial deference for administrative
decisionmaking but it made significant changes to the method of implementation of that
commitment:
1. Reduced the number of standards of review from three to two. Highly deferential
patent unreasonableness standard doesnt disappear entirely seems to continue
where its usage is dictated by a past decision or by an express statutory provision;
2. New standard of reasonableness is not necessarily the same as the old
reasonableness simpliciter and appears to convey an adaptable approach to deference
in different circles, shifting many questions in the standard of review analysis to the
stage at which the standard of reasonableness, once arrived at, is applied;
3. Standard of correctness has more or less the same meaning.
The first stage of the Standard of Review Analysis is to determine the appropriate standard of
review. Must an administrative decision be unreasonable or simply incorrect, in the courts view,
for the court to set it aside.
Second stage is to apply that standard on the merits of the case at hand in order to decide the
outcome of judicial review.
Dunsmuir v. New Brunswick (2008) is the leading Supreme Court of Canada decision on the
topic of substantive review and standards of review. The decision is notable for combining the
reasonableness (simpliciter) and patent unreasonableness standards of review into a single
reasonableness standard.
Facts: David Dunsmuir was hired by the Department of Justice of the Province of
New Brunswick as of February 25, 2002. His work was unsatisfactory to his employer
and he received multiple written notices to this effect. Ultimately, his employer decided to
terminate his employment as of December 31, 2004. On August 19, 2004, Dunsmuir was
informed in a letter that his employment was being terminated. As his employment was
not being terminated 'for cause', Dunsmuir was granted several months of paid leave
with which to find a new job.
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Dunsmuir grieved his dismissal in a letter sent to the Deputy Minister on


September 1, 2004. When his grievance was denied, he gave notice that he would refer
the grievance to adjudication. An adjudicator was selected by the agreement of both
parties. The adjudicator held that Dunsmuir had been denied procedural fairness in the
manner of his dismissal and that the dismissal was thus void ab initio; the adjudicator
ordered Dunsmuir to be reinstated as of August 19, 2004. On judicial review to the Court
of Queen's Bench, the decision was overturned. That decision eventually reached the
Supreme Court of Canada.
History:
Trial Court: The trial court took an application for judicial review
and said the correct standard of review is correctness against the adjudicator's
decision because the adjudicator did not have jurisdiction to inquire. The Court of
Appeal said that Dunsmuir received procedural fairness because of the hearing
before the adjudicator and maintained the 8 month decision.
Court of Appeal: The Court of Appeal said that reasonableness
was the correct standard and that the adjudicator was unreasonable because the
employer dismissed the employee at pleasure, and that the common law rules
did not require any more procedural fairness that Dunsmuir received.
Reasons of the Court (SCC):
Statement of the Law: The Court began by canvassing the recent
history of administrative law decisions on the standard of review, including CUPE
v. New Brunswick Liquor Corp., Crevier v. Quebec, Canada (Director of
Investigation and Research) v. Southam Inc. and Pushpanathan v. Canada. The
court noted the general unworkability of the current state of the judicial review of
administrative decisions in Canada. In response, 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 court emphasized the use of precedent to simplify the issue of
standard of review. First, courts must ascertain whether the jurisprudence has
already determined in a satisfactory manner the degree of deference to be
accorded with regard to a particular category of question. Second, where the first
inquiry proves unfruitful, courts must proceed to an analysis of the factors making
it possible to identify the proper standard of review.
[50] As important as it is that courts have a proper understanding
of reasonableness review as a deferential standard, it is also without question
that the standard of correctness must be maintained in respect of jurisdictional
and some other questions of law. This promotes just decisions and avoids
inconsistent and unauthorized application of law. When applying the correctness
standard, a reviewing court will not show deference to the decision makers
reasoning process; it will rather undertake its own analysis of the question. The
analysis will bring the court to decide whether it agrees with the determination of
the decision maker; if not, the court will substitute its own view and provide the

71

correct answer. From the outset, the court must ask whether the tribunals
decision was correct.
[51] Having dealt with the nature of the standards of review, we
now turn our attention to the method for selecting the appropriate standard in
individual cases. As we will now demonstrate, questions of fact, discretion and
policy as well as questions where the legal issues cannot be easily separated
from the factual issues generally attract a standard of reasonableness while
many legal issues attract a standard of correctness. Some legal issues, however,
attract the more deferential standard of reasonableness.
[55] A consideration of the following factors will lead to the
conclusion that the decision maker should be given deference and a
reasonableness test applied:
A privative clause: this is a statutory direction from
Parliament or a legislature indicating the need for deference.
A discrete and special administrative regime in
which the decision maker has special expertise (labour relations for
instance).
The nature of the question of law. A question of law
that is of central importance to the legal system . . . and outside the . . .
specialized area of expertise of the administrative decision maker will
always attract a correctness standard (Toronto (City) v. C.U.P.E., at para.
62). On the other hand, a question of law that does not rise to this level
may be compatible with a reasonableness standard where the two above
factors so indicate.
[56] If these factors, considered together, point to a standard of
reasonableness, the decision makers decision must be approached with
deference in the sense of respect discussed earlier in these reasons. There is
nothing unprincipled in the fact that some questions of law will be decided on the
basis of reasonableness. It simply means giving the adjudicators decision
appropriate deference in deciding whether a decision should be upheld, bearing
in mind the factors indicated.
The following matters were identified as being subject to the
correctness standard:
Constitutional questions regarding the division of
powers between Parliament and the provinces;
Determinations of true questions of jurisdiction or
vires;
The question at issue is one of general law that is
both of central importance to the legal system as a whole and outside the
adjudicators specialized area of expertise; and
Questions regarding the jurisdictional lines between
two or more competing specialized tribunals.
Application to the Facts: When this new analytical framework was applied to the
facts of the Dunsmuir case, the court determined that the reasonableness standard was
the correct approach on which to judge the administrative decision in question. In that

72

regard, the court ruled that the decision failed to meet this standard, and was therefore
unreasonable.
Impact: 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. 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.
The Dunsmuir principles were subsequently clarified in Canada
(Citizenship and Immigration) v. Khosa, 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.
However, Dunsmuir will not overrule specific requirements that are
given in a statutory framework - therefore, the duty of procedural fairness will
continue to apply in such cases.
In addition, the ruling has effectively ensured that most forms of
public employment are best viewed through the lens of private employment law
principles, irrespective of whether the affected person may be categorized as a
public office holder. Therefore, appeals on grounds of procedural fairness will be
available only to a few categories of public employment, and reinstatement
procedures will occur even less frequently.

Lingering Questions After Dunsmuir


In Dunsmuir Binnie J said the pragmatic and functional approach was unduly subtle,
unproductive and esoteric and contributed to lengthy and arcane discussions in both factums
and on the hearing of applications and appeals, undue cost and delay. Does Dunsmuir solve
this?
Alice Wolley (law professor) it may be that a radical change in direction in this area is
impossible and the major flaw of Dunsmuir is the judgements illusion that it can fix the problem.
No generic formula can decide when a specific question is better answered by the
administrative decision-maker or by court. No test can tell one how to be deferential since
deference is neither capitulation nor substitution of judgement, it necessarily requires the
drawing of fine lines in particular cases.
First Question Precedent standard of review should follow existing
jurisprudence where it has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question. How can you
tell when a past decision is sufficiently like the case at hand? Lets review post Dunsmuir
cases to see.

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Clear that you should avoid following the standard of review if


there is a sufficiently clear record of past decisions that govern the issue.
Second Question cases where statute or existing jurisprudence dictate a
standard of review no longer available after Dunsmuir
BC Administrative Tribunals Act sets out specific standards
including patent unreasonableness. In Khosa, the majority held that if statute
refers to it, then it continues. BC Administrative Tribunals Act refers to patent
unreasonableness so it lives on in BC but the content of the expression, and the
precise degree of deference it commands in the diverse circumstances of a large
provincial administration, will necessarily continue to be calibrated according to
general principles of administrative law.
What about patent unreasonableness standard in existing
jurisprudence? Dunsmuir doesnt really leave that open for a lower court but
lower court could adopt reasonableness as the standard and then apply it in a
manner like to old patent unreasonableness standard.
Third Question proper scope of JR on questions of law Deference will be
shown where a tribunal is interpreting its own statute or statutes closely connected to its
function, with which it will have a particular familiarity or where an admin tribunal has
developed particular expertise in the application of a general common law rule or civil
law rule in relation to a specific statutory context.
But where the question of law is considered to be of central
importance to the legal system as a whole and outside the specialized expertise
of the decision-maker. Binnie J says this reference to a new category of qs of
law will cause unnecessary confusion:
It is a distraction to unleash a debate in the reviewing courtroom
about whether the question of law is of central importance to the legal system as
a whole. It would be sufficient to exempt from the correctness standard
determinations on home statutes or statutes closely related to the administrative
decision makers expertise. Other than that, the last word on general questions of
law should be left to judges.
Fourth Question role of factors in general in the standard of review analysis.
Majority said In many cases, not necessary to consider all the factors as some may be
determinative. Is this correct?
To what extent is it necessary for court to refer to several or all of
the factors when explaining its reasoning? Difficult to understand the standard of
review analysis without appreciating the role that is played by the various factors.
Even where a court doesnt explicitly refer to the underlying factors in the
standard of review analysis, therefore, one should appreciate that those factors
should always play some role in a courts decision on whether to defer.
Fifth Question will majority approach provide a coherent and workable
framework for the system of JR as a whole? Possible where the majority have focussed
on review of admin tribunals? Per Binnie J yes it is applicable to all frameworks:
Parliament or a provincial legislature is often well advised to
allocate an administrative decision to someone other than a judge. The judge is
on the outside of the administration looking in. The legislators are entitled to put
their trust in the viewpoint of the designated decision maker (particularly as to
74

what constitutes a reasonable outcome), not only in the case of the


administrative tribunals of principal concern to my colleagues but (taking a
holistic approach) also in the case of a minister, a board, a public servant, a
commission, an elected council or other administrative bodies and statutory
decision makers. In the absence of a full statutory right of appeal, the court
ought generally to respect the exercise of the administrative discretion,
particularly in the face of a privative clause.
Sixth Question interaction between different factors in standard of review
analysis, in particular the role of privative clauses. Funny that Dunsmuir emphasised
deference and then went on to overturn the adjudicators decision, even with a privative
clause and interpretation of own statute. le? Possible where the majority have focussed
on review of admin tribunals? Per Binnie J

