319-Chaster - Law 301 - Final

Sarah Chaster Law 301 – Admin Outline – Fall 2015
Administrative Law
Law 301: Final Outline 2015
Sarah Chaster

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T ABLE OF C ONTENTS
INTRODUCTION TO ADMINISTRATIVE LAW ................................................................................ 5

BASIC PRINCIPLES OF ADMINISTRATIVE LAW ...................................................................................................... 5
What is administrative law? .............................................................................................................................. 5
What are the purposes of administrative law? ......................................................................................... 5
Administrative law versus Constitutional law ........................................................................................... 5
Theories in administrative law ......................................................................................................................... 6
JUDICIAL REVIEW ....................................................................................................................................................... 7
Challenging Administrative Action ................................................................................................................. 7
Remedies in Admin Law ....................................................................................................................................... 8
Constitutional Basis of JR ................................................................................................................................. 10
Re Residential Tenancies Act (1981, SCC) ......................................................................................................................... 12
Crevier v Quebec (1981, SCC) ................................................................................................................................................. 12
THE RULE OF LAW .................................................................................................................................................. 13
Basic Principles of the Rule of Law .............................................................................................................. 13
Competing Theories of the Rule of Law ..................................................................................................... 14
Critiques of the Rule of Law ............................................................................................................................ 17
Reference Re: Manitoba Language Rights (1985, SCC) ................................................................................................ 18
Canada (PM) v. Khadr (2010, SCC) ....................................................................................................................................... 19
Roncarelli v Duplessis (1959, SCC) ....................................................................................................................................... 20
BC v Imperial Tobacco (2005, SCC) ...................................................................................................................................... 21
Regie des Rentes du Quebec (2013, SCC) .......................................................................................................................... 22
Ishaq v CIC (2015, FC) ................................................................................................................................................................ 23
ADMIN LAW IN ACTION: BAKER V CANADA (1999, SCC) .............................................................................. 24
PROCEDURAL REVIEW IN ADMINISTRATIVE LAW .................................................................. 26
INTRODUCTION TO PROCEDURAL FAIRNESS ...................................................................................................... 26
Nicholson (1979, SCC) ................................................................................................................................................................ 27
Canada v Mavi (2011, SCC) ...................................................................................................................................................... 29
General Framework of Analysis for PF Cases ........................................................................................................................ 30
Sources of Administrative Law .................................................................................................................................................... 30
LIMITATIONS/EXCEPTIONS TO PROCEDURAL FAIRNESS ................................................................................ 31
Non-Final Decisions ............................................................................................................................................ 32
Irvine v Canada (1987, SCC) .................................................................................................................................................... 32
Legislative and General Decisions ................................................................................................................ 32
Canada v Inuit Tapirisat (1980, SCC) ................................................................................................................................... 34
Homex Realty v Wyoming (1980, SCC) ............................................................................................................................... 34
CPR v Vancouver (2006, SCC) ................................................................................................................................................. 35
Purely Commercial Relationships ................................................................................................................ 35
Canadian Arab Federation (2013, FC) ................................................................................................................................. 35
Emergency Doctrine ........................................................................................................................................... 36

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LEGITIMATE EXPECTATIONS DOCTRINE ............................................................................................................. 36

Reference re: CAP (1991, SCC) ............................................................................................................................................... 37
CUPE v. MOL (2003, SCC) .......................................................................................................................................................... 37
Mavi (2011) .................................................................................................................................................................................... 38
Agraira v. Canada (2013, SCC) ................................................................................................................................................ 38
SPECIFIC CONTENT ISSUES .................................................................................................................................... 39
Notice ........................................................................................................................................................................ 39
Disclosure ................................................................................................................................................................ 40
Oral Hearings ........................................................................................................................................................ 40
Khan v University of Ottawa (1997, ONCA) ...................................................................................................................... 41
Black v Advisory Council for Order of Canada (2012, FC) .......................................................................................... 41
Kane v UBC (1980, SCC) ............................................................................................................................................................ 42
Right to Counsel ................................................................................................................................................... 43
New Brunswick v JG (1993, SCC)........................................................................................................................................... 43
Right to Call Evidence and Cross-Examine ............................................................................................... 44
Timeliness and Delay ......................................................................................................................................... 44
Duty to Give Reasons .......................................................................................................................................... 44
Mavi v Canada (2011, SCC) ...................................................................................................................................................... 44
Congregation v Lafontaine (2004, SCC) .............................................................................................................................. 45
Newfoundland Nurses’ Union (2011. SCC) ....................................................................................................................... 46
Catalyst Paper v North Cowichan (2012, SCC) ................................................................................................................ 46
CONSTITUTIONAL/QUASI-CONSTITUTIONAL GUARANTEES .......................................................................... 46
Authorson v Canada (2003, SCC) .......................................................................................................................................... 48
Oral Hearings & the Scope of s. 7 ................................................................................................................................................ 50
Undue Delay ......................................................................................................................................................................................... 50
Right to State-Funded Legal Counsel ........................................................................................................................................ 51
New Brunswick v. JG (1993, SCC).......................................................................................................................................... 51
Common-Law Framework under s. 7 .................................................................................................................................. 52
Suresh v Canada (2002, SCC) .................................................................................................................................................. 52
Ex Parte/In Camera Hearings ....................................................................................................................................................... 55
Charkaoui v. Canada (2007, SCC) .......................................................................................................................................... 55
BIAS AND IMPARTIALITY ....................................................................................................................................... 58
Opening Principles .............................................................................................................................................. 58
Baker (Re: Bias) ............................................................................................................................................................................ 59
RAOB: Test and criticisms ................................................................................................................................ 59
R v S (RD) (1997, SCC) ............................................................................................................................................................... 60
Imperial Oil v Quebec (2003, SCC) ........................................................................................................................................ 60
Specific Categories of Bias ............................................................................................................................... 61
Pecuniary Interest ............................................................................................................................................................................. 62
Pearlman v. Manitoba Law Society (1991, SCC) ............................................................................................................. 62
Personal/Business Relationships ............................................................................................................................................... 63
Bennett and Doman v BC (1993, BCCA) ............................................................................................................................. 63
Prior Knowledge or Involvement ............................................................................................................................................... 64
Committee for Justice and Liberty v NEB (1978, SCC) ................................................................................................. 65
Wewaykum Indian Band v Canada (2003, SCC) ............................................................................................................. 65
Attitudinal Bias ................................................................................................................................................................................... 66
Great Atlantic & Pacific Co v. Ontario HRC (1993, ONSC) ........................................................................................... 66
Francis v Minister of C&I (2012, FC) .................................................................................................................................... 67

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Variations in Bias Standards .......................................................................................................................... 68

Old. St. Boniface v Winnipeg (1990, SCC) .......................................................................................................................... 69
Save Richmond Farmland v Richmond (1990, SCC) ..................................................................................................... 70
Nfld Telephone v Nfld (1992, SCC) ....................................................................................................................................... 71
Statutory Authorization Defence .................................................................................................................. 72
Brosseau v Alberta Securities Commission (1989, SCC) ............................................................................................. 73
Cupe v Ontario (2003, SCC) ..................................................................................................................................................... 73
SUBSTANTIVE REVIEW IN ADMINISTRATIVE LAW ................................................................. 74

FEDERAL COURTS ACT (S. 18) ............................................................................................................................. 74
Canada (C&I) v Khosa (2009, SCC) ....................................................................................................................................... 75
ADMINISTRATIVE TRIBUNALS ACT ...................................................................................................................... 78
ATA: Key Aspects .................................................................................................................................................. 78
ATA (SBC, 2004) ........................................................................................................................................................................... 79
Lavendar v Ford (2011, BCCA) ............................................................................................................................................... 80
Definition of PU .................................................................................................................................................... 80
BC Ferries & Marine Workers’ Union (2013, BCCA) ..................................................................................................... 81
Questions Raised by Lavendar Approach .................................................................................................. 81
JJ v School District 43 (2013, BCCA) .................................................................................................................................... 82
Jestadt v Performing Arts Lodge (2013, BCCA) .............................................................................................................. 83
SOR FOR CONSTITUTIONAL DETERMINATIONS ................................................................................................ 83
Dore v Barreau du Quebec (2012, SCC) .............................................................................................................................. 84
Loyola v Quebec (2015, SCC) .................................................................................................................................................. 86

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INTRODUCTION TO ADMINISTRATIVE LAW
BASIC PRINCIPLES OF ADMINISTRATIVE LAW
WHAT IS ADMINISTRATIVE LAW?
• Public Law: Relationship between people & govt

• Judge-Made Law: Inherent jurisdiction of superior courts to supervise exercises
of public authority (but also has statutory sources)
• General Law: Encompasses many diverse issues
• Definition: Admin law concerns the “supervision” by courts of decision-making
made pursuant to statute or the royal prerogative.
• Scope: Does not apply to all public law (e.g. decisions of Parliament)
o Entities constituted by statute – not normally considered governmental but
exercising delegated power – are subject to admin law principles
o When does something not government become governmental?
o Private law: You can do anything the law doesn’t prohibit.
o Public law: You can only do what the law authorizes you to do.
WHAT ARE THE PURPOSES OF ADMINISTRATIVE LAW?
• Red light theorists: To control & constrain government power

• Green light theorists: To foster participation by interested parties in the
d/making process (more supportive of the welfare state)
• “Amber”: Middle ground – to ensure administration performs legislative tasks
effectively
• Tension between the rule of law and the democratic principle of Parliament’s
ability to create administrative bodies & endow them with broad powers
ADMINISTRATIVE LAW VERSUS CONSTITUTIONAL LAW
• Admin law: Focus on exercise of authority by public bodies/govt under a statute

• Con law: Focus on exercises of Parliamentary authority constrained by Charter

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• Growing intersections: Admin law explores constitutional law principles – rule

of law, parliamentary sovereignty, separation of powers, s. 96 courts
o Tribunals increasingly face constitutional/Charter challenges
Admin Law: Pros Admin Law: Cons
Welfare state – increasing need to delegate Inconsistent with notions of responsible

power to admin bodies government/public accountability
Expertise – specialized knowledge Inappropriately supplants the role of the

legislature & judiciary
Broader public participation Decisions of questionable legitimacy can

hugely impact the lives of individuals
Less susceptible to political pressure
THEORIES IN ADMINISTRATIVE LAW
• Legal Formalism: Law as ‘scientific’ rules; decisions made by looking at past

cases & plain meaning of words; no need to consider policy implications
o Analytic legal positivism à values of classic liberalism
o “Diceyan” view of liberty as a negative obligation on the government to
refrain from interfering in the lives of individuals
o Resisted delegation of power to admin bodies
o Saw these bodies as undermining courts/not protecting individual rights
• Progressives: The goal of law is social welfare – emerged w/ the regulatory state
o Liberty as a positive obligation on governments to provide freedom and
basic qualities of life
o Delegation of power from parliament to admin tribunals as both necessary
and inevitable for the welfare state to function
o John Willis: zealous supporter of the administrative state – argued for
wide discretion to administrative bodies to properly take care of citizens
• Today, administrative state is firmly entrenched, but still a lot of debate around
the proper role of admin d/makers, accountability, etc
o Often depends on nature of the decision