Reasonableness Review
Dunsmuir majority on the reasonableness standard:
Reasonableness is a deferential standard animated by the principle that
underlines the development of the two previous standards of reasonableness. Certain
questions that come before administrative tribunals do not lend themselves to one
specific particular result. Instead, they may give rise to a number of possible
reasonable conclusions. Tribunals have a margin of appreciation within the range of
acceptable and rational solutions. The court conducting a review for reasonableness
inquiries into the qualities that make a decision reasonable, referring both to the process
of articulating the reasons and to outcome. In judicial review, reasonableness is
concerned mostly with the existence of justification, transparency and intelligibility within
the decision-making process but it is also concerned with whether the decision falls
within a range of possible acceptable outcomes which are dispensable in respect of the
facts and law.
This does not mean that courts can conduct a more intrusive review. Deference imports respect
for the decisionmaking process of adjudicative bodies with regard to both the facts and the law.
Deference in the context of reasonableness means courts should give due consideration to the
determinations of decision-makers. Deference requires respect for the legislative choices to
leave some matters in the hands of administrative decision makers, for the processes and
determinations that draw on particular expertise and experiences, and for the different roles of
the courts and administrative bodies within the Canadian constitutional system.
Re: standard of correctness - when applying the correctness standard in respect of jurisdictional
and some other questions of law, a reviewing court will not show deference to the decision
makers reasoning process; it will rather undertake its own analysis of the question and decide
whether it agrees with the determination of the decision maker; if not, the court will substitute its
own view and provide the correct answer. From the outset, the court must ask whether the
tribunals decision was correct.
75

Canada (Citizenship and Immigration) v. Khosa [2009]


Facts: Khosa was a citizen of India who immigrated to Canada with his family in
1996 at the age of 14. He was found guilty in 2002 of criminal negligence causing death
and sentenced to a conditional sentence of two years less a day. A removal order was
issued for him to return to India.
Judicial History: Khosa appealed the order to the Immigration Appeal Division
(IAD) of the Immigration and Refugee Board. The majority of the IAD denied Khosa
"special relief" on humanitarian and compassionate grounds. On appeal, the Federal
Court reviewed the assessment of the IAD and found it to be reasonable. That decision
was then appealed to the Federal Court of Appeal which then found that the decision
had not been reasonable when they denied relief and set the decision aside.
Opinion of the court: Binnie J. wrote for the majority, who found that s. 18.1 of the
Federal Courts Act set out the threshold grounds which permit but do not require the
court to grant relief when conducting judicial review. Binnie J. held that "whether or not
the court should exercise its discretion in favour of the application will depend on the
court's appreciation of the respective roles of the courts and the administration as well as
the "circumstances in each case".
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.
Notes Dunsmuir two steps:
1. An exhaustive review is not required in every case to determine proper standard.
Existing jurisprudence may be helpful. Dunmuir renders patent unreasonableness std vs
reasonableness simpliciter std moot. None of prior jurisprudence points to correctness
so existing jurisprudence points to reasonableness.
2. When existing jurisprudence is not conclusive, move on to factors:
a. Privative clause
b. Purpose of IAD as determined by enabling legislation
c. Nature of question at issue before IAD
d. Expertise of the IAD in dealing with immigration policy
Consider them as a whole bearing in mind not all will be relevant for every single case.
Decided reasonableness standard applied. Signals a reluctance to interfere with the
discretionary choices of an admin tribunal.

The Reasonableness of Giving Reasons


Per Baker giving of reasons is an important requirement of procedural fairness. Giving of
reasons also important for the reasonableness review of substantive decisions. Per Dunsmuir
majority the qualities that make a decision reasonable entails reference to both the process of
articulating the reasons and to outcomes implies that giving of reasons may be an impt prereq for a court to conclude that a substantive decision of administrator was reasonable. BUT
76

Dunsmuir majority also said that an admin decision could be found reasonable based on
reasons which could be offered in support of a decision.
So, what does this mean? Indication is that court may require decision maker to give express
reasons, beyond content of the record that was before the decision maker. Also suggest there
is room for court to supplement or even substitute the reasons of the decision maker. But court
should look first to the reasons given by decision maker and should not seek to spice them up,
Court should rarely disregard decision makers rationale in favour of courts as the core purpose
of the reasonableness review is to defer to the decision makers choices.
What if decision maker didnt give reasons?
Macdonald v. Mineral Springs Hospital [2008]
The issue under appeal was a decision by the Hospital Privileges Appeal Board
that it had no jurisdiction to hear an appeal from an Operating Room Committee decision
that it would not increase a physicians operating room time. This looks at first glance like
a jurisdictional question after all, they are deciding whether they have jurisdiction to do
something. However, as the Court rightly points out, that isnt sufficient to make
something a jurisdictional question in the relevant sense. A jurisdictional question would
be one that says, can the Hospital Privileges Appeal Board even ask this question? Are
they even entitled to decide whether they have the power to hear the appeal of the
Operating Room Committee on this issue? That type of question isnt raised here. They
do have that power, and the only question is as to the answer can they hear the appeal
or not? That question is a straightforward matter of statutory interpretation, and is
reviewed on a reasonableness standard. This is a tricky point, and it is nice to see the
Court addressing it properly.

Concept of Jurisdictional Error


A technical explanation for courts restrictive int. of privative clauses is that the statutory ref to a
decision means a valid decision. Outside its jurisdiction, the agency has no legal power to
make a decision at all. Dickson J legislature wouldnt create a tribunal with limited jurisdiction
and bestow an unlimited power to determine the extent of its jurisdiction. Argument is Need to
keep an eye on them or they will keep encroaching. Counter is that the courts and common law
are no more neutral than the admin agencies. Also, as interpreters of public policy statutes,
courts are at a disadvantage to the specialist agency created by legislature to administer that
legislation.
Public Service Alliance of Canada v. Canadian Federal Pilots Association [2009]
A judge has questioned the ability to make coherent distinctions between
questions of jurisdiction and other questions of law. Evans J.A. noted the analytical
emptiness of the concept of a jurisdictional issue' (PSAC at para. 40). He suggested
that the phrases used by the Court in Dunsmuir to identify a question of jurisdiction were
vague (PSAC at para. 45), and that in any case where an administrative decision-maker
77

was interpreting its enabling statute, a court must identify the appropriate standard of
review based on the standard of review analysis (formerly the pragmatic and functional
test) rather than by attempting to determine whether the matter was jurisdictional based
only on the nature of the provision being interpreted (PSAC at para. 52).

Challenging Administrative Decisions


12.

Venue and Basic Procedure for Judicial Review

S&F, ch. 15; CB 1087-1132; 1039-1055

Now that you understand the law, it is time to understand how one goes about challenging an
administrative decision.
In some cases, there may be what is known as a statutory right of appeal or administrative
appeal there may be a statute out there (often the enabling statute) that allows someone to
appeal the decision of the decision-maker, sometimes to a court and sometimes to another
administrative decision-maker. If there is such a statutory right to appeal, one generally must
exhaust it before turning to judicial review, for reasons that are part of readings later on. The
rules governing these statutory appeals will be governed by the statute itself.
Judicial review is different do not confuse the two. Judicial review is part of the inherent
powers of superior courts to review the exercise of powers by executive branch ofcials. Today,
this form of relief is generally codied or provided for in primary legislation or Rules of Court.
This section concentrates on one of the issues associated with judicial review: standing, or the
question of who gets to bring a judicial review application. It also deals with venue: which court
one goes to.

Standing
Expansion of JR from original premise of protecting the individual from illegal government action
partly because of recognition that unlawful exercises of govt power can affect large numbers
of people, greater role of lobby and interest groups, introduction of Charter and Bill of Rights.
This expansion of access to the courts has caused some criticism.
First, it draws too much on an already overtaxed court system. Also, is litigation the best
mechanism only those with a real stake in the outcome of the litigation have an incentive to
provide the court with the best outcomes and the courts generally see the real issues in
disputes most clearly when it is in the context of a claim by someone who is directly affected.
Courts may be at a disadvantage having to deal with questions in an abstract setting when
arguments are brought by those who claim to represent general public interest and not have a
concrete stake in outcome.
Second, concern about politicisation of the courts i.e. trespassing into domain of party politics
and also certain questions should not be brought before courts as they are not justiciable. No

78

guarantee that liberalising access to courts of public interest groups will enhance democratic
and participatory values. High costs of litigation and unequal access to legal services might
mean a liberal standing law will confer more advantages on the privileged.
The foregoing explains the ambivalent attitude of some courts/lawyers/commentators to an
expanded law of standing.
Also, hard to disentangle the issue of standing from the merits of the claim advanced. A
persons or groups claim to be an appropriate plaintiff or applicant will often only be appreciated
based on an awareness of the claim itself and is factual and legal underpinnings. Always the
dilemma of whether to treat an issue of standing as a threshold matter or as integrally related to
the merits of the claim.
Issues to consider:
When will public interest standing be granted?
To what extent do current principles of standing allow for private law enforcement
by way of an administrative law remedy?
Role of attorney general in environment where that office is no longer the
exclusive vindicator of public interest in judicial review?
Whether and to what extent tribunals and agencies should have standing to
participate in legal proceedings in which their decisions are under scrutiny? Sometimes
they have limited standing to participate in judicial review of their decision and others
they may be granted intervenor status.
What about standing to participate in administrative tribunal hearings as a party
or intervenor?

Standing in Judicial Review Proceedings


Who is entitled to bring JR proceedings?
Mere strangers could seek certiorari and prohibition but court possessed an
overriding discretion to refuse relief at the suit of such a person.
Where a person was directly affected and the error was patent ranther than latent
in the case of prohibition, the remedy was available as of right,
For mandamus, the person seeking the remedy has to be the person to whom
the performance of the duty was owed, or (based on recent authority) a person
sufficiently interested in its performance.
Where declaratory and injunctive relief sought, the plaintiffs must show
interference with a private right of theirs or, if public right, they would suffer loss over and
above other members of community, otherwise only appropriate plaintiff is AG. (note
court will always recognize AGs ability to seek any remedy stems from historic role of
guardian of public interest). Exception - Ratepayers are able to challenge validity of
municipal bylaws regarding expenditure of public funds.
What are obligations on AG if they are asked to lend name to relator proceedings? What if AG
refuses?

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Two extremes from a policy perspective:


1. General public interest in legality of admin action and anyone should be able to
bring that illegality to the attention of courts; and
2. Litigation only available to those who are direct targets of individualized admin
decisionmaking and whose financial or property interests are affected in a substantial
way (on this view AG is only one who can bring public interest proceedings).
Canada has adopted middle path (although until recently, closer to 2. than 1.)
Note most cases do involve individuals who are affected directly by decisionmaker. The
difficulties arise when you move out of those cases. Eg. Interests of neighbouring property
owners when property is rezoned what type of interest is enough to give them standing?
Finlay v. Canada (Minister of Finance) [1986]
Facts: Respondent is a Manitoba resident whose illness and disability caused
him to depend on a social allowance under The Social Allowances Act, R.S.M. 1970,
S160, of Manitoba. Of this allowance, 5 percent was deducted over forty-six months to
pay the Crown for an overpayment of allowance. The respondent also owed a municipal
debt for previous assistance.
Respondent contended that the payments by the federal government to the
provincial government were illegal under s 7.1 of the Canada Assistance Plan.
Respondent also contended that s. 20(3) of The Social Allowances Act and s.
444 of The Municipal Act contradict provincial undertakings, and that s. 11(5)(b) of The
Social Allowances Act contradicts s. 2 of the Canada Assistance Plan.
Judicial History: The respondent brought an action against the Minister of
Finance as the Minister responsible for payments from the Consolidated Revenue Fund,
and against the Minister of National Health and Welfare to the Federal Court, in relation
to s. 7 of the Plan. The respondents notice of motion was struck out by the Federal
Court, Trial Division.
The Federal Court of Appeal allowed the appeal. It restored the respondents
claim on the grounds that:
Standing should be granted as a matter of judicial discretion
The statement of claim disclosed a reasonable cause of action
Issues: Does the respondent have sufficient personal interest for standing to
challenge federal cost-sharing and seek injunctive relief? If not, does the Court have
discretion to recognize public interest, and if so can it be carried out in favour of the
respondent?
Standing and justiciability are at the core of the issues.
Holding: The appeal is dismissed with costs. The respondent has standing to
bring action challenging the legality of cost sharing under s. 7 of the Canada Assistance
Plan, and to seek injunctive relief as outlined in his claim.
Reasoning:
The determination of standing as a preliminary matter in a case
depends on the nature of the issues raised, whether sufficient material has been
brought before the courts and the argument presented. The present case can be

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determined on a motion to strike. The respondents interest is sufficiently


established.
The nature of interest required by a private individual in a lawsuit
for injunctive relief is defined in relation to the Attorney Generals role as guardian
of public rights:
The A.G. exercises discretion as to its reviewability
by the courts
A private individual requires the consent of the A.G.
to sue for injunctive relief unless he can demonstrate sufficient private or
personal interest
Le Dain, J. cites Buckley J. in Boyce v. Paddington Borough
Council, [1903] 1 Ch. 109 in order to outline 2 cases in which a plaintiff may sue
without the A.G.s consent:
Interference with the public right constitutes
interference with a private right of the individual
Interference with a public right causes the individual
to suffer damage but not private right is interfered with
Le Dain, J. states that the prejudice caused to the respondent by
provincial non-compliance with the Plan and the allegedly illegal federal
payments is not sufficient for standing
The respondent must rely on public interest in the
legality of federal cost-sharing payments
Draws on approaches in Thorson, McNeil and
Borowski, but concludes that the judgments in these cases do not provide
suitable authority on whether to bring such a non-constitutional action as
a matter of judicial discretion
Applicability of Thorson, McNeil and Borowski:
Departure from the general rule of
the A.G.s discretionary control over public interest standing
Thorson: if there is no other way for
the issue to be brought before a court, the Court must have the
discretion to recognize public interest standing in a challenge to
the constitutionality of legislation
Borowski: it is sufficient for a plaintiff
to show that he has a genuine interest as a citizen in the validity
of the legislation [Note: the judge is NOT referring to the Borowski
which we read - this was a different trip to the SCC.]
Le Dain, J.: refusal of the A.G. to act should not bar a court from
recognizing public interest standing in a private individual
On justiciability: an issue deemed appropriate for judicial
determination should not be rejected if its policy context it is better dealt with by
the legislature or executive
In this case, there is no other reasonable and effective manner to
bring the issue before a court. The plaintiff has a direct interest to challenge the
statutory authority in this case.

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Ratio: Courts should not decline a justiciable issue on the basis of policy context
of implication that causes the issue to be better determined by a legislature or executive
branch of government. A plaintiff may have the standing to challenge statutory authority
if this is deemed the only reasonable and effective manner in which to bring an issue
before a court.

Public Interest Standing


Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] is a
leading Supreme Court of Canada case on the law of standing in Canada. In particular, the case
sets out the criteria a public-interest group must meet in order to be allowed to mount a
constitutional challenge in court.
Background: Prior to this case standing for public-interest litigants was governed
by the "Borowski test," which was given broad application. During the hearings for
Thorson and Borowski Justice Martland and Chief Justice Laskin were fiercely at odds
over the issue on interpreting the standard. Laskin felt that the borowski test allowed in
people who merely wanted to challenge law for political reasons and not because they
were truly affected, while Martland felt the test followed the original principles in Thorson
v. Attorney General of Canada.
The Canadian Council of Churches is an incorporated interest group that
represents the interests of a number of churches. The group's focus had been the
current government policy on refugee protection and resettlement. In particular, they had
been critical of the changes in the determination process of evaluating whether a
refugee came within the definition of Convention Refugee as part of recent amendments
to the Immigration Act, 1976.
The Council sought a judicial declaration that the amendments were
unconstitutional, and therefore of no force or effect. The Attorney General of Canada
moved to strike out the claim on the basis that the Council did not have standing to bring
the action. At first instance, it was held that the Council had standing, but this was
overturned on appeal. The issue before the Supreme Court of Canada was whether the
Council has standing to challenge the validity of the amendments. The Court found that
the Council did not have standing, and dismissed the appeal.
Opinion of the Court: The Court acknowledged the need for public-interest
standing in principle, to ensure that government is not immunized from constitutional
challenges to legislation. However, the Court also stressed the need to strike a balance
between ensuring access to the courts and preserving judicial resources, citing the
concern of an "unnecessary proliferation of marginal or redundant suits brought by wellmeaning organizations pursuing their own particular cases certain in the knowledge that
their cause is all important."
The current test for standing, as summarized in this decision, considers three
factors:
1. Is there a serious issue raised as to the invalidity of legislation in
question?
2. Has it been established that the plaintiff is directly affected by the
legislation or, if not, does the plaintiff have a genuine interest in its validity?

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3. Is there another reasonable and effective way to bring the issue


before the Court?
On the facts of the case the Court found that the claim did raise some serious
questions. Moreover, the claimant had a "genuine interest" in its validity. However, the
claim must fail on the third and most onerous factor. Since a refugee would have
standing to challenge the law, there would clearly be a reasonable and effective way to
bring the issue to the Court. The Court dismissed the argument that refugees did not
have effective access to the courts to bring a claim. Evidence showed that many are
capable of making claims, which, in all, were better ways to challenge a law as there are
concrete facts behind it. The Court further dismissed the claim that the potential
imposition of a removal order would bar them from challenging it, as the Federal Court
could grant an injunction to prevent deportation.