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o E.g. arguments for greater role of admin bodies when distributing benefits
or resolving labour disputes, but arguments for restricting admin action
which curtails access to courts for vulnerable ppl (immigrants/refugees)
JUDICIAL REVIEW
CHALLENGING ADMINISTRATIVE ACTION

Non-Judicial Mechanisms Judicial Mechanisms
Internal appeal mechanisms Private law remedies

- Can get $ (unlike JR)
- Usually breach of K or tort claim
(e.g. tort of misfeasance in public
office)
Political process (complain to your MP!) Statutory appeals

- If available, JR usually refused
- Statute sets out how appeal works:
which court hears, by right or leave
Judicial review
- Superior courts have inherent
jurisdiction to hear any matter
Branches of Admin Law
• Procedural: The manner in which authority was exercised

• Substantive: The merits of the decision itself
o Factual/legal basis of the decision
o Errors in interpreting the scope/meaning of statutory provisions

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• NB: There can also be a constitutional review of admin powers (e.g. division of
powers argument or Charter breach)
REMEDIES IN ADMIN LAW
Sources of Review Power
Where do courts get power to review administrative d/making? Three main sources:
1. Original jurisdiction:
- Ordinary courts have jurisdiction if admin d/makers are challenged by way of
direct actions by a citizen in K or tort
- Usually when an individual claims state has infringed his/her private legal right
2. Statutory right of appeal:
- There is no automatic right of appeal for admin decisions
- Look to the statute to see if there is any right of appeal
3. Courts’ inherent judicial review jurisdiction:
- Superior courts in each province may review decisions – constitutional guarantee
of this power found in s. 96
Admin law remedies are:
1. Non-monetary
2. Only applicable to public authorities
3. Discretionary
- Private law: courts have no discretion to refuse
- Admin law: courts can refuse if undue delay, adequate alternative remedy (e.g.
appeal that was ignored), issues are moot, etc
The prerogative writs:
• Traditional channels for remedies in admin law

• Other remedies in addition to the writs: declaration (Khadr – court made a
declaration of his rights) & injunctions (restrain conduct)
1. Certiorari
- Quashing/setting aside a decision (NB: cannot rewrite decision)
2. Prohibition
- Prohibits d/maker from proceeding (pre-emptive action)
3. Mandamus
- Compels d/maker to perform an action

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- Usually cannot be compelled to exercise a certain form of discretion

(exception: Insite decision!)
4. Habeas corpus
- “Show the body” à lawfulness of detention
• The writs were technical, restrictive, difficult

• They were the only way to challenge admin decisions – if no appropriate remedy
(i.e. one of the writs), the admin action could not be challenged
• Lots of fine distinctions – had to try to “squeeze” cases into one of the writs
• Vires: this was critical to the substantive outcome of the case
o If an admin decision was intra vires, a reviewing court could only apply
one of the writs if the decision was so “patently unreasonable” that the
admin d/maker lost jurisdiction
o If the admin decision was ultra vires, a reviewing court could make an
order using one of the prerogative writs (no matter how reasonable or
correct the decision had been)
• Thus, judicial review of admin d/making was very confined for a long time
• Problematic: courts were defensive – governments were basically giving the
jurisdiction of the courts away & it was v hard for them to review admin decisions
o Legislatures started inserting privative clauses; courts responded by
interpreting them very restrictively
o Courts began squeezing anything they could into prerogative writs &
using the term “ultra vires” so often that it lost its meaning
• Finally, reform in the 1970s-1980s à The McRuer Commission
o Led to codification of procedures for admin tribunals in various provinces
(e.g. Administrative Procedures Act)
o Also wanted to extend availability of judicial review/make it easier to use
o Led to the JRPA and FCA (see below) à basically streamlined/clarified
procedures around judicial review, and created the federal court system
• Judicial Review Procedures Act: Governs how to apply for JR
o Supplants prerogative writs, but same kind of relief is available
o For questions of law, courts could review decisions of any statutory
authorities that determined rights and interests of an affected party
o For questions of fact, courts could review the decisions of most judicial or
quasi-judicial bodies
o All provinces enacted statutes that replaced old common-law writs (the
remedies) with a single application for judicial review
o NB: Court cannot refuse a remedy simply because of a technical mistake –
move away from the strict technicality of the past

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o Relief remains discretionary

• Federal court system:
o FC & FCA hear JR of federal administrative bodies
o Created by statute in 1970s
o Similar jurisdiction/power as superior courts, but no inherent jurisdiction
o Source of power is statutory – found in the FCA
Summary: administrative law moved from a complicated, common-law regime

(prerogative writs) to a simpler, statutory-based regime (clarified how to apply for
JR & which court would hear) which is informed by the common law.
CONSTITUTIONAL BASIS OF JR
There is no explicit guarantee of judicial review in our constitution. The FCA gives
statutory authority to federal courts to judicially review federal admin decisions. What is
the source of power for JR of provincial admin bodies?
Ø Admin agencies only have the power conferred to them (no “inherent” power), so
their powers are legally limited – courts have always seen their role as policing
the borders of those legal limits & ensuring admin bodies don’t go beyond them
Ø So historically, even if legislature wrote in privative clauses to shield admin
bodies from this review, courts gave them short shrift & read them very narrowly
Ø Parliamentary supremacy would suggest that nothing prevents legislature from
enacting whatever it wants – however, there is an argument that s. 96 implies a
constitutional guarantee to JR of administrative action which trumps
parliamentary supremacy in this context. See below.
Competing models:
• Ultra vires – courts ensure tribunals don’t extend beyond their delegated power
o But sometimes public law bodies don’t have a statutory foundation, so that
theory fails here
• Common law theory – based on justice and rule of law
• Inherent jurisdiction
o Constitution Act, 1867, s. 96 has been held as guaranteeing the power of
superior courts to conduct JR of provincial administrative action on
jurisdictional grounds
o s. 96 allows federal govt to appoint superior court judges
o Provincial govt appoints administrative tribunals

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o Superior courts have inherent jurisdiction (which includes policing the

authority conferred on admin tribunals); admin tribunals only have that
jurisdiction conferred on them by statute
o “Inherent jurisdiction” means the jurisdiction of superior courts is broader
than whatever may be conferred by statute; thus superior courts may hear
any matter, unless statute specifically says no, or gives exclusive
jurisdiction to another court or tribunal
o If a provincial govt tries to confer inherent jurisdiction on an admin
tribunal (i.e. by shielding them from JR), they are usurping the power of
the federal govt. This would be the same as them creating their own
judiciary & is not allowed.
o Further, s. 96 means superior courts themselves are immune from JR
(superior courts can only review admin tribunals, not each other)
Thus, provinces can’t make “de facto” s. 96 courts by creating admin agencies and then
shielding them from review. To determine whether an administrative tribunal is acting
like a s. 96 court, superior courts have created the following three-part test:
§ Historical Inquiry: Does the power or jurisdiction conform to the power or

jurisdiction exercised by superior, district or county courts at the time of
Confederation? (Tends to be interpreted broadly to protect the power of s.
96 courts). If yes, go to step 2.
§ Judicial Power: Can the function/power be considered a ‘judicial’
function, as opposed to a legislative or administrative power?
o How ‘court-like’ does it look? Primary issues is the nature of the
question which the Tribunal is called upon to decide
o “Where the tribunal is faced with a private dispute between parties,
and is called upon to adjudicate through the application of a
recognized body of rules in a matter consistent with fairness and
impartiality, then normally it is acting in a ‘judicial capacity’.” –
Re Residential Tenancies Act
o The judicial task involves questions of principle
o Is it a private dispute between parties, adjudicated through a
recognized body of rules, consistent with fairness & impartiality?
§ Institutional Context: Consider the power in tis overall institutional setting
to determine if the setting changes the character of the power sufficiently
so that an administrative tribunal should be allowed to exercise it
(notwithstanding that it is a ‘judicial power’ that was exercised exclusively
by superior courts at the time of Confederation)

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o I.e. the “institutional setting” argument can allow a tribunal to

exercise such power provided the power can be characterized as a
“necessarily incidental aspect of”, or “ancillary to” a broader, more
comprehensive and complex regulatory scheme
o Scheme is only invalid when adjudicative function is the sole or
central function of the tribunal so that the tribunal can be said to be
operating like a s. 96 court
§ If yes to all three, then provincial leg. cannot confer this power to an
administrative tribunal
RE RESIDENTIAL TENANCIES ACT (1981, SCC)
Facts: Ontario enacted the Residential Tenancies Act in 1979; created the Residential
Tenancy Commission to oversee and enforce rights and obligations under the Act.
Issue: Is it within the legislative authority of the province to empower the RTC to:
Ø Make orders evicting tenants?
Ø Make orders requiring landlords and tenants to comply w/ obligations imposed
under the Act?
Held: No.
Analysis: Intended effect of s. 96 would be destroyed if province could pass legislation

creating tribunal, appoint members thereto, and then confer on the tribunal the
jurisdiction of the superior courts
Ø BUT, “s. 96 can no longer be construed as a bar to a province seeking to vest an
administrative tribunal with ancillary ‘judicial’ powers formerly exercised by s.
96 courts”
Ratio: SCC provides a framework for the kind of powers a provincial legislature
can give to an administrative tribunal. When is an admin tribunal acting like a s. 96
court, and is thus unconstitutional
CREVIER V QUEBEC (1981, SCC)
Facts: There is a privative clause in the Professional Code of Quebec which says there
can be no recourse in the face of a charge that it exceeded its authority.
Ø The clause bars all judicial review of the Professional Tribunal’s decisions
(administrative d/maker created by the Professional Code) – “no recourse to
Quebec Superior Court by either appeal or judicial review, even if it is alleged
that the Professional Tribunal exceeded its statutory powers”

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Issue: Is the privative clause constitutionally valid?
Held: No.
Ø Insulating an admin agency from review of its jurisdiction essentially makes it a s.

96 court; this is not allowed. Only superior courts can determine the scope of their
own jurisdiction.
Ø A provincially constituted statutory tribunal CANNOT constitutionally be
immunized from review of decisions on questions of jurisdiction
Ø Questions of jurisdiction “rise above and are different from errors of law”
Ø Cannot be left to a provincial statutory tribunal to determine the limits of its own
jurisdiction without appeal or review
Ratio: A provincial legislature cannot create an administrative tribunal and then

purport to immunize it from JR by superior courts. This case constitutionalized the
right to judicial review for jurisdictional questions, even in the face of a privative
clause.
• Basically, the role of superior courts in maintaining the rule of law is so important
that it is given constitutional protection
• Since Crevier, courts tend to read down privative clauses (i.e. they are invalid
only to the extent that they seek to prevent review)
• Same principle applies to federal Parliament – cannot immunize federal
administrative agencies from judicial review
• Highlights the importance of independent judiciary to ensure admin decisions are
authorized (rule of law concerns)
• Result: Today, privative clauses are usually quite broad, and then are read down
to apply to everything (including merits) except questions of jurisdiction – shows
the high deference given to decisions of administrative bodies
• What is an “error of jurisdiction”? à Very flexible – left unclear in Crevier
THE RULE OF LAW
BASIC PRINCIPLES OF THE RULE OF LAW
ROL is a basic, foundational, constitutional meta-principle, with both written and

unwritten sources. No set definition from the SCC. Defining features:
1. A jurisprudential principle of legality

2. Institutional practices imposing legal restraints on the exercise of public power
3. A sense of shared political morality

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à ROL explores the legitimate scope and content of judicial power
As a meta-principle, ROL includes many related principles, including: legality,

separation of powers, responsible govt, judicial independence, honour of the crown, PFJs,
access to justice, etc
Core meaning = principle of legality, i.e. law should always authorize the use and
constrain the risk of the arbitrary use of public power. How does the principle of legality
restrain arbitrary power?
- It constrains the action of public officials

- It regulates the activity of law making
- It seeks to minimize harms that may be created by law itself
“Laws, not men, should rule in a well-ordered political community.” – Aristotle
• ROL = supremacy of law over unconstrained political power

• ROL guarantees that nobody (not even highest ranking officials) is above the law
(all officials bound by the law, even if source of power is prerogative – Khadr)
• ROL is explicitly acknowledged in the preamble to the Constitution Act, 1982
• ROL guarantees legal accountability for everyone in a democratic society
• ROL prevents arbitrariness (which leads to unfair results) – ties into PF
o Arbitrariness can be in procedure (unfair process in reaching a decision),
jurisdiction (statutory body goes outside its enabling statute) or substance
(a biased, illogical or unreasonable decision)
o Arbitrariness can also be found in unconstrained discretionary powers
(dating back to the type of power wielded by absolute monarchs)
o Insite: Recent example of substantive arbitrariness (arbitrary exercise of
discretion in denying the exemption – decision did not conform with
statutory objectives of upholding public health & safety)
o In summary, problems around arbitrariness animate ROL attempts to
ensure the legality, reasonableness & fairness of admin. processes
Problem: Do all these competing definitions mean advocates can basically read into the
ROL whatever they want to support their particular view? (FCA in Imperial Tobacco)
COMPETING THEORIES OF THE RULE OF LAW
1. Diceyan (Formalist, Traditional Approach in Admin. Law)
Albert V. Dicey: 19th century British scholar – popularized the concept of ROL. Hugely
influential – themes below comprise the classic Diceyan account of ROL.

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• Legality: There must be lawful authority for state actions that interfere with the
rights and liberty of citizens.
o “Government must be subject to law”
o Clear legal rules preferred – distrust of discretion (fear of arbitrary use of
power)
o Private people can do w/e they want as long as it isn’t prohibited;
conversely, public officials can only do what is authorized by law
o Dunsmuir (2008, SCC): Reflects Diceyan ideas about the legality principle
§ See para 28
§ “All exercises of public authority must find their source in law”
§ Role of JR is to ensure legality/fairness in the admin. process
• Formal legal equality: Everyone, governments and citizens alike, are subject to
the ordinary law as administered by the ordinary courts. Nobody is above the law.
o Courts are the “final arbiters” of what law is
o Same courts should apply for everyone (i.e. shouldn’t constitute special
tribunals for public officials as opposed to private citizens)
• Judges as guardians: Courts through administrative law are the citizen’s bulwark
against arbitrary government power.
o The role of the court is to protect the rights of citizens against the state
(courts = better protection of fundamental rights than written Constitution)
o Executive and administrative branches of government are particularly
‘dangerous’ and courts needn’t show any deference to them
o This argument is the bedrock for those arguing against the expansion of
the regulatory state
• General notes:
o Judge-made law/unwritten constitution better than written rules (less
vulnerable to executive attempts to curb citizens’ rights)
o Champion of parliamentary sovereignty – this is the source of all ordinary
law and government power
o Strong advocate for judicial intervention (supervise admin. bodies, etc)
o Diceyan model viewed admin bodies with distrust (seen almost as lawless,
not accorded any deference)
• Criticisms: Too much ambiguity, some contradictions (i.e. he supports an
expansive view of ROL but also a strong proponent of Parliamentary sovereignty)
2. Substantive Rule of Law – “Thick” (Roncarelli)
• Departs from formalistic, Diceyan theory by injecting more values into an

assessment of government action

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• ROL as a particular vision of what “justice” requires in substance, i.e. rule of

“good” law – injects a moral content
• ROL can be used to measure the content of legislation for a policy perspective
• Thus substantive ROL reads written rules through substantive purposes/values
• The “thick” version of ROL demands that ROL embody a particular vision of
social justice, structured around moral rights and duties which citizens have
against each other & society as a whole (see Dworkin)
• Compare this to the “thin” view below, which amounts to a constitutional
principle of legality (demands that govt be conducted n accordance with
established & performable norms, but doesn’t have as much of a role in
substantive policy)
à Formal versus Substantive (Summary): Formalist account = administrative law

concerns written rules that govern public decision-makers & courts make sure d/makers
don’t go outside the authority given to them by statute or prerogative.
Substantive account = authority is bound by the purpose and terms of the statute,
regulations, Constitution, and written/unwritten legal principles. Formally valid exercises
of discretion can offend the rule of law and thus be an abuse of power. This is a deeper
principled and purposive approach to understanding ROL.
3. New Minimalist Rule of Law – “Thin” (Imperial Tobacco)
• Joseph Raz: Central principle à law must be capable of guiding its subjects
o Law should be general (not discriminate) and prospective (not retroactive)
o Law should be open and clear - clear rules/procedures for making laws
o Law should be stable & not changed too frequently
o Importance of the independence of the judiciary
o Affirms non-arbitrariness & need for positivist laws
o Basically, law should be prospective, clear, stable, consistent, etc –
citizens must be able to predict the legal responses to their actions &
adjust their behaviour accordingly
o This is a minimalist view (rule of law basically equals legal formalism)
because adherence to the rule of law doesn’t mean resulting laws are
substantively just – it simply means they are valid and meet the minimum
legal conditions considered essential for procedural justice
§ Raz’s minimalist view was that law should be relatively separate
from politics – i.e. we live in a diverse society, and we won’t
always agree on how our fundamental values should be ranked

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compared to each other, so keep policy for the legislatures and

away from courts/legal culture
§ However, it is easier to protect the independence of courts than the
independence of administrative bodies (they are like “governments
in miniature” and policy infuses much of their behaviour and
d/making)
o Retroactivity: Raz argued law should be prospective (i.e. apply forward)
and not retroactive, but Imperial Tobacco confirms there is no
constitutional requirement for prospectivity except in crim. Law
§ Regie des Rentes also said legislature can enact retroactive laws –
it will be assumed they considered the potential unfairness and
went ahead with it
§ Both cases respect Parliamentary sovereignty on this point
• Lou Fuller: Sees law as “a kind of reciprocity” – citizens derive benefits from
following the law, so makers have an interest in making clear laws that are
conducive to voluntary compliance
o Law is not a “one way projection of authority” onto subjects
o Emphasizes principles of accountability and transparency in govt action
o Doesn’t view admin bodies with distrust, unlike the Diceyan view –
rather, if they follow these principles, they should be shown deference
• More restrictive view of ROL than the “thick” version à if ROL is too broad, it
basically becomes a legal philosophy. ROL is not “liberalism” – it is a restrictive
concept with a specific role
• Though law can be informed by unwritten principles, ROL cannot invalidate
legislation based on content that is otherwise constitutional
o Importance of the written constitution
o Less willing to “read in” substantive values/purposes to ROL
o “The rule of law is not an invitation to trivialize or supplant the
Constitution’s written terms. Nor is it a tool by which to avoid legislative
initiatives of which one is not in favour.” – Imperial Tobacco
CRITIQUES OF THE RULE OF LAW
1. Functionalist (i.e. “Traditional”) Critique of the Diceyan Model
• Bora Laskin/John Willis – supported the rise of the regulatory state

• Old-school critique of ROL that says it vests too much importance in the courts

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• Associated with “green light theory” which says administrative law is about
promoting the effective functioning of a modern state (i.e. regulating private
power, promoting greater equality by redistributing income/benefits)
• Courts should take a more restrained/limited role, less interventionist in
overseeing administrative action
• The goal of administrative law is to promote effective functioning of the modern
state – this can be done best through policy and discretion
• Sees policy as a central part of stat. interpretation (shouldn’t separate out law
from policy!)
• Governments as guardians: judges are elitist and shouldn’t hold a monopoly on
how to interpret statutes/make sure they are consistent with legislative intent and
the proper functioning of the administrative state
2. Critique (i.e. “New”) of the Minimalist Mode
• Kent Roach: Critically assessed Canada’s response to 9/11 (enacted many

procedures which defied the rule of law – secret evidence/arrests, etc)
o Criticized Canada’s tendency to expand criminal law as a symbolic act in
response to well-publicized crimes
• Heavily politically charged events are thus used to create laws which defy the rule
of law – this is problematic
• Examples: detainees denied POW/accused status, refused recourse to courts, etc
• Need to bring back substantive ROL values
3. Critique of ROL as a Liberal Concept (i.e. another “New” critique)
• S. Razack: 2008 book “Casting Out”

o Race thinking in the law creates “states of exception”, i.e. two orders of
humanity – one that is excluded to ensure the survival of the other
o Powerful critique of Western law
o States of exception are justified by race and other difference-based
thinking, and is seen as required to preserve the ROL and “civilization”
o Basically, the law excludes people to bolster ROL/its own legitimacy
REFERENCE RE: MANITOBA LANGUAGE RIGHTS (1985, SCC)
Facts: Reference question re: whether Manitoba laws had to be in both languages (for
years, only in English).