13.

Remedies

S&F, ch. 3; CB 1055-1076, 1141-1205, 1207-1254


This last part looks at the relief that can be provided on judicial review and through separate and
different legal proceedings. It focuses on: the sorts of remedies available on judicial review; the
fact that the award of remedies on judicial review is discretionary and may be denied on some
of the grounds discussed in the materials; and, the fact that there are civil remedies that may
overlap with the sorts of errors that give rise to judicial review, but that these are governed by
their own rules and procedures.

Forms of Permanent Relief


Remedies available on judicial review have their roots in ancient prerogative writs, such as:
Certiorari ("cause to be certified"):
Special proceeding by which a superior court requires some
inferior tribunal to provide it with the record of its proceedings for review to see if
it exceeded its jurisdiction;
A successful certiorari application results in "quashing" the
tribunal's order or decision.
Prohibition:
Issued by an appellate court to prevent a lower court from
exceeding its jurisdiction or to prevent a non-judicial court from exercising a
power (negative remedy);
Unlike certiorari, which provides ex post facto relief, this provides
pre-emptive relief like a CL injunction to prevent an unlawful assumption of
jurisdiction.
Mandamus ("we command"):
Writ issued by a superior court to compel a lower court or
government agency to perform a duty it is mandated to perform;
In practice, often combined with an application for certiorari;

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i.e.: certiorari used to quash decision (ie: for lack of procedural


fairness) while mandamus used to force the tribunal to reconsider the matter in a
procedurally fair manner.
Declaration:
Judgment of the court that determines the legal positions of the
parties;
Public law ones used to declare gov't action ultra vires; private law
ones declare statutory rights;
Declarations are not enforceable, and can't require anyone to
take/refrain from action.
Habeas Corpus ("produce the body"):
Writ to bring a person before a courtused to ensure
imprisonment/detention is not illegal;
Like certiorari, it is alive and well in the USA (ie: death penalty
reviews to federal courts).

Over time, prerogative writs came to be archaic because small technicalities or wrong choice of
writ would bar potentially meritorious applicationsas a result, many provinces and feds made
reforms (ie: Federal Courts Act and BC ATA)
However, the underlying writs are still important to know what remedies you get with judicial
review

Statutory Appeals
It should be recognized that the most common way of challenging administrative action is by the
huge variety of statutory appeals that exist in individual statutes creating specific tribunals,
agencies, and statutory powers. Not only may a statute provide for a more extensive mode of
relief than allowed for under the principles of judicial review but also you may be expected to
use that avenue of recourse even where its reach is the same as, or in some cases even
narrower than, that of judicial review.

Judicial Review
Collateral Attack
Defined as an attack made in proceedings other than those whose specific object
is the reversal, variation, or nullification of the order or judgment.
Cooper v. Board of Works for Wandsworth District. Validity of Board of Works
argued that its demolition of the stricture was justified by a valid order and was not
actionable trespass. Validity of the order was not the direct target of the proceedings it
was raised indirectly as part of the boards defence of the tort of trespass.
Also see this in prosecution for violation of a bylaw or regulation when D
challenges validity of the statutory instrument, e.g. R. v. Sharma. SCC has made it clear
that collateral attack is not a matter of right but should be carefully circumscribed by the
use of judicial discretion (Consolidated Mayburn)

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Direct Attack
Until recently, substantive scope of judicial review or administrative action was dictated by rules
on the availability of the various public law remedies many of which were arcane, complex and
had no policy basis.
Steps were taken to simplify judicial review and the availability of public law remedies.
Sec.2 of the Federal Court Act creates a single application for judicial review encompassing the
existing remedies of judicial review and apparently serving as a replacement for those
remedies.
In large measure the species of relief specified in this modern legislation do no more than codify
the successful outcomes of a successful application for the former remedies:
Certiorari would quash or nullify a position;
Prohibition and the injunction would prohibit or enjoin action;
Mandamus would direct the performance of duties;
Declarations would declare rights as between the parties.
Putting all these modes or relief under one judicial review remedy meant that difficulties of
choosing the correct remedy was removed/minimized, provided the relevant Acts thresholds
were crossed.
Statute also allows Court to refer matter back for reconsideration in accordance with specific
findings or directions. This is a significant remedial addition to judicial review powers of the
court.
General availability of interim relief is also an improvement previously it was unavailable in
support of a prerogative remedy or by way of declaration.
Such statutory reforms or codes have not meant the disappearance of all remedial problems
and uncertainties. Can court engage in partial quashing or setting aside of decision? Can it vary
a decision or order rather than quash it?
Courts have worked to find creative and sensitive solutions to remedial dilemmas. Used
Charter as the basis sometimes. Dagenais v. Canadian Broadcasting Corp. the court held that
certiorari was available not only to quash but also to vary a publication ban issued by a county
court judge. Based decision on s 24(1) of Charter those with a Charter claim may obtain
such remedy as the court considers appropriate and just in the circumstances.
Dagenais is significant as it affirms principle that Charter challenges can be raised in regular
judicial review proceedings and also should be raised within that framework, where feasible,
rather than by reference to an independent species of relief created by s24(1). But do the
statutory regimes of judicial review allow a person to seek a bare declaration that an
administrative regime breaches the Charter. CofA in Ontario held in Re Service Employees

85

International Union, Local 204 that there was no room for a bare declaration under the Ontario
Judicial Review Procedure Act that provisions in a regulatory statute infringed the Charter.
This means bare declarations must be sought under those statutory provisions or rules of court
that establish the general jurisdiction of the court to grant declaratory relief.
Effect of Certiorari Relief
In some instances the award of relief in the nature of certiorari or prohibition (or a declaration or
an injunction for that matter) will have the effect of leaving the authority under attack with no
residual jurisdiction in the matter. Eg. If a provincial labour relations board is prohibited from
proceeding in a matter because the employment relationship comes within federal jurisdiction,
the board has been excluded completely from that matter.
However, judicial review does not always undermine the whole authority of the decision maker
under attack. Thus, the quashing of a certification on the basis of the impropriety of a prehearing vote in Re Little Narrows GypsumCo. Ltd did not bring into question the general
jurisdiction of the board to consider the application of the bargaining unit for certification. Appeal
division held that the effect of certiorari was to wipe out the certification order and the prehearing vote but the application for certification still not dealt with. Board had a duty to proceed
mandamus type relief only necessary if board refused to act. Board did not have to start over,
rather resume at the point the error was made sensible approach.
In Gill v. Canada (Minister of Employment and Immigration), an Immigration Appeal Board
decision was set aside and the matter referred back to board. Board decided that it did not
have authority to reopen a Convention refugee hearing that had been tainted by breaches of the
rules of natural justice of sec. 2(e) of the Bill and sec. 7 of the Charter. The Federal Court of
Appeal held that even absent a specific statutory authority to reopen or rehear a case, a tribunal
in such circumstances had the implied authority to do so and rectify such wrongs.
Cf 841638 NWT Ltd. v Labour Standards Officer where NW Territories Supreme Court relied on
the absence of a power to rehear in refusing to order the rehearing of a labour standards board
decision that had been tainted by breaches of the rules of natural justice. Effect was to preclude
the adjudication of the employees claim for wages where the initial failure to afford natural
justice to their employer was not their fault.
Limits on Mandamus Relief
Karavos v. City of Toronto
Laidlaw JA cited Highs Extraordinary remedies:
Mandamus is appropriate to overcome the inaction or misconduct of persons charged with the
performance of duties of a public nature. Before the remedy can be given, the applicant for it
must show:
1. A clear, legal right to have the thing sought by it done, and done in the manner
and by the person sought to be coerced.

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2. The duty whose performance it is sought to coerce by mandamus must be


actually due and incumbent upon the officer at the time seeking the relief, and the writ
will not lie to compel the doing of an act which he is not yet under obligation to perform.
3. That duty must be purely ministerial in nature, plainly incumbent upon an officer
by operation of law or by virtue of his office, and concerning which he possesses no
discretionary powers.
4. There must be a demand and refusal to perform the act, which it is sought to
coerce by legal remedy.
Definitions of above categories
Ministerial if he meant that mandamus was only available with respect to
administrative rather than judicial and quasi- judicial functions, then his view is not in line
with present authority.
Public not all powers created by statute can be considered public for the
purposes of judicial review note the Halifax-Dartmouth Real Estate Board case - it may
be that there are public duties that exist other than by virtue of statute or royal
prerogative e.g. Re Morris and Morris Judge issued mandamus to compel the
defendant to commence proceedings before a Jewish religious court for the recognition
of his civil divorce.
Clear Legal Right to Perform the Duty. This is an overstatement in current
practice in that it emphasizes duty owed to an applicant personally rather than as a
member of a wider class.
Duties it should be noted that not all statutory provisions stated in terms of
duties will give rise to a claim of enforcement by the public. Sometimes they will be
stated at such a level of generality as to make it clear that the provision is for the
guidance of the statutory authority, and is not intended to confer rights on members of
the public.
e.g., Victoria University of Wellington Students Association Inc. v. Shearer (Government Printer)
Association attempted through mandamus to compel S to print a consolidated version of Code
of Civil Procedure. Statutory provision stated that all Acts required to be procurable by
purchase at the officers of the Govt Printer. Held that this was duty of the crown and not
compellable by mandamus. i.e. general organizational duty of the printer and not intended to
confer rights on the public.
Cf Union of Northern Workers v. Jewell Application for mandamus order compelling minister to
appoint members of an occupational health and safety board with statutory resp to advise
minister on safety in mines. Court held that applicant had standing to seek such relief and that
appointment of members was statutorily mandated even though Act required a process to be set
up for appointment of certain members. Although the process hadnt been set up, the court held
that mandamus relief was available. Distinguished Karavos on basis that a valid formal demand
was not a necessary prelude to granting of relief in a situation that was apparent for a number of
years and where it was clear to minister that the appointment of the board was sought.
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Mandamus is sometimes sought in conjunction with certiorari:


Certiorari to quash a decision already taken, and mandamus to compel its
retaking in accordance with the law. Unless case involves non-jurisdictional error of law
or breach of procedural fairness, use of certiorari is probably redundant in such cases.
Mandamus is theoretically available alone as person who brings complaint alleges that
the administrative body has a duty to take a decision according to the law and this duty
remains unfulfilled, notwithstanding an unlawful attempt by the body to take the decision.

Interim and Interlocutory Relief and Stays of Proceedings


In judicial review proceedings, an application for judicial review generally does not have the
effect of staying proceedings in the underlying decision making process. Re Cedarvale Tree
Services Ltd. and Labourers International Union, the Ontario CofA held that a tribunal was not
obliged to halt its proceedings after being served with an application for certiorari and prohibition
halting the proceedings was a matter of courtesy and common sense for the statutory
authority rather than a legal obligation. Communications, Energy and Paperworkers Union of
Canada v. Native Child and Family Services of Toronto, Ontario Labour Relations Board
determined for itself whether to suspend its proceedings while a JR was pending.
Statute PEI Judicial Review Act expressly provides that the launching of an application for JR
under the Act does not automatically stay further proceedings or acts whose validity depends on
the decision being challenged. Can imply this in other statutes as well.
But consequences of the court being unable to make an order to prevent deportation of a
Convention refugee claimant during a Charter claim are disastrous.
The modern JR regimes have express provision for the award of interim relief to halt the
administrative process stay of proceedings, interlocutory injunction, order under relevant
legislation or rules on JR procedure.
These provisions overcome an apparent limitation of the prerogative remedies interim relief
was not available as an adjunct to the seeking of such relief (obliges those needing interim relief
to proceed by way of an action for an injunction).
In general, the availability of interim relief to halt the administrative process, whether in the form
of a stay or interlocutory injunction or under the relevant judicial review procedure legislation or
rules, tends to be subject to the same general principles that govern the availability of interim
injunctions in the private domain. However, the public interest in the efficient and timely
exercise of statutory power looms as an explicit consideration in the balancing of the various
interests involved and serves to differentiate these kinds of cases from most situations in which
interlocutory relief is sought in private litigation.

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Moreover, in many cases, there is also the added dimension of Charter interests being at stake,
which serves to add a countervailing consideration in the exercise of the courts discretion over
the availability of such relief.
Another potential use of interlocutory relief has emerged; namely, the seeking of interlocutory
relief to prevent actions being taken by those subject to that process pending the conclusion of
a hearing or investigation.

Stays of the Administrative Process


Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd.

The Discretion of the Court


The courts retain an overriding discretion to deny relief. Common grounds for refusal include
existence of alternative avenues of recourse (statutory right of appeal or more convenient court
remedy) prematurity and its opposites, delay and mootness, lack of practical utility, misconduct
of applicant, waiver and sometimes, balance of convenience or public interest.
Bases for denial that are rooted in concerns for the integrity and functioning of the administrative
process raises issues dealt with throughout the course, in particular the extent to which the
claim that the administrative process has for deference and institutional respect from the courts
Some of the discretionary grounds for relief (misconduct, waiver and delay) involve judicial
assessment of the action of the applicant. Links to law of standing. Generally - only those who
have suffered specified harm/damage may seek JR even if Canadian law recognises categories
of public interest standing.
The discretionary grounds for the refusal for relief have the potential to legitimise unlawful
administrative action and part of the objective in this chapter is to raise questions as to when it
is appropriate for the courts to take that risk of allowing an unlawful decision or course of action
to achieve de facto legal status.
Concepts of voidness and nullity are generally relative rather than absolute.
e.g. in Manitoba Language Rights Case court did not void all laws that were not drafted
bilingual allowed them to be deemed valid until Manitoba re-legislated bilingually.
Sparvier v. Cowessess Indian Band No. 73
Election of chief of band. Appeal tribunal ordered new election on the basis of
irregularities in voting process. Different chief elected but also successful challenge to
order of appeal tribunal. To minimize disruption to Judge left the second election
undisturbed until the new appeal had been heard. Did this by postponing the quashing
order until either the original election was upheld or the day after the election should the
appeal tribunal order another election.

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Need remedial flexibility to diminish disruptive effects of JR.


Sometimes courts have eschewed use of discretion at the remedial stage. Cardinal v Director
of Kent Institution SCC rejected arguments for refusing relief for breach of rules on natural
justice based on proposition that the outcome would have been the same even if rules on
natural justice were complied with. Pragmatic approach breach of rules on natural justice
might not render a decision void.
Note: commentators have highlighted a problem of reigning in judicial remedial discretion and
subject it to appropriate ordering principles while at the same time ensuring that the judges have
sufficient remedial flexibility and room for creatively dealing with the complexities of regulatory
structures and specific fact situations.
Is the law well-served by current principles governing appeal court intervention in the exercise of
remedial discretions by first instance judges? In Canadian Pacific Ltd. v. Matsqui Indian Band,
SCC stated:
This discretionary determination should not be taken lightly by reviewing courts.
It was Joyal J.'s discretion to exercise, and unless he considered irrelevant factors, failed
to consider relevant factors, or reached an unreasonable conclusion, then his decision
should be respected. To quote Lord Diplock in Hadmor Productions Ltd. v. Hamilton,
[1982] 1 All E.R. 1042, at p. 1046, an appellate court "must defer to the judge's exercise
of his discretion and must not interfere with it merely on the ground that the members of
the appellate court would have exercised the discretion differently".

Alternative Remedies
Courts will sometimes regard the existence of a specific remedy in the empowering statute as
excluding the availability of common law judicial review as a matter of jurisdiction. More
frequently, the question of alternative remedies is dealt with by reference to the courts
overriding discretion to refuse relief even where the substance of the applicants or plaintiffs
case may have been made out. In such instances, the questions asked tend to be about the
relative or comparative convenience of judicial review as opposed to the alternative forms of
relief that are also available.

Statutory Appeals
Harelkin v. University of Regina [1979] 2 SCR 561 (Sask.) Student applied for certiorari and mandamus, rather than pursuing the available
right of appeal to a committee of the university senate.
The court held that the appellant was not entitled to assume that the senate
committee would have denied him a hearing. Nor should he have assumed that since
one governing body of the school denied him natural justice, another body of superior
jurisdiction would of the same. He should have assumed the opposite.

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In order to evaluate whether appellant's right of appeal to the senate committee


constituted an adequate alternative remedy and even a better remedy than a recourse to
the courts by way of prerogative writs, several factors should have been taken into
consideration among which the procedure on the appeal, the composition of the senate
committee, its powers and the manner in which they were probably to be exercised by a
body which was not a professional court of appeal and was not bound to act exactly as
one nor likely to do so. Other relevant factors included the burden of a previous finding,
expeditiousness and costs. A consideration of all the factors led to the conclusion that
appellant's right of appeal to the senate committee did provide him with an adequate
alternative remedy. In addition this remedy was a more convenient remedy for appellant
as well as for the university in terms of costs and expeditiousness. Also, the council
committee's refusal to grant a rehearing to appellant was not a sufficient reason for
issuing certiorari and mandamus.
SCC reconfirmed Harelkin in this case:
Canadian Pacific Ltd. v. Matsqui Indian Band
Whether applicants, contesting property tax, could proceed directly to Federal
Court by application for JR and bypass appeals tribunals established by the taxing
Indian bands by way of bylaw.
The question was whether the trial judge exercised proper discretion in refusing
to entertain the respondents application for judicial review, which then forced them to
pursue their judicial challenge by means of appeal procedures established by the Indian
Act.
The presiding judge held that a variety of factors should be considered by courts
in determining whether they should enter into judicial review, or alternatively should
require an application to proceed through a statutory appeal procedure. (The court must
always bear in mind Parliaments objective in creating the Indian taxation powers as
well).
These factors include: the convenience of the alternative remedy, the nature of
the error, and the nature of the appellate body (i.e., its investigatory, decision-making
and remedial capacities).
Must consider the adequacy of the statutory appeal procedures established by
the bands and not simply the adequacy of the appeal tribunals noted that bands
provided for appeals from the tribunals to the Federal Court.
The judge held that the original judges findings were not unreasonable. All he
had to decide was whether it was an adequate forum, not if it was a better forum than
the courts.
However, the trial judge failed to take into account the lack of the Indian tribunals
lack of independence.