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Held: Yes – legislature had to follow its own rules, i.e. enact everything in both
languages. Represents positive law.
Ø “The rule of law requires the creation and maintenance of an actual order of
positive laws which preserves and embodies the more general principle of
normative order. Law and order are indispensable elements of civilized life.”
Ø SCC rules against arbitrary/unauthorized government action
Ø However, declaration of invalidity was suspended until translations were re-
enacted to avoid a legal vacuum & ensure continuity of the rule of law
Ratio: Represents the idea of order in the rule of law, i.e. positive law – a
philosophical view that society must be based upon written rules.
CANADA (PM) V. KHADR (2010, SCC)
Facts: Khadr was imprisoned at Guantanamo for over 7 years. PM asked the SCC to
reverse the decision of the FCA which required the Canadian govt to request the US to
return Mr. Khadr from Guantanamo Bay to Canada.
Held: Partial victory – SCC made a declaration that Khadr’s Charter rights were violated,
but refused to make an order to request his return (left discretion ot the government on
how best to respond to his Charter breach).
Reasons: Khadr’s rights were clearly violated at the hands of Canadian govt officials (no
due process, no lawyer, illegal gathering of info, etc
Ø Argument that the remedy sought is precluded by the fact that it touches on the
Crown prerogative over foreign affairs (i.e. can the courts order the executive
branch to do anything in the area of foreign policy?)
Ø Prerogative power: “The residue of discretionary or arbitrary authority, which at
any given time is legally left in the hands of the Crown” à a limited source of
non-statutory administrative power accorded by the common law to the Crown
Ø Still exists in the context of prerogative power over foreign affairs
Ø However, just b/c power is prerogative doesn’t mean it is shielded from
constitutional scrutiny
Ø Governments can choose between a range of constitutional options, but courts are
still tasked with determining the constitutional limits on any government action
Ø Summary: Courts do have a narrow power to review and intervene on matters of
foreign affairs to ensure the constitutionality of executive action

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Ø However, the best option is to declare his rights were violated, and then leave the
remedy to the discretion of the govt (record is incomplete, court doesn’t know
where negotiations stand/what the best course of action is
Ratio: Government officials are bound by law, even where the source of power is
prerogative and non-arbitrary. Prerogative power is still subject to constitutional
scrutiny. However, in this case the remedy is declaratory only (i.e. declaration of
rights violation) – discretion left to govt on how to proceed in light of this.
RONCARELLI V DUPLESSIS (1959, SCC)
Facts: Dispute between Duplessis (Premier of Quebec) and Roncarelli, a wealthy

Jehovah’s witness & café owner who posted bail for over 400 Jehovah’s Witnesses who
had been jailed or distributing religious pamphlets (Duplessis warns him to stop but
Roncarelli refuses).
Ø Duplessis instructs liquor commissioner to cancel Roncarelli’s licence – licence is

cancelled & he’s told he’ll never get one again
Ø Relevant statute: “An Act Respecting Alcoholic Liquor” à s. 35 allows the
Commission to cancel any permit at its discretion, so commissioner uses this
authority to cancel Roncarelli’s licence
Ø Good example of arbitrary power: unlimited discretion, d/making in bad faith,
considering irrelevant factors in d/making, disregarding the purpose of a statute
Issue: Was this cancellation contrary to the rule of law? (Private law remedy – Roncarelli
privately sues Duplessis for damages).
Held: Yes, against ROL. This was not a lawful act of the Liquor Commission.
Analysis (Rand J.): “Thin” view of ROL says that the Act permits wide discretion, thus
the cancellation of the permit was allowed.
Ø “Thick” view says there is no such thing as absolute and untrammelled discretion
Ø No legislative Act can, without express language, be taken to contemplate an
unlimited arbitrary power
Ø Discretion implies good faith, i.e. carrying out the statute for its intent and
purpose, where malice means carrying out action for a reason and a purpose
which is foreign to the statute
Ø Finally, even if they did have authority to cancel the licence, they didn’t have
authority to cancel it forever
Ø Rand J. highlights procedural/evidentiary difficulties here (these breaches of
public duty may be happening frequently, and we just don’t know about them!)

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Ø Doesn’t matter that the commissioner technically cancelled the licence –

Roncarelli was the “instructing mind” (not off on a technicality)
Ø Premier was acting beyond his public authority (i.e. outside the terms of the
statute) – this was a private act – thus procedural protections which would have
been there were he acting in a public capacity were no longer available to him
Ratio: Illustrates the “thick” substantive rule of law (versus formal approach).
There is no such thing as absolute and untrammelled discretion. Gives “good faith”
and “malice” specialized meaning in an administrative law context.
BC V IMPERIAL TOBACCO (2005, SCC)
Facts: In 2000, BC passed an act allowing government of BC to sue tobacco

manufacturers for recovery of healthcare expenditures incurred by govt in treating
population exposed to those products. Imperial Tobacco challenged the validity of the
Act on 3 grounds: division of power, and two underlying principles of judicial
independence and rule of law.
Issues: Does the Act violate the underlying constitutional principle of a) judicial
independence and/or b) the rule of law?
Held: No. The Act is constitutionally valid.
Analysis: Re: judicial independence à “The Legislature can introduce illogical or

draconian legislation as long as it does not fundamentally alter or interfere with the
relationship between the courts and other key branches of government.” Shift in onus
found in the Act does not interfere with the court’s adjudicative role.
Ø ROL embraces three principles:

i) Law is supreme over both govt officials and private individuals
(protects against arbitrary power)
à LEGISLATION MUST APPLY TO EVERYONE
ii) Creation/maintenance of an order of positive laws which embody
the more general principle of normative order
à LEGISLATION MUST EXIST
iii) The relationship b/w state & individual must be regulated by law
à STATE ACTION MUST BE LEGALLY FOUNDED
Ø None of these principles speak directly to the terms of the impugned legislation,
so ROL can’t be used to invalidate it
Ø Re: ROL à “The rule of law is not an invitation to trivialize or supplant the
Constitution’s written terms” (para 67)

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Ø Court rejects that advocates can try to simply read into the ROL anything which
supports their particular view on what that specific law should be
Ø If we think legislation is unfair, then it is up to us to vote out the government, not
try to use the rule of law as a principle to invalidate that legislation
Ø Retroactive legislation is allowed (except in criminal law)
Ø Thus the Court shows little willingness to read in substantive values to the
purpose of ROL, and instead adopts a view based on the supremacy of the written
terms of the Constitution (the court’s role is to give effect to legislation, as long as
that legislation is constitutionally valid)
Ø In summary: ROL is directed at executive (rather than legislative) action
o ROL is not an invitation to avoid legislative action
o ROL does not ensure a fair trial (the Charter guarantees this in criminal
sphere – to go further and add this to the civil context would trivialize the
written text of the Constitution)
Ratio: Illustrates the new, minimalist, “thin” rule of law. Can’t use ROL to avoid
legislative initiatives of which one is not in favour.
REGIE DES RENTES DU QUEBEC (2013, SCC)
Facts: RR issued decisions under Quebec’s Supplemental Pension Plans Act (SPPA)
which partially terminated some employees’ pension plans. The Court of Appeal said RR
had to review its initial decisions and make some changes. The SPPA was then amended
which adopted RR’s approach and rejected the approach taken by the Court of Appeal.
On another appeal, the Court of Appeal said it’s initial judgment had acquired the
authority of a final judgment and should have been followed by RR.
Held: Res judicata (which prevents parties from relitigating an issue if there has been a
final determination) does NOT prevent the legislature from negating the effects of such a
determination à basically, the legislature can – after a court decision – go back and offer
a binding interpretation of its own law by enacting declaratory legislation
Ø This legislation has an immediate effect on pending cases, meaning it is an

exception to the general rule that legislation is prospective
Ø It was clearly the legislature’s objective to overrule the Court of Appeal’s
decision in order to protect the plan’s members
Ø Administrative d/makers are bound by stare decisis if the judgment of the court
above is based on “good law”. Following the legislature’s intervention, the Court
of Appeal’s direction became bad law, and the RR was entitled to interpret the
SPPA in light of the declaratory provisions (reasoning which gets them around the
issue of stare decisis)

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Ø If a legislature enacts retroactive legislation, “it is presumed to have weighed the

need for the interpretive clarity the provision would bring against the disruption
and unfairness that might result from its retroactive nature” à highlights the
deferential attitude of the courts towards the legislature here
Dissent (McLachlin C.J.): The majority decision disrupts the rule of law. Administrative
d/makers (like RR) cannot second-guess the final judgment of a court (like the Court of
Appeal) on the legality of its decisions. The majority judgment allows the RR to
disregard clear instructions from the Court of Appeal and to revisit an issue that had
already been decided
Ø The issue here isn’t about legislature enacting retroactive provisions

Ø Rather, it is about an administrative d/maker ignoring the directions of a court
that has supervisory jurisdiction over it, which it shouldn’t be allowed to do
Ratio: Legislatures can enact declaratory provisions to existing legislation, and these
provisions can apply to pending disputes – exception to the general rule that
legislation must be prospective. Courts take deferential attitude towards legislature.
ISHAQ V CIC (2015, FC)

Facts - Act says GIC is statutorily authorized to make regulations
regarding ceremonial procedures to followed by citizenship judges
& the citizenship oath
- Citizenship Regulations say the judge will allow the greatest
possible religious freedom during the citizenship oath
- Guideline CP 15 (amended in 2011) says candidates cannot wear
face coverings during the oath-taking portion of the ceremony
Issue Is this guideline unlawful?
Held Yes.
Reasons - FC says this guideline is unlawful; it is a mandatory guideline and
is contrary to the regulations allowing the greatest religious
freedom possible
- Since citizenship can’t comply with both the Policy and the
Regulations, then the regulations prevail (enacted by GIC – higher
legal status than guidelines and policies)
- FCA upholds FC’s decision (though says they don’t necessarily
agree w/ all the reasons), dismisses appeal
- “Thick” vision of ROL? à Maybe, construed “greatest possible
freedom” quite broadly; but generally a “thin”, mechanical appl’n

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of the ROL (simply prioritized regulations over guidelines, focused

on structure of sub-leg)
- Minister can’t make a mandatory policy – this would effectively
create a regulation, and he doesn’t have authority to do that
Ratio Recent case, illustrates different versions of ROL and critiques.
ADMIN LAW IN ACTION: BAKER V CANADA (1999, SCC)
Facts: B came to Canada as a visitor in 1981 & stayed on illegally

Ø Employed as a domestic worker, had 4 children, post-partum depression
Ø She applied for welfare; 2 kids went to dad, other 2 went into foster care
Ø Ordered deported in 1992; applied for exemption on H&R grounds
Ø Her args: making progress in Canada, treatment may not be available in Jamaica,
kids depended on her, emotional hardship if separated
Ø IO notes: “Case is a catastrophe”, B has “no qualifications”, she and her kids will
be strain on social welfare – “Canada can’t afford this kind of generosity”
Chain of Statutory Authority:

Ø Constitution Act 1867, s. 91: Powers of Parliament
Ø Immigration Act: Statute of Canada
o S. 9(1): Sets out general process for PR status (must file outside Canada)
o S. 114(2): GIC may authorize the Minister (not Minister’s choice directly)
by regulation to exempt on H&C grounds – Minister delegates this
authority to immigration officers via regulation, with guidelines published
to guide their exercise of authority (including factors in H&C grounds)
Ø Immigration Regulations, s. 2.1: Minister can exempt any person from any
regulation under 114. Or facilitate their entry, based on H&R grounds
Ø UN Convention on Rights of the Child: Int’l instrument, ratified by Canada
(though not domesticated into Canadian law, so limited applicability)
Statutory Authority re: JR/Appeal:

Ø Immigration Act, s. 82.1(1): Application for JR under the FCA may only be
commenced w/ leave of FC judge
Ø Immigration Act, s. 83(1): FC decision may only be appealed to FCA if the
judgment certified and stated a “serious question of general importance”
Procedural Fairness:
Ø PF is “eminently variable” and context-specific
Ø B argues she was entitled to oral interview, right for kids/dad to make
submissions, right to have counsel present, and provision of reasons. Also RAOB.
Ø PF clearly triggered here (“rights, privileges, interests” affected, per Cardinal v.
Kent). But what is the content? See non-exhaustive list in table below.