Statutory Appeal to the Courts


Generally, Canadian Courts take the position that if the grounds on which the applicant for JR is
relying could have been raised in the context of a statutory appeal, the application will be
dismissed Milner Power Inv. V Alberta Energy and Utilities Board
91

Alternative Methods of Establishing Rights or Enforcing Observance of Statutes and


Orders
A different aspect of the issue of alternative remedies is raised when an attempt is made to use
the courts to vindicate rights created by/arising under a statute or to enforce statutory or
administrative prohibitions. There may be other methods established to resolve such matters
eg. Administrative (not judicial) determination or enforcement; prosecution rather than
declaratory or injunctive relief
Shore Disposal Ltd. v. Ed de Wolfe Trucking Ltd. (1976), 72 DLR (3d) 219 (NS SCAD)
The trial judge held that the appellant was a carrier of freight for gain, that it had
no license from the Public Utilities Board and it was therefore violating the Act. He
granted a declaratory judgment.
The judge declined to grant an injunction to restrain the appellant from engaging
in the business of collecting and disposing of garbage until such time it was licensed
under the Act.
The judge based his refusal on the fact that the Act contains sufficient remedies
to ensure due compliance with its provisions, without the necessity in this instance of a
Court injunction.
This appeal court stated that the principle that a declaration should not be
granted merely to enforce a criminal or penal offence is in my view a branch of a wider
principle that the SC should not usually interfere by declaration where the matter in issue
is placed within the jurisdiction of another tribunal (in this case, the Public Utilities Board
who were already taking enforcement action.
The respondents are merely special prosecutors seeking condemnation of past
crimes by declaration alone without due process of criminal law; they have no special
rights, which might have warranted granting them an injunction to ensure their future
protection.

Prematurity
Prematurity involves an assertion by the court that, while the applicant may potentially have
good cause of action, the matter is inappropriate for judicial intervention at present. There are a
number of reasons why this might be so. First, there is the possibility that the matter may be
resolved internally or without the need for court intervention.
Also, an advantage of allowing the tribunal to proceed to a conclusion on the issue in question is
that it will be building an evidentiary record that will facilitate subsequent JR.
The following case brings together the issues of prematurity and availability of an adequate right
of appeal in that the applicant for relief was confronted by the dual argument that the tribunal
itself had not finally ruled on the issue that there was a right of appeal from the ultimate decision
of the tribunal anyway.

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Howe v. Institute of Chartered Accountants of Ontario (1994), 19 OR (3d) 483 (CA)


Howe was charged with professional misconduct. Prior to hearing of disciplinary
committee, H provided with materials but not a report of the investigator investigating
committee said it was confidential. H applied for JR on the basis that he was entitled to
see the report. Divisional Court dismissed his claim and he appealed to O CofA.
Per Finlayson (Brooke JA concurring) We are being asked to rule on the
adequacy of the disclosure made to date by the prosecution when we do not have the
means of gauging the significance of what has been disclosed against what is contained
in the investigators report. Agreed with the Divisional Court that this application was
premature.
The courts should only interfere with a preliminary ruling made by an
administrative tribunal where the tribunal never had jurisdiction or has irretrievably lost it.
We should not encourage applications like this which have the effect of
fragmenting and protracting the proceedings except in the clearest cases.
Air Canada v. Lorenz [2000] 1 FC 494 (TD)
L made an unjust dismissal case against Air Canada. 5 days into hearing, Air
Canada learned that adjudicator was acting for a client in an unjust dismissal case
against an employer. Adjudicator refused to provide the parties with any further details
of the case or other unjust dismissal cases on which he was working. Air Canada asked
that he recuse himself on basis of reasonable apprehension of bias. He refused and Air
Canada applied for JR of his ruling.
The judge held that it would be inappropriate for the Court to make a ruling
before the adjudicator has rendered a final decision on the unjust dismissal complaint.
Air Canada put forth an argument that there was a sense of bias and if the judge
rules against it, they can simply put forth an application for judicial review at that stage.
The exercise of the Court's discretion here turns principally on a weighing of two
competing considerations. On the one hand are the possible hardships caused to Air
Canada, and the time and resources that will have been wasted, if the bias question is
not determined prior to the completion of the proceeding before the adjudicator. On the
other hand, there are the adverse consequences of delaying the administrative process
and of countenancing a multiplicity of litigation.
Factors considered:
Hardship to the applicant: This factor cannot be determinative This that a court would have no discretion to dismiss for prematurity when bias is
alleged
Waste: If Air Canada is required to postpone its challenge until the
end of that hearing, and its application is then successful, the resources devoted
to the last 18 days of the hearing will have been wasted.
Delay: Completion of the hearing before the adjudicator has been
delayed by JR application (nearly two years). Also, if the Court were to decide Air
Canada's allegation of bias prior to the completion of the administrative process it
is all too likely that participants in other administrative proceedings may resort to
judicial review for the purpose of delaying the proceedings, or forcing the more
vulnerable party to surrender or settle.

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Fragmentation: A determination of Air Canada's bias allegation at


this time may also proliferate litigation. Fragmentation of the issues raised by an
administrative proceeding is wasteful of court resources and unduly burdens the
administration of public programs.
Strength of the case: Air Canada did not satisfy me that this is a
clear and obvious case of bias. On the other hand, it clearly cannot be
characterized as frivolous either. Air Canada's allegation of bias is by no means
fanciful.
Statutory context: The avoidance of delay and fragmentation of
the issues are factors that should be regarded in the context of this statutory
scheme as carrying considerable weight. Even when an adjudicator is impugned
for bias, it will be the rare case indeed when the Court should determine the
merits of the claim prior to the release of the adjudicator's ultimate decision, such
as when the allegation reveals a very clear case of bias and the issue arises at
the outset of a hearing that is scheduled to last for a significant length of time.

Mootness
By the time an application for judicial review comes on for a hearing or by the time it reaches the
appropriate Court of Appeal or SCC, the dispute will ceased to have practical significance for
the applicant. If the decision of the court will have no practical effect on the rights of the parties
affected, the court will decline to decide the case.

Delay
Delay in commencing proceedings may go either to the jurisdiction or the discretion of the
reviewing court. Failure to adhere to mandatory limitation statutes or provisions will prevent the
court from even considering the case. However, if there is no limitation period, or even within a
limitation period, the courts will on occasion deny relief to the applicant on the ground of undue
delay, the doctrine of laches.
Friends of the Oldman River Society v. Canada (Minister of Transport) [1992] 1 SCR3
The last substantive issue raised in this appeal is whether the Federal Court of
Appeal erred in interfering with the motions judges discretion not to grant the remedies
sought, namely orders in the nature of certiorari and mandamus on the grounds of
unreasonable delay and futility.
Per Majority: The Federal Court of Appeal did not err in interfering with the
motions judge's discretion not to grant the remedies sought on the grounds of
unreasonable delay and futility. Respondent made a sustained effort, through legal
proceedings in the Alberta courts and through correspondence with federal departments,
to challenge the legality of the process followed by the province to build the dam and the
acquiescence of the appellant Ministers, and there is no evidence that Alberta has
suffered any prejudice from any delay in taking the present action. Despite ongoing
legal proceedings, the construction of the dam continued. The province was not
prepared to accede to an environmental impact assessment under the Order until it had

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exhausted all legal avenues. The motions judge did not weigh these considerations
adequately, giving the Court of Appeal no choice but to intervene. Futility was also not a
proper ground to refuse a remedy in the present circumstances. Prerogative relief
should only be refused on that ground in those few instances where the issuance of a
prerogative writ would be effectively nugatory. It is not obvious in this case that the
implementation of the Order even at this late stage will not have some influence over the
mitigative measures that may be taken to ameliorate any deleterious environmental
impact from the dam on an area of federal jurisdiction.
R v. Consolidated Mayburn Mines Ltd. [1998] 1 SCR 706 (Ont.)
Appellant company operated a gold and copper mine. Ontario Ministry of the
Environment concluded that it was abandoned and that transformers containing PCBs
presented a risk of environmental contamination. Despite numerous efforts to have the
company take corrective action, the condition of the site did not change. Ministry issued
an order and required the appellants to address contamination issues. The appellants
did not appeal to the Environmental Appeal Board and basically elected to disregard the
order. When charged by the Ministry with failing to comply with the order, the appellants
submitted by way of defence that the order was invalid.
The trial judge concluded that only the order to drum and store the contaminated
material was valid and ordered the appellants to pay a fine. The Ontario Court (General
Division) allowed the respondent's appeal with respect to the counts relating to the
failure to construct a storage area and to clean, and dismissed the appellants' appeal of
the conviction. The court held that by reviewing the validity of the order, the trial judge
had exceeded his jurisdiction under the Environmental Protection Act and encroached
on the Environmental Appeal Board's functions. The Court of Appeal affirmed that
judgment.
The Court addressed the issue of whether, and in what circumstances, a party
subject to an administrative decision or order can, without having appealed the decision
or order, attack that decision or order in a subsequent judicial proceeding. When it is
necessary for an aggrieved party to exhaust all administrative remedies prior to seeking
a remedy in a judicial forum.
Five factors should be considered in determining whether a collateral attack is
permissible: (1) the wording of the statute; (2) the purpose of the legislation; (3) the
availability of an appeal; (4) the nature of the collateral attack in light of the appeal
tribunals expertise and raison detre (where an attack on an order requires the
consideration of factors that fall within the specific expertise of an administrative appeal
tribunal, this is a strong indication that the legislature wanted that tribunal to decide the
question rather than a court of penal jurisdiction. Conversely, where an attack on an
order is based on considerations which are foreign to an administrative appeal tribunals
expertise or raison dtre, this suggests, although it is not conclusive in itself, that the
legislature did not intend to reserve the exclusive authority to rule on the validity of the
order to that tribunal); and (5) the penalty on a conviction for failing to comply with the
order.
This reflects the general approach aimed at determining the legislatures
intention as to the appropriate forum.