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Ø Underlying purpose: Admin decisions should be made using fair and open
procedure, appropriate to the decision being made in its full context, with an
opportunity for those affected to put their views forward & have them considered
Ø New rule: recognized that provision of reasons will sometimes be required
o Benefits: creates better d/making, public confidence, easier of decision is
appealed or reviewed
o Concerns: increased cost/delay
o Reasons may be required depending on:
a) Significance of decision to individual
b) Statutory right of appeal
c) Other circumstances
Non-exhaustive list of factors which determine content of PF:

1. Nature of decision § Does nature, function, process of ADM resemble
judicial process (adversarial, formal) or is it a
discretionary or polycentric decision?
§ More it resembles trial = higher PF required
2. Nature of statutory scheme § What does the statute say about procedures?
§ No appeal procedure (note finality factor) = higher
PF owed
§ Is it a preliminary/investigatory or determinative
stage? (note finality factor = higher PF)
3. Nature of interests at stake § More important/greater impact = higher PF owed
4. Legitimate Expectations § LE can require that certain procedures be
followed, or more extensive procedural rights
§ LE cannot lead to a specific substantive outcome
§ Examples: representations, promises,
undertakings, past practices, or current policies
5. Respect for d/maker’s § Does the statute allow d/maker to choose its own
choice of procedures procedures? Does ADM have expertise in
determining those procedures?
§ Must allow ADM’s to work out a system that is
flexible, adapted to their needs, and fair
à Non-exhaustive list. Balance all factors to determine overall content of PF. No single
factor is determinative/most important.
Application:
Ø LE: UN Convention didn’t create any LE – wasn’t a government representation
about how H&C applications will be decided
Ø Participatory Rights: H&C decision is not very judicial & it is an exception to
the general rule – thus, reduced content of PF.
o But no appeal procedure & very important rights at stake – thus, higher PF
o 5th factor: statute allows Minister lots of flexibility in deciding procedure
& IO’s don’t conduct interviews in every case

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o DOF here is more than “minimal”

o However, oral hearings are not always necessary, and in this case wasn’t
required. Written submissions from her & kids were enough.
Ø Provision of reasons: Was required but IO’s notes satisfied the requirement.
Reasonable Apprehension of Bias:

Ø PF also requires that decisions be made free from RAOB by an impartial d/maker
Ø Applies to IO’s, even if they are subordinate to the actual d/maker
Ø Test in National Energy Board: Whether an informed person would conclude
that the d/maker would not decide fairly
Ø IO’s notes disclose apprehension of bias – stereotypes, link about her mental
health and strain on welfare system of her and her kids
Ø Not subjective – doesn’t matter if he intended this or not
Held: RAOB = procedural fairness violated. Appeal allowed.
Ratio: Court reiterates purpose of DOF and sets out a number of criteria relevant to
determining its content.
NB: Also discusses SOR & review of discretionary decisions – not examinable.
PROCEDURAL REVIEW IN ADMINISTRATIVE LAW
INTRODUCTION TO PROCEDURAL FAIRNESS
The duty of fairness (“DOF”) is context-specific & most common way to attack an
administrative decision.
From Natural Justice to Fairness
• Historical dichotomy: judicial/quasi-judicial decisions subject to full protections

of natural justice, whereas administrative decisions had no procedural protections
• Main principles of natural justice:
1. D/maker must “hear the other side” before deciding (notice, hearing rights etc)
2. Man cannot be a “judge in his own cause” (rule against bias)
• Rigid, formalistic approach – focus on nature of power rather than its impact
• Became indefensible w/ the rise of the modern regulatory state & the importance
of rights affected by ADMs – needed some PF here
• HOL in Ridge v. Baldwin & SCC in Nicholson – abandoned all-or-nothing
approach

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NICHOLSON (1979, SCC)

Facts - Nicholson (police constable) discharged after 16 months w/ no
reasons or hearing rights
- Police Act Regulations said no constable shall be dismissed w/out a
hearing – but exception for employment of less than 18 months
Issue Can Nicholson be dismissed without notice or hearing, i.e. fair procedure?
Held No. There was a duty of fairness owed to Nicholson.
Reasons - Under old CL rules, this was an admin decision, so no PF rights
- SCC overturns old approach – there is a “halfway house” b/w full
natural justice rights (judicial decisions) and no PF whatsoever
- Too difficult to keep distinguishing b/w judicial & admin decisions
- Tho he doesn’t get full hearing/appeal rights available to those
employed 18 months or longer, there is still a “halfway house”
where he gets some procedural fairness
- Thus, natural justice applies in judicial decisions, and in the
administrative realm there is a general duty of fairness
- Content: something less than natural justice. He should have been
told why he was being terminated & given opportunity to respond
Ratio Court abandons “all or nothing” approach re: PF. A general “duty of
fairness” exists in the administrative realm, while full natural justice
exists in judicial decisions.
Post-Nicholson:
Ø Distinction between NJ and DOF loses relevance
Benefits of DOF:
Ø Promotes sound public administration & accountability of public d/makers
Ø Allows individuals to participate in processes which affect them
Ø Thus allows people to be treated w/ dignity and respect
Breach of DOF:
Ø Decision is quashed and remitted to be made in accordance w/ required PF
Requirements of DOF:
1) Right to be heard
2) Right to an independent and impartial hearing
Ø Same basic tenets as natural justice
CL/Statute:
Ø Fairness is a CL concept and can be ousted by statute (subject to Charter)
Ø But can only be done through express language or necessary implication – Kane
Ø Courts presume Parliament intends PF to apply, even if nothing is said – PF is
thus attached to parliamentary sovereignty

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Ø Often codified (either fully, or partially – e.g. notice requirements)
Judicial Review for PF:

Ø Courts will ask:
1) Threshold – does the DOF apply?
2) Content – what does DOF require?
Ø SOR is correctness. If incorrect, quashed & remitted for appropriate procedures.
Ø If remitted, doesn’t necessarily mean substantive decision will be different, but
means decision must be remade in accordance w/ proper procedures
Threshold for PF:

Ø Applies whenever an individual’s rights, privileges or interests are affected –
Cardinal v. Kent
Ø Observance of fair procedures is central to our notions of a ‘just’ exercise of
power – Dunsmuir
Ø As a general rule, we presume that Parliament intended ADMs to deal fairy w/
people and that the DOF applies. This is now the “default” – Mavi
Ø Thus, subject to some limitations/exceptions, DOF applies as a general rule when
rights, privileges or interests are affected (very broad interpretation to these terms)
Ø Covers almost any decision made by public authorities that could affect an
individual
Ø Arises even if no right to substantive outcome (e.g. prisoner has no right to early
release, but if jail sets a parole system, prisoner is entitled to PF in that process)
Ø Can be limited by statute, subject to constitutional limits
Rights, Privileges & Interests:

Ø These are broadly construed – low threshold for PF to apply
Ø Historically, didn’t apply to things like welfare – now, covered under “privilege”
Ø Modern recognition of more non-rights and non-traditional property interests
Ø Examples:
o Property rights (Homex, CPR)
o Liberty rights (Cardinal)
o Being a parent (NB Minister of Health)
o Privileges – being a law student (Khan)
o State benefits (Webb)
o Reputational interests (Irvine)
o Religious observance (Lafontaine)
o Financial interests (Mavi)
Ø Licences: Categories per McInnis (UK case, but relevant to Canada)
1) Forfeiture cases: taking away existing right/status for reasons related to
individual’s fitness – PF applies
2) Pure application cases: denial of licence/state benefit where individual has no
reason to expect a positive decision, and negative decision will not harm their
reputation – no PF

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3) Expectation cases: application made where there is a LE of a favourable

decision – PF applies
Ø Thus whether the right/privilege/interest passess threshold will depend on a)
importance of the privilege/interest, b) the three categories above, and c) whether
there is a slur on the person’s character (only individual, not group or corporation)
Ø Webb: Woman applied as tenant in subsidized housing, was accepted, but then
son made problems and her lease was terminated. Held she was owed PF – thus
DOF extends to privileges/state benefits.
o Timing: no PF before she had applied; but once she became a tenant, she
was “qualified for” and received the benefit
Content of PF:
Ø Eminently variable; as threshold is lowered, becomes v. context-specific
Ø Baker sets out 5 factors, but ultimately depends on facts of each case
CANADA V MAVI (2011, SCC)

Facts - Federal Immigrant Sponsorship Program: citizens/PR can sponsor
relatives to immigrate to Canada
- Underlying value: imp. of family reunification
- If relative arrives & goes on social assistance, sponsor is deemed to
have defaulted & either fed or prov. govt. can recover the cost
- IRPA, s. 145: an amount that a sponsor is required to pay by an
undertaking may be recovered by Crown
- Thus sponsor sign a contractual undertaking w/ govt – Minister
may choose not to take action if sponsor defaults in situation of
abuse “or other appropriate circumstances”
Issue Does this discretion impose on the Minister a duty of fairness?
Held Yes, but minimal DOF required in the circumstances.
Reasons - Undertakings are valid Ks but also statutory, thus enforcement is
not only governed by private law of K
o Distinguishes Dunsmuir (which was governed purely by K law)
– here, terms of K controlled by statute. Tho there is a
contractual aspect to the undertakings, the governing statutory
framework means there is a DOF
- Discretion is minimal, but still exists (i.e. cannot simply forgive
debt, but may delay enforcement action or enter into agreement re:
terms of payment, depending on sponsor’s circumstances)
- Wording of undertakings creates LE that discretion will be
exercised in appropriate circumstances
- PF analysis:
o Statute makes clear serious financial obligation on sponsors
(lower PF)
o Straightforward debt collection (lower PF)

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o Nature of decision is final and specific, no appeal (higher PF)

o High financial burden on sponsors (higher PF)
- Thus w/ this minimal discretion there is a minimal DOF. Requires:
o Crown notify sponsor
o Allow sponsor to explain circs in writing
o Consider any relevant circumstances
o Notify sponsor of govt’s decision
o No duty to give reasons
- Outcome/remedy: declaratory relief (Court makes declaration of
what is required)
Ratio Important & recent decision outlining DOF. Court emphasizes balance
b/w added delay/cost in administering a “fair” process, versus the
damage if a govt is acting unfairly or ADM is basing decisions on
erroneous, incomplete or ill-considered findings of fact/law.
GENERAL FRAMEWORK OF ANALYSIS FOR PF CASES

1. What is the “factual § Who was ADM?
context” of the case? § What was being decided, about whom?
§ What was the statutory regime?
§ Focused on statutory chain of authority
2. Threshold questions § Does PF apply in this case?
§ If PF does apply, why? What did the court say about
why PF is “triggered” in this context?
§ If PF doesn’t apply, why?
3. Content questions § What did PF require here?
§ What “level” of PF was required (high, med., low)? –
use Baker factors to determine this
§ Why was PF set at that level?
§ NB: other sources of procedural rights (governing
statutes, internal policies and guidelines)
4. Outcome and remedy § Was requisite PF met, or was the duty breached?
questions § Does the statutory authorization defence apply?
§ If stat. auth. defence applies, is there a “rights
document” that can “trump” the defence (e.g. Charter)?
§ Assuming PF was not provided, what remedy? Is there
any reason a court might withhold a remedy in JR
proceedings, given these are discretionary?
5. Any other § Does the court state anything else that seems noteworthy
“noteworthy points”? about PF? Its functions, purposes or underlying values?
SOURCES OF ADMINISTRATIVE LAW

1. Governing Statutes § Critical: Start w/ tribunal’s governing statute!

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and Regulations § May not be the same statute pursuant to which the
particular proceeding arises
§ Provisions may create unique procedural requirements
§ Statute also characterizes the tribunal – adjudicative?
Regulatory? Licensing? Review govt decisions?
§ Statutes often reflect normative policy choices (e.g. to
provide income for injured workers, protect investors,
encourage competition, etc)
§ What are the purposes of the statutory scheme?
§ What is the theme of the statutory scheme?
2. Tribunal Rules, § External rules: statutes, regulations, procedural codes
Policies and Guidelines § Internal rules: policies, directives, guidelines,
precedents, procedural orders, notices of hearing, etc
§ Internal rule-making by tribunals is both necessary and
efficient – they are experts in their own processes
§ Externally, tribunals are accountable to a ministry or
department of govt – may be overseen by various means
3. Statutory Procedural § Some tribunals have statutory procedural codes which
Codes set out procedural requirements for admin. proceedings
§ Often set out in tribunals’ enabling legislation
§ Note: a tribunal may be established under one statute but
its proceedings may be governed by another
§ E.g. the BC ATA: few procedural requirements here
(empowers tribunals to make their own rules)
§ Procedural codes are “minimum rules” – CL may
operate to require added procedural protections
4. CL Principles of PF § PF varies widely by context (oral hearing? Disclosure?
LE? All very context-specific).
§ Modern CL approach to DOF: Baker
§ Now, admin. d/making seen on a spectrum between
quasi-judicial and legislative d/making, with PF
requirements varying depending on placement
§ Baker balances legislative intent in admin processes
(efficiency, accessibility, cost) with need to ensure that
processes protect individual interests
§ Clear legislative restrictions can oust CL protections
5. Charter and § If Charter/constitutional rights at issue – does tribunal
Constitutional Law have jurisdiction? (Many now do – look to statute)
LIMITATIONS/EXCEPTIONS TO PROCEDURAL FAIRNESS
PF is the general rule. Three main categories of exception:

1) Where there is not yet a decision (preliminary/investigatory)

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2) Where the decision is “legislative and general”

3) Where the matter is purely private law (e.g. K) rather than public law
NON-FINAL DECISIONS
Ø PF attaches to decisions (not investigations, advisory processes, etc. - Knight)

Ø The more final/determinative the decision, the greater the claim for PF (both as a
threshold question, and to determine content)
Ø Preliminary decisions will likely require PF where:
1) An important issue is at stake
2) Proximity/close nexus b/w preliminary decision and final decision
IRVINE V CANADA (1987, SCC)

Facts - Multi-staged process under the Combines Investigation Act
- Stage 1: Investigation by Director
o Examines witnesses, private proceedings
o No findings of fact, no penalties –recommendation only
o Purpose: to see if there’s enough evidence for stage 2
- Stage 2: Commission receives “statement of evidence” from stage 1
and decides whether there will be a hearing
o If hearing is held, lots of PF accorded
o Result: report and recommendations to Minister
- Stage 3: Spin-off to Minister of Justice (possible after stage 1)
o Minister decides if crim prosecution (if so, full NJ applies)
Issue Restricted role of counsel and cross-X rights at stage 1. Breach of PF?
Held No. PF is minimal; nothing more than has already been accorded.
Reasons - Cannot unduly burden the investigative process
- Just gathering raw material for further consideration; courts
reluctant to intervene here
- At stage 1, Director’s role is purely investigatory – preliminary to
any action which may adversely affect someone
- Emphasis that tis is to catch unfair trading practices; things move
quickly, govt needs to be able to respond quickly
Ratio Courts are reluctant to intervene/mandate PF in the investigative
portion of proceedings.
LEGISLATIVE AND GENERAL DECISIONS
Biggest exception.
Ø Absent a statutory provision to the contrary, PF generally does not apply to the
exercise of legislative power

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Ø Our only procedural rights re: passage of legislation is that it receives three
readings in the Senate & HOC and receives Royal Assent (Authorson v Canada)
Ø Rationale: Parliament = accountable to electorate, not courts
o May be exempt from DOF if interests are too numerous/diverse for
everyone to participate (even if decision isn’t legislative)
o Separation of powers requires this à proceedings in Parliament can’t be
impeached or questioned by courts
Ø Application: Purely ministerial decisions on broad grounds of public policy, or
public bodies exercising legislative functions (Martineau v Matsqui)
o If ADM has been delegated functions that were traditionally performed by
legislature (Knight)
Ø Examples: primary legislation, subordinate legislation, public policy, executive
decisions, ministerial decisions, discretionary decisions, general decisions which
broadly affect public. Typically based on public interest, morality/ethics, politics,
economics, social justice, etc
Ø Problem: Hard to define “legislative”; leads to all-or-nothing results re: PF
Sub-Categories:
Ø Cabinet/Ministerial Decisions:
o Generally, no PF attaches
o As a strict rule, would not be subject to the legislative exemption, but easy
to characterize as legislative (e.g. Inuit Tapirisat)
o Criticisms of Inuit – could be easy to tailor PF to certain Cabinet decisions
– but generally courts want to stay out of this
o Courts are wary to scrutinize decisions of the executive branch of govt
o Per IT, to argue for higher PF, look for:
§ Statute – does it say Cabinet must exercise certain PF procedures?
§ Does the decision relate to/target an individual?
§ Less discretion/objective standard?
Ø Subordinate Legislation:
o Generally, no PF attaches (exception: Homex – specifically targeted him)
Ø Policy Decisions:
o Generally no PF attaches
o Political decisions = accountable to electorate, not courts
o E.g. Imperial Oil à Quebec’s decision to require oil company to
decontaminate site – this was part of their political role – no PF
Summary of principles on LGD:

1. PF does not attach to primary legislation making: Inuit Tapirisat.
2. PF does not normally attach to other types of legislative and general decisions: Inuit
Tapirisat.
3. But if the legislative or general decision is targeted at a particular person, then the decision
is legislative in form, but not in substance and PF will likely attach: Homex.

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4. Simply because a small, identifiable subset of the population is affected by the decision
does not necessarily make it targeted, but if a non-targeted decision overwhelmingly affects
one person more than others, PF may attach: CPR.
5. It is unclear how small the group or deliberate the action against that group must be before
an otherwise legislative and general decision will lose that characterization and be subject
to PF: CPR, LaFontaine.
6. There appears to be decreasing importance, at least with respect to municipal law-making,
as to whether something is “legislative” or not in answering the threshold question: CPR.
The legislative context nonetheless affects the content question: CPR.
7. It is also unclear whether “legislative” and “general” are synonymous.
CANADA V INUIT TAPIRISAT (1980, SCC)

Facts - CRTC (federal tribunal) regulates whether Bell’s rates = reasonable
- IT (intervener) opposes Bell’s application
- CRTC allows Bell’s application
- IT appeals CRTC’s decision; Cabinet heard from utility and CRTC,
but basically left IT out of the proceedings & didn’t hear from them
- IT appeals to Federal Court
Issue Was IT owed PF by the Cabinet?
Held No hearing required. This is legislative action in its “purest form”.
Reasons Factors which suggest a decision is “legislative and general”:
1. Nature of function and statutory power in issue (rate setting,
traditionally always associated with Parliament – delegated to
Cabinet, but still legislative)
2. Not an “individualized decision” (affects many communities,
doesn’t target any individuals, not lis inter partes)
3. Nature of d/maker (Cabinet)
Ratio No PF accorded when decision is “legislative and general.”
Criticisms Overstates the difficulty in applying PF to cabinet decisions. Flexible
standard, could be altered.
HOMEX REALTY V WYOMING (1980, SCC)

Facts - Development company & municipality in dispute over whether
Homex needs to install certain services in a subdivision that it owns
- With no notice, municipality enacts a bylaw effectively prevents
Homex from being able to sell its lots
Issue Did Homex have right to notice & right to be heard before bylaw passed?
Held Yes. But…. Doesn’t grant their remedy.
Reasons - Long-held principle that a statutory must give notice & opportunity
to be heard, before it interferes w/ property rights
- Court accepts Homex’s argument that this decision seems

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legislative, but isn’t b/c it was targeted at them specifically

- BUT, no remedy (discretionary) b/c of Homex’s behaviour
(checker-boarding) – clean hands principle
Ratio Legislative decisions are not exempt from PF if they are targeted at an
individual. However, remedies are discretionary and may be withheld
if the claimant doesn’t come with “clean hands”.
CPR V VANCOUVER (2006, SCC)

Facts - CPR owned land for railroad; then decided to develop land for
residential and commercial purposes
- City of Van enacted bylaw establishing plan which freezes
redevelopment – CPR can only use for uneconomic purposes
Issue Did City owe CPR PF in the bylaw?
Held Yes, but City’s actions didn’t breach the duty.
Reasons - City plan hugely affects CPR, so City owed DOF
- However, City held public hearing process
- Despite this seemingly targeted at CPR,
Ratio City will owe corporation PF if the decision affects corporation.
However, content may not be that high.
PURELY COMMERCIAL RELATIONSHIPS
Employment Context:
Ø If area is governed by private law, then private law remedies govern
Ø If an individual’s employment is governed by contract, then private K law
remedies will apply to their dismissal, regardless of any public nature of job
(erases distinction between public office holders and other employees: Dunsmuir)
General Principles:
Ø Evolving and relevant exception to the DOF
Ø Ministers often have power to conclude contract by statute or by CL power
Ø So where govt exercises its powers to contract, do ordinary K laws apply, or do
administrative rules apply, or a combination?
Ø Mavi: the contractual obligations were so integrated in statutory framework that
PF fairness applied (not governed exclusively by K). Contrast to CAF.
CANADIAN ARAB FEDERATION (2013, FC)

Facts - Minister establishes LINC langague program for newcomers

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- Contracts with CAF to carry out LINC

- CAF gets funding for two consecutive years, but not a 3rd –
Minister says CAF has made statements of hatred/anti-Semitism
Issue Did Minister owe CAF a DOF?
Held No.
Reasons - Strictly commercial relationship
- Nothing in the statute or K conferred the PF rights CAF claimed
- Efficiency concerns: if PF owed here, then every failed applicant
would be entitled to notice
- FCA, instead of deciding on contractual aspects, said CAF didn’t
have sufficient reputational interest to attract PF –strange!
Ratio If government power is primarily contractual (i.e. governed by private
law), then private law remedies apply, not administrative law. Per
Mavi and CAF, must examine how closely integrated the contractual
aspects are w/in the statutory framework.
EMERGENCY DOCTRINE
Ø Emergency situation: Procedural requirements may be suspended

Ø Cardinal v. Kent: DOF applied to seg in dangerous/hostage situations, but no
right to prior notice or opportunity to be heard before the decision
Ø Caution: d/makers can’t “overzealously” find an emergency situation to bypass
PF requirements
LEGITIMATE EXPECTATIONS DOCTRINE
What is LED?
• Legitimate Expectations Doctrine (LED) is a recent development

• Arises if claimant has LE that a) a certain procedure will be followed or b) a
certain result will be reached (Baker)
• Arises if public authority a) makes representations about procedure to be
followed, or b) has consistently followed certain procedures in the past (Agraira)
• Now part of the 5 Baker factors determining the content of PF
What is required to establish LED?
• Govt official makes “clear, unambiguous and unqualified” representations (Mavi)

• Representations are procedural only & can’t conflict w/ statutory duty (Mavi)
• Proof of reliance & proof of prior knowledge not required (Mavi)
What are limitations of LED?