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Misconduct of Applicant
On occasion, the courts will deny a remedy because of the way in which the person seeking
relief has behaved. This follows the old maxim of equity that whoever comes to equity must
come with clean hands.
Homex Realty and Development Co. Ltd. v. Wyoming (Village) [1980] 2 SCR 1011(Ont.)
Homexs illicit dealings with the Atkinson village forced the court to deny the
issuance of the order of judicial review, notwithstanding the fact that Homes had a right
to be heard but did not receive that opportunity.
Homex sought throughout proceedings to avoid the burden associated with the
subdivision of the lands. In preliminary stages of application for JR, it took inconsistent
and contradictory positions. Sought to put its land beyond reach of municipal regs by
checkerboarding.

Waiver
On occasion relief may be denied to an applicant on the basis of waiver or acquiescence
(knowing your rights but not enforcing them). Most commonly occurs where defect complained
of is breach of rules of natural justice or bias. Halifax-Dartmouth Real Estate Board one of
grounds for denial of relief was failure of applicants to object at the hearing to the lack of notice
on one of the charges, this being the basis of the application for certiorari. Dangerous to
participate in a hearing without at least objecting when you believe the decision-maker is
transgressing the rules of justice in some way.
Breach of rules of natural justice is regarded as a category of jurisdictional error and raises
some theoretical problems with using waiver or acquiescence as a basis for denial of relief. As
with the ordinary courts, jurisdiction cannot be conferred on statutory authorities be consent or
acquiescence. How can you ever justify allowing waiver or acquiescence to defeat allegation of
breach of rules of natural justice?

Balance of Convenience
Essentially, the refusal of relief because the applicant had other avenues of recourse available
or on the basis that there was a chance that the completion of the proceedings by the tribunal
would eliminate the applicants concerns is based on the premise that it is more convenient to
use alternative means of solving the problem before, or as a substitute for, seeking judicial
review.
Mobil Oil Canada Ltd. v Canada-Newfoundland Offshore Petroleum Board [1994] Denial of
fair hearing by the board to companies that requested a significant discovery declaration re an
offshore well. Chair of board refused to put matter before board. SCC held that board had not
delegated authority to chair to make such decisions and this was a failure of board to give
procedural fairness. Relief refused b.c SCC had, on cross-appeal by board, held that board
would as a matter of law have had to refuse the application anyway.

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MiningWatch Canada v. Canada (Fisheries and Oceans) [2010] SCC

Money Remedies
It is possible for government to pay compensation for wrongful action/inaction by statutory
authorities. There is a debate about where to draw the line. Hogg and Dicey think that the
occasions for special treatment of govt in litigation should be few.
Arguments in favour of Govt liability:
Issue of resource allocation and ability to pay. British Railways v. Herrington
Lord Reid said that Board had greater ability than private individuals to avoid dangers to
trespassers. Seems to imply that Govts and their agencies, because of their deep
pockets, capacity as loss spreaders/real locators, ability to exercise control via creation
and exercise of statutory powers should be more readily liable than private individuals
for certain kinds of harm.
Also, some activities by Govt in support of public good are dangerous e.g.
nuclear materials. Those who happen to be chance victims of mishaps from such
activities should perhaps be compensated irrespective of fault.
Finally Govts wield power by virtue of public trust so should be held to high moral
and legal responsibility for lawful and prudent exercise of that authority.
These arguments are controversial as a matter of principle and difficult to sustain in real world.
Args based on deep pockets have no relevance when it comes to personal liability of officials
(unless govt has responsibility to indemnify them). Municipalities and other govts are not that
rich either particularly after financial crisis. Also, too much liability might stop govt from
undertaking programs that are in the public interest for fear of being sued.
The Public and Private Dimensions of the Uffi Problem David Cohen

Moneys Mistakenly Paid To and Benefits Mistakenly Conferred on Statutory


Authorities
Traditionally, SCC accepted that subject to very limited exceptions (compulsion) moneys paid
under mistake of law (rather than mistake of fact) were not recoverable, irrespective of whether
context was public or private. Confusion as to when there was a claim for monies paid under an
unconstitutional statute, an ultra vires bylaw/reg, an unlawful agency decision or order. SCC
has now repudiated this position.
Kingstreet Investments Ltd. v New Brunswick (Department of Finance) [2007]
Case involved a claim for repayment of taxes that were held to be
unconstitutional.
Kingstreet Investments ran licensed nightclubs in New Brunswick. They bought
alcohol from provincial retailers, paying a user charge on top of the retail price as

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regulation prescribed. They claimed the user charge was unconstitutional and sought
relief with compound interest.
The Queens Bench held the user charge was an unconstitutional indirect tax, but
denied recovery because Kingstreet had passed the burden on in increased prices.
There was a passing on defence. Moreover ultra vires taxes cannot generally be
recovered. Robertson JA for the Court of Appeal held by a majority that restitution should
be made for money from the time of legal proceedings, as that was the start of the
protest. Before then, the passing on defence applied.
Bastarache J for the Supreme Court, because unjust enrichment principles are ill
suited to determine constitutional issues of ultra vires taxes, that is the wrong approach.
There should be a remedy as of constitutional right. When governments collect taxes
ultra vires it undermines the rule of law. So there must be a right to restitution.
Parliament can prevent fiscal chaos by suspending declarations of invalidity and
enacting valid taxes and applying them retroactively. The passing on defence is
inconsistent with restitution law, it confuses compensation matters, and is not concerned
with the possibility that the claimant may receive a windfall. It is economically
misconceived and creates difficulties of proof. There is no need to consider the counter
arguments to passing on, of protest and compulsion. The six year limitation in the New
Brunswick Limitation of Actions Act s 9 applied. There was no right to compound interest,
which might be warranted to express a moral sanction.
44. There are three major criticisms of the passing-on defence:
first, that it is inconsistent with the basic premise of restitution law; second, that it
is economically misconceived; and third, that the task of determining the ultimate
location of the burden of a tax is exceedingly difficult and constitutes an
inappropriate basis for denying relief.
45. The defence of passing on has developed almost exclusively
in the context of recovery of taxes and other charges paid under a mistake of
law
46. [Quoting Brennan J in the Australian Royal Insurance case...]
The fact that Royal had passed on to its policyholders the burden of the
payments made to the Commissioner does not mean that Royal did not pay its
own money to the Commissioner. The passing on of the burden of the payments
made does not affect the situation that, as between the Commissioner and
Royal, the former was enriched at the expense of the latter
48. Unless the elasticity of demand is very low, the plaintiff is
bound to suffer a loss, either because of reduced sales or because of reduced
profit per sale. Where elasticity is low, and it can be demonstrated that the tax
was passed on through higher prices that did not affect profits per sale or the
volume of sales, it would be impossible to demonstrate that the plaintiff could not
or would not have raised its prices had the tax not been imposed, thereby
increasing its profits even further. LeBel J. referred to these various figures as
virtually unascertainable (para. 205, citing White J. in Hanover Shoe, Inc. v.
United Shoe Machinery Corp., 392 U.S. 481 (1968), at p. 493). LeBel J.
ultimately concluded that [t]he passing on defence would, in effect, result in an
argument that no damages are ever recoverable in commercial litigation because

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anyone who claimed to have suffered damages but was still solvent had
obviously found a way to pass the loss on (para. 206, citing Ground J. in Law
Society of Upper Canada v. Ernst & Young 2002 CanLII 49466 (ON SC), (2002),
59 O.R. (3d) 214 (S.C.J.), at para. 40).
49. ...unlike restitution law, tort law is premised on the concept of
compensation for loss, such that concerns about potential windfalls are
appropriate.