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1. Can give rise to procedures only, not substantive rights

§ If claimant has LE about a certain outcome, they do not have substantive
rights to that outcome, but content of PF may be higher
2. Does not apply to legislative decisions
à Always ask 1) What kind of LE is being claimed and 2) What is the source of that LE?
REFERENCE RE: CAP (1991, SCC)

Facts - Govt changes legislation governing fed-prov transfer agreements
- Created a deficit reduction plan & amended CAP w/out province’s
consent & without giving notice
- Under new plan, “stronger” provinces got less $$ (e.g. BC)
Issue Did fed govt violate BC’s legitimate expectations by amending CAP w/out
BC’s consent? Basically, do the terms of the agreement give rise to LE that
Canada would not introduce a bill to change this w/out BC’s consent?
Held No. LED doesn’t apply.
Reasons - Rejected BC’s argument that this was an executive decision
- The process b/w the introduction and passage of bills is entirely
legislative, so these PF arguments do not apply
- Restraint of this kind would interfere w/ legislative sovereignty
- LED gives rise to procedural rights, not substantive rights
- Further, a govt is not bound by its predecessor (here, conservatives
had taken power & decided to change the CAP)
Ratio LED does not apply to purely legislative decisions. Further, LED
cannot create substantive rights – procedural only.
CUPE V. MOL (2003, SCC)

Facts - Arbitration Act sets out process for hospital disputes
- Process to select arbitrators (panel of 3): hospital management
picks 1, union picks 1, and then Minister picks 1
- Includes process where there is a list of mutually agreeable
arbitrators from which Minister usually chooses the 3rd arbitrator
- 1985: New legislation changes process. Union opposed. Reverts
back to old process; union assumes it will go back to selecting
arbitrator from a mutually agreeable list, but instead Minister
selects a number of retired judges not on the list.
Issue Were Union’s LE (that Minister would only appoint arbitrators from the
mutually agreed upon list) violated?

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Held No.
Reasons -
Minister’s representations were not clear & unambiguous
-
Based on past practice (Minister hadn’t always selected from list)
-
Also based on Minister’s statements (used deliberately ambiguous
language when talking about reverting to old regime)
Ratio For LED to apply, representations must be clear and unambiguous.
MAVI (2011)
Facts -People sponsored immigrants who subsequently went on social
assistance; govt tried to collect debts from the sponsors
Issue Did sponsors have LE that govt would not take enforcement action w/out
considering its discretion not to take enforcement action in cases of abuse?
Held Yes.
Reasons - Undertakings document said govt will consider ways other than
enforcement action to move forward; creates LE to this effect
- However, result is minimal; extended procedural rights (no
substantive outcome), i.e. govt must provide notice & sponsors may
make a case for deferral of debt, but not debt forgiveness
- Analogizes to K law (govt representations will be sufficiently
precise if, had they been made in a private K law scenario, they
would have been capable of enforcement)
Ratio Classic statement on LE (para 68): “Where a govt official makes
representations w/in the scope of his or her authority about an
administrative process that the govt will follow, and the
representations said to give rise to the LE are clear, unambiguous and
unqualified, the government may be held to its word, provided the
representations are procedural in nature and do not conflict with the
decision-maker’s statutory duty.”
AGRAIRA V. CANADA (2013, SCC)

Facts - A seeking PR status, but held inadmissible b/c of membership in
LNSF (terrorist org., according to CIC)
- A applied for ministerial relief under IRPA and was denied
- Seeks JR; argues his LE regarding decision were thwarted
Issue Did A have LE regarding a) that the framework set out in the guidelines
would be followed, and b) that Minister would consider certain factors
(e.g. humanitarian and compassionate factors)?
Held Yes, he had LE, but the obligations were fulfilled.
Reasons - Guidelines create clear, unambiguous procedural framework, so A
had LE that this framework would be followed

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- A did not show that this process wasn’t followed (burden on A) so

his LE was fulfilled
- Further, Minister interpreted “national interest” to include all
factors in the Guidelines, including H&C factors – so A’s LE was
also fulfilled in this regard
Ratio If Guidelines or Minister’s representations set out clear, unambiguous
process to be followed, LE arise. However, if claimant can’t show that
the process was not followed, then LE are fulfilled.
SPECIFIC CONTENT ISSUES
How do you determine the content of PF?
Ø Remember the two central branches:

1) Rule against bias
2) Hear the other side
Ø Go thru 5 Baker factors, balance each, & make overall determination
Ø Look to specific additional content issues explored in this section
o Pre hearing issues: notice, disclosure, delay
o Hearing: oral hearings, right to counsel, right to call evidence/cross-X
o Post hearing: duty to give hearings
Ø Consider any possible bias issues
Ø Conclude & determine whether any PF violations exist
NOTICE
• Basic aspect of DOF (duty of fairness)

• Person needs adequate/reasonable notice in order to exercise their right to be
heard and right to respond
• Basic requirement is the idea of reasonableness
• Rule: “Notice must be adequate in all the circumstances in order to afford those
concerned a reasonable opportunity to present proofs and arguments, and to
respond to those presented in opposition.” – Brown & Evans
• Notice is an on-going duty (parties must be kept apprised of new, relevant issues)
• Sub-Issues:
o Written notice: most common/safest way to notify
o Service: Personal service when stakes are high, otherwise mail, fax or
electronic delivery
§ Newspaper ads can be used for “mass notice” (e.g. CPR)
§ Base it on common sense. Method must be reasonably likely to be
effective.

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o Timing: Enough time to decide whether/how to participate

§ Depends on nature of interests (how serious) and issues (how
complex)
§ Remedy may be adjourning proceedings to give party enough time
o Content/Sufficiency: Specific enough so they know what is at stake
§ CPR: If there is notice but suffers some defect (e.g. content,
delivery) then court unlikely to grant JR unless it has created
substantial prejudice
DISCLOSURE
• Stinchcombe discloser (“all relevant info”) does NOT apply, per May v Ferndale
• DOF requires d/maker to disclose info they rely on so the individual knows the
case they need to meet – but not to the level of Stinchcombe. So the question isn’t
whether disclosure is required, but how much.
• Discovery: i.e. pre-hearing info in hands of 3Ps – typically not afforded.
• Higher threshold for disclosure/discovery in adversarial proceedings or if serious
individual interests are at stake
• If disclosure is provided, may be subject to privilege claims or national
security/other interests (Charkaoui)
• Many tribunals which hold formal hearings have statutory provisions for
disclosure requirements
• Very context-specific
ORAL HEARINGS
• Oral hearings: Some form of face-to-face engagement (doesn’t mean a trial)

• Often demanded but rarely required. If required, oral hearing will be public unless
good reason not to, or statute says will be private
• BC ATA, ss. 41-42: Oral hearings should be open to public
o But may not be if personal security interests, privacy interests, national
security, protection of police informants, etc
o Some “half-way houses” between full publicity and in camera
proceedings (e.g. publication bans, certain testimony taken in private)
In summary: No presumption in PF in favour of oral processes (Nicholson, Baker).

However, oral hearing may be necessary where serious interests are at stake or credibility
is at issue (Khan, Conrad Black). Person claiming refugee status is entitled to an oral
hearing – must be able to tell their story to see if fear of persecution is founded (Singh)

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KHAN V UNIVERSITY OF OTTAWA (1997, ONCA)

Facts - Law student failed evidence which, combined with other low
grades, meant she failed the year
- Khan claimed she submitted a 4th booklet
- Only proof of its existence is her word
- Committee concluded she failed to prove its existence
Issue Did the Committee owe Khan an oral hearing as part of PF?
Held Yes.
Reasons - Whole issue turned on the existence of a 4th booklet – only proof
was her word – credibility clearly at issue – entitled to oral hearing
- Characterization of interests at stake = serious (affects her career)
- Relies on Singh re: oral hearings when credibility at stake
Dissent - Brutal dissent. Khan is “making a mountain out of a molehill” and
is not entitled to oral hearing
- Lower interpretation of interests at stake – simply means one more
semester (doesn’t prevent her from becoming a lawyer)
- Her own poor academic performance also accounts for failed year
- General tenor: keep this crap out of the courts. Leave it to uni.
Ratio PF requires oral hearing if decision turns on credibility.
BLACK V ADVISORY COUNCIL FOR ORDER OF CANADA (2012, FC)

Facts - Black appointed to Order of Canada (Crown’s prerogative power)
- Runs into trouble: renounces Cdn citizenship to become a British
lord, then charged w/ 17 criminal offences in the US
- Informed that his appointment may be terminated; invited to resign
voluntarily or make written submissions
- Refused to resign voluntarily, requested oral hearing
- Secretary to the GG refuses oral hearing & again invites Black to
make written representations & submit any supporting material
- Black seeks JR under s. 18.1 of the FCA; parties agree that a
recommendation re: his termination won’t be made to the GG until
his JR application is determined
Issue 1. Is his JR application premature?
2. Is the Council’s decision to deny an oral hearing immune from JR?
3. Did the Council breach PF in denying an oral hearing?
Held 1. Is JR application premature? No.
§ Typically, interlocutory decisions of admin bodies are NOT
reviewable (prevents fragmentation of proceedings, etc.)
§ However, this is an exceptional circumstance – if denied he
will have no other remedy (purely prerogative decisions
usually not subject to JR & if his appointment was
terminated, couldn’t then be reviewed)

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2. Is Council’s decision immune from JR? No.

§ Prerogative powers typically not subject to JR; however, not
immune where rights or LE of an individual are affected
§ To determine whether exercise of prerogative power is
reviewable, courts look to subject matter, not source – is it
justiciable? Can’t be purely political – needs legal aspect.
§ Black succeeds b/c he has LE of a fair process (Policy
stipulates that termination will be assessed fairly, based on
evidence, after Council has considered all relevant facts)
3. Did Council breach PF in denying oral hearing? No.
§ Court goes through each Baker factor & determines he has
been provided w/ reasonable opportunity to make his case
§ Importance of decision: nobody has a right to an honour!
§ He had LE to a fair process, but not necessarily to oral hrng
§ Courts defer to d/maker’s choice of process, i.e. no oral hrg
Ratio Illustrates when exercises of prerogative power are reviewable and
when Courts will review interlocutory decisions of administrative
bodies. Also is an example of PF not requiring an oral hearing.
KANE V UBC (1980, SCC)

Facts - Tenured UBC prof alleged to have misused grant money
- Universities Act – president can suspend any teacher & report
actions to Board. Teacher can then appeal to Board
- President suspends Kane, who then appeals to the Board
- Kane has oral hearing at the meeting & then leaves so Board can
deliberate. President (member of Board) stays & answers further
questions, though he doesn’t participate or vote
Issue Did Board breach PF by having the President there for deliberations &
asking him questions in Kane’s absence?
Held Yes.
Reasons - Universities needn’t follow court procedures & have high degree of
autonomy
- However, must still follow natural justice – one of which is that a
court cannot hear evidence of one side behind the back of the other
- Kane couldn’t make full answer if some of the case was heard
behind his back – needed to be able to respond to any further info
- High standard b/c high interests at stake (his profession)
Ratio ADMs cannot hold private interviews or hear the evidence of one side
behind the other’s back. This is a breach of PF and natural justice.

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RIGHT TO COUNSEL
• There is no general right to counsel in administrative proceedings – it depends!

• But, PF will sometimes require a right to counsel when a lawyer is considered
necessary in order to give the person an adequate opportunity to be heard
• Right to counsel may be subject to limits – concerns over cost, delay, etc
• Would be too expensive to broadly recognize a right to counsel in all cases; but
PFJs may require right to counsel if deprivation of life/liberty/security is at stake
• Depends on three factors, per New Brunswick v JG:
1) The seriousness of the proceedings
à Required to testify? Is privacy assured, or public? Wrongdoing alleged?
2) The complexity of the proceedings
à Length, number of witnesses, complicated evidence/points of law?
3) The capacity of the affected party
à Education, familiarity w/ legal system, communication, emotional abilities
NEW BRUNSWICK V JG (1993, SCC)

Facts - Province has custody of JG’s kids, wants to extend by 6 months
- She was poor & on social assistance
- She is denied legal aid to oppose Minister’s application (custody
applications not covered by legal aid)
- She argues this decision violates s. 7
Issue Does s. 7 require state-funded counsel in these circumstances?
Held Yes.
Reasons - S. 7 security of the person engaged by removal of children
(psychological integrity)
- State can take custody of kids, but must be done through fair
procedure. Whether this requires state-funded counsel depends on:
i) Seriousness of interests at stake (child’s best interests)
ii) Complexity of proceedings (long, complicated case)
iii) Capacities of individual (level of education, familiarity w/
legal system, level of literacy, etc)
- Additional costs far outweighed by harm if she was not represented
- Parent is valuable source of relevant info; effective participation
(with right to counsel) necessary for best interest of child
Ratio Sets out factors when PF will require state-funded right to counsel.

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RIGHT TO CALL EVIDENCE AND CROSS-EXAMINE
• ADMs can take official notice (like judicial notice)

• Generally, rules of evidence do not apply to administrative hearings (depends on
spectrum – may apply if court-like processes); see ATA ss. 40(1) and (3)
• Right to call & cross-X witnesses is usually part of right to an oral hearing; denial
of this may breach PF
• May not be required if early in the investigatory process (Irvine)
TIMELINESS AND DELAY
• Delay can warrant stay of proceedings if significant prejudice is caused (no

specific timeline)
• Major issue in admin law: many tribunal member/staff are part-time, unpaid
• Blencoe: Undue delay can breach PF and possibly even infringe s. 7. Factors
include causes of delay, impact of delay, and time taken compared to inherent
time requirements of the matter. Very context-specific.
DUTY TO GIVE REASONS
• No historical duty to give reasons; changed in Baker à duty may arise if a)

decision has important significance for individual or b) if there’s a statutory right
of appeal or c) “other circumstances” (broad discretion, context-specific)
• Very flexible form (e.g. Baker, informal IO’s notes were sufficient)
• Rationale is that reasons make better decision-making & public confidence
• PF is about the existence of reasons, not the adequacy of those reasons. Thus if
there are reasons, no breach of PF. Quality of reasons goes to substantive review,
not PF. Thus, threshold to satisfy reasons requirement is very low (Nfld Nurses)
• NB: Remember Alta v Alta Teachers, issues of reviewing reasons which “could
have been given”
MAVI V CANADA (2011, SCC)

Facts - IRPA said money may be recovered by Crown in certain circs from
sponsors
Issue Duty to give reasons?
Held No.
Reasons - Content of PF included: sponsors notified of claim, given
opportunity to explain, have circumstances considered, and notify
the sponsor of gov’ts decision
- PF not extended to include provision of reasons

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- They were asking for an extraordinary exemption which lowers

PF required
- No duty to give reasons because:
1) This was only about debt collection (lower interests at stake,
not personal rights/interests)
2) No appeal provision
3) Reasons are quite obvious
Ratio Illustrates duty to give reasons depending on rights at stake &
existence of appeal provision. If claimant is asking for an exception,
lower PF owed.
CONGREGATION V LAFONTAINE (2004, SCC)

Facts - Congregation of JW’s seeking land to start a congregation
- Per bylaw, need rezoning for “regional community use zone”
- Make 3 appl’ns to change zoning
- 1st: Municipality said no, would increase taxes for residents
- 2nd & 3rd applications: Municipality denied, didn’t give reasons
Issue Was municipality’s denial unlawful because it breached PF?
Held Yes. 1st was okay (gave reasons); 2nd and 3rd were not.
Reasons - Step 1: Threshold. Is PF owed? Yes. Municipality bound by DOF
when making decisions which affect individual rights, privileges &
interests
- Step 2: Content of PF
§ Court applied Baker factors (see below)
i) High deference usually owed to municipalities, but
municipality doesn’t have unfettered discretion
(Roncarelli) – brings ROL into PF analysis
ii) Statutory scheme: final decision, no statutory appeal
– elevates content of PF
iii) Importance of decision: freedom of interest at stake
– high interest
iv) LE: 1st application had reasons, so they had LE that
2nd and 3rd would get reasons
v) Less deference owed – no indication that
municipality relied on its expertise in evaluating
these applications
§ There was a duty to give reasons for refusing
- Step 3: Remedy
§ Remits to municipality
§ Court refuses to substitute its own decision; Congregation
isn’t entitled to a certain outcome, is simply entitled to a fair
procedure
Ratio Illustrates PF owed by a municipality. Incorporates ROL into PF

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analysis. Statutory appeal can be argued two ways (if appeal, argue for
provision of reasons. If no appeal, argue decision is final and thus
content of PF is elevated). Illustrates circumstance where duty to give
reasons is owed.
NEWFOUNDLAND NURSES’ UNION (2011. SCC)

Facts - Arbitrator renders a decision saying time as a casual employee
shouldn’t go towards calculating length of vacation benefits
- Provides reasons, but they are very scant
Issue Can the union challenge the adequacy of the reasons on PF grounds?
Held No.
Reasons - Strategic decision by the Union (correctness standard under PF
easier to argue than reasonableness under substantive review)
- Court rejects this argument. Duty to give reasons is very minimal
Ratio The only requirement in PF regarding reasons is whether they were
given. Their adequacy is a question of substantive review, not PF.
CATALYST PAPER V NORTH COWICHAN (2012, SCC)

Facts - Interesting contrast to Lafontaine
- Paper company challenged BC municipality re: industry tax rights
- Catalyst argues that tax rates are unreasonable, much higher than
residential tax rates
Issue Does the municipality owe Catalyst reasons for its rate setting bylaws?
Held No.
Reasons - Unlike Lafontaine, Court characterizes this as legislative or general
decision-making (not targeted)
- Municipalities may be req’d to issue reasons in quasi-judicial
adjudication
- But this decision was the product of heated debate –can’t expect
councillors to then get together and produce coherent reasons
- Practical considerations!
- Reasons are represented in things like debate, statements by
councillors, policy documents, etc. No formal reasons required.
Ratio Reasons are not required when municipality is passing municipal
bylaws based on discretionary policy choices like tax rate setting.
CONSTITUTIONAL/QUASI-CONSTITUTIONAL GUARANTEES
When will the Charter create enhanced procedural protection?

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Ø We know that, at CL, duty of fairness requires ADMs to give a fair hearing: i.e.
hear the other side and decide the matter impartially
Ø May include other rights (oral hearing, notice, disclosure, counsel, reasons, etc)
Ø But a duty of fairness may also be owed under the Charter – narrower application,
but leads to considerable duties
Ø S. 7 is the only rights-conferring provision that refers to PFJs; this is where
procedural fairness will come up. S. 7 is the primary source of procedural
safeguards within the Charter.
Charter, s. 7:
i) Is “life, liberty and security of the person” engaged?
ii) Is the violation caused by the state? Is it in accordance w/ PFJs?
iii) If no, can it be saved under s. 1?
• CL: can dictate less stringent procedural requirements – but can’t do this to
constitutional rights (e.g. where s. 7 applies) – legislation must conform to
procedural fairness when s. 7 applies
• How to establish s. 7 is engaged?
o Right to life: one’s right to live and be free of state conduct that increases
risk of dying
o Right to liberty: freedom from physical restraint & freedom to make
fundamental life choices
o Right to security: right to be free from physical and psychological harm
• If Charter is engaged, PF comes into play by means of PFJ. If no Charter
engaged, may still be owed PF via CL or CBOR
• Relevant Charter provisions: ss. 1, 7, 52
Canadian Bill of Rights:

• Quasi-constitutional document; non-Charter source of procedural safeguards
• Federal statute, only applicable to federal law
• Important rights protection; cannot be overridden unless Parliament expressly
declares so in its legislation (Authorson)
• Limit: only protects rights which existed in 1960, when it was enacted
• Relevant CBOR provisions:
o S. 1: Recognizes/declares that there exist (without discrimination) the
following rights and fundamental freedoms – (A) right to life, liberty,
security of the person and enjoyment of property, and right not to be
deprived thereof except by due process of the law;
o S. 2: Every law in Canada shall (unless expressly declared by Parliament)
not abrogate or infringe any rights or freedoms, specifically (E) deprive a
person of a right to a fair hearing in accordance w/ PFJS for the
determination of his rights and obligations.
Charter v. CBOR:

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• S. 7 doesn’t include positive rights to housing, economic rights, etc

• CBOR has potentially broader reach than s. 7:
o Covers property (unlike Charter)
o Charter must apply, per s. 32 (i.e. govt actor