Money Remedies Through Judicial Review


If a public official is in breach of a legal duty to remit a specific sum from an already allocated
budget, this may be enforced by way of relief in the nature of mandamus. But it doesnt mean
courts can force govts to appropriate funds for particular projects.
Hamilton Wentworth (Regional Municipality) v. Ontario (Minister of Transportation) [1991]
Court held it had no authority to require the Ontario Govt to appropriate money
for a highway project that it was alleged had been halted unlawfully. Too great an
interference on Crown/govt prerogative. Different to a situation where court requires
govt to carry out mandates according to law and which require the expenditure of
money. In this case, it represents an exercise of a govts right to allocate funds as it
sees proper. This basic position is not to be affected by arguments of estoppel, reliance
or legitimate expectation.
But prior to Dunsmuir, loss of statutory office or position was the area that gave rise to the
possibility of financial compensation via judicial review. Pre-Dunsmuir, if judgement quashes
decision to dismiss, then what are financial consequences of the judgement? In Nicholson, the
officer was entitled to be paid during the whole intervening period as the decision was void.
However, there were deductions from money earned from his new job.
Irrelevant after Dunsmuir held that private contracts govern

Tort Liability for Unlawful Administrative Action or Inaction


In contract historically Crown had a special position (to be able to breach contracts and not be
held liable for the financial consequences). It causes political controversy though, e.g., Pearson
Airport privatisation process. New govt cancelled the privatisation contract and passed
legislation to nullify deal and deny access to JR. Consortium actually got declaration that govt
acted in breach of contract.
In tort, there is judicial acceptance of the need to apply different or modified standards to the
liability of govts.
For there to be tort liability on the part of a statutory authority, the plaintiffs must be able to fit
their case within a known head of tort liability. In Cooper v. Board of Works for Wandsworth

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District the plaintiff recovered tort damages as the unlawful administrative action gave rise to tort
of trespass.
Administrative action or inaction can also lead to negligent misrepresentation.
More significant is the following problem:
The extent to which ultra vires action or abuse of statutory authority per se constitutes an
independent tort.
In fixing liability in general tort law, courts seldom refer explicitly to the issues of resource
allocation and ability of litigants to act as loss bearers. But, as noted earlier British Railways v.
Herrington Lord Reid said that Board had greater ability than private individuals to avoid
dangers to trespassers. Should be expect higher standards of risk avoidance from public
bodies as opposed to private individuals or corporations (however large)? Relevance of fact
that public bodies operate or regulate enterprises with the potential for horrendous or
unmanageable disaster such as nuclear power plants, defence facilities? Is public purse
bottomless?

Abuse of Power by Statutory Authorities


Ultra vires exercise of power generally does not in itself attract civil liability (see rejection of tort
of breach of statutory duty in Canada v Saskatchewan Wheat Pool) BUT, there are occasions
where the circs in which ultra vires conduct occurs will give rise to a claim. Tort arising out of
misconduct by public officials misfeasance in public office or bad faith in the exercise of public
power.
Roncarelli v. Duplessis [1959] S.C.R. 121, was a landmark constitutional decision of the
Supreme Court of Canada where the Court held that Maurice Duplessis, the premier of Quebec,
had overstepped his authority by revoking the liquor licence of a Jehovah's Witness. Justice
Rand wrote in his often-quoted reasons that the unwritten constitutional principle of the "rule of
law" meant no public official was above the law, that is, they could neither suspend it or
dispense it. Although Premier Duplessis had authority under the relevant legislation, his decision
was not based on any factors related to the operation of the licence, but was made for unrelated
reasons, and was therefore held to be exercised arbitrarily and without good faith.
Frank Roncarelli was a Jehovah's Witness and a restaurant owner in Montreal.
He was prominent in the Jehovah's Witness community and used his wealth to provide
bail security for members who had been arrested by the municipal government.
At the time, sometimes violent tension between the dominant Roman Catholic
community and the Jehovah's Witness community saw increasing arrests of Jehovah's
Witness members for distributing their magazines without the necessary permits under a
city by-law which was later determined to be unconstitutional in Saumur v. The City of
Quebec.
Roncarelli furnished bail for 375 Jehovah's Witness members in three years,
many of whom were arrested multiple times.

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The Chief Prosecutor of the city, Oscar Gagnon, overwhelmed by the number of
Witnesses being arrested and then set free by Roncarelli's intervention, contacted the
Premier who spoke to Edouard Archambault, Chairman of the Quebec Liquor
Commission. Roncarelli's liquor licence was subsequently revoked. Extensive testimony
showed the government actors believed Roncarelli was disrupting the court system,
causing civil disorder, and was therefore not entitled to the liquor licence. Roncarelli was
told that he was barred from holding a liquor licence and that the action was a warning
that others would similarly be stripped of provincial "privileges" if they persisted in their
activities related to the Witnesses.
Roncarelli received news of the revocation in December 1946, and while he tried
to keep his business open without the licence, it was not profitable and he put it up for
sale within six months. Consequently, he brought an action against Duplessis for
$90,000 in damages.
At trial, the Qubec Court of Queen's Bench found in favour of Roncarelli,
however it was overturned on appeal.
In a 6-to-3 decision, the Supreme Court of Canada reinstated the trial decision,
holding that Duplessis wrongfully caused the revocation of Roncarelli's liquor licence.
The six judges who sided with Roncarelli used different legal reasoning to reach
their decision. Three judges wrote that Duplessis had ordered the cancellation which
was outside his authority as premier; two judges stated that although Duplessis had the
power to order the cancellation, he had done so in bad faith; and the sixth judge
concluded the premier was not entitled to immunity as a public official.
Roncarelli was awarded $33,123.53 in damages, a fraction of his claim, plus
costs in the Court of Queen's Bench and the Supreme Court of Canada. Roncarelli's
son, however, maintained that it was a significant moral victory in his father's struggle
against the system.
Odhavji Estate v. Woodhouse [2003]

How to Tackle an Administrative Law Problem Question


LCC Note: I would look to Baker as it is pretty comprehensive see what order the majority
approached the issues to make sure this matches.
The first step is to ask: Is there discretionary reasons why the case should not be allowed to
proceed to judicial review? Is there an alternate remedy? Look at the legislation to see whether
it is Federal or Provincial. Overall, courts will deny an application for judicial review when
alternative procedures are available. However, S. 2(5) of the Judicial Review Procedure Act a
court can still grant relief.
The second step is to ask: What standards of review should the courts apply? This can be
answered by looking at past case law. Starting with CUPE v New Brunswick Liquor Corporation
which introduced the 'Pragmatic and Functional approach' which consisted of three standards of
correctness, reasonableness and patent unreasonableness .

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Subsequent cases reaffirmed this such as Bibault and Southam.


The 'Modern Standard' of review was then approached in Pushpanathan v Canada (Minister of
Citizenship and Immigration) which was affirmed in Baker. Recently there has been a new
approach in Dunsmuir v New Brunswick where the Supreme Court eliminated 'patent
unreasonableness' consequently leaving only correctness and reasonableness. The standard of
review analysis must be analysed before judicial review. To determine whether deference is
owed to a decision, one must then look at the four factors mentioned above, namely: 1) Is there
a privative clause or a right of appeal? 2) What is the level of expertise? 3) What is the purpose
of the Act as awhole and the provision in particular? 4) The nature of the problem (question of
law or fact)? Once a court has looked at these four factors, then they can apply one of the two
standards of review - Correctness (which there is no deference) or Unreasonableness (possibly
patent unreasonableness).
The third step is to ask: Did the administrative body abuse or misuse their discretion? This can
be answered by examining the factors determining the scope of the administrative bodies
discretion: Expertise; nature of the decision; language of the provision and the legislation;
whether the decision is polycentric; intention revealed by the statutory language. When there is
more discretion left to the decision maker, there more reluctance for the courts to interfere.
Adding to this, is to ask: What type of abuse? This can be answered by looking at the Grounds
for Review of abuse of discretion. As well as the question of is there delegated legislation and
whether it is an unreviewable discretionary power (eg privileges - not reviewable; prerogative
powers - reviewable)
Step four concerns the duty of fairness. (As mentioned above) There are two components to the
duty of fairness: participatory rights and protection against bias. Participatory rights - Should a
duty of fairness be imposed? While in Cooper the courts recognized the duty of procedural
fairness is not limited to the judicial process, they retreated from this proposition until it was
resurrected in Nicholson and Knight. The fact that a decision is administrative and affects 'the
rights, privileges or interests of an individual' is sufficient to trigger the application of the duty of
fairness (Cardinal). As well, the fact that a decision maker does not act judicially does not mean
that there isn't a duty to act fairly (Martineau).
Subsequently, does it pass the threshold of procedural fairness? There are three factors for the
existence of a general duty (Knight, as cited in Cardinal) 1) nature of the decision to be made; 2)
relationship between that body and the individual; 3)effect of that decision on the individual's
rights.
There are some exceptions, one being in the case of emergencies. (Also, here one would see if
the
Statutory Powers Procedure Act would apply if in Ontario which you could apply a four part test:
1)Is there a statutory power of decision being exercised?; 2)Whether the empowering legislation
expressly includes or excludes the SPPA (or relevant legislation); 3)Whether the tribunal is
excluded under s. 3(2); 4) If the entity is not expressly excluded, whether an oral hearing would

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be required otherwise by law? (The SPPA will only apply if an oral hearing is required by
law)Was notice given? Is discovery an issue? Is delay an issue? What is the type of hearing
they are seeking? Such as an oral hearing (see Khan) where the right to an oral hearing is the
highest when credibility is in issue. As well participatory rights are not going to ensure an oral
hearing in every issue (Baker ). Is the right to counsel in question? Is there a requirement for
reasons to be provided?
Protection against bias - This is the second fundamental principle of procedural fairness - the
affected parties have the right to a bias free decision. There are two types of bias: 1) Direct or
pecuniary and 2) Reasonable apprehension of bias. The test for this is: What would an informed
person, viewing the matter realistically and practically - and having thought the matter through conclude? (National Energy Board). Factors can include: Kinship, friendship, partisanship.
Whether or not there is an apprehension of bias may depend on the degree of deference
afforded a particular administrative actor.

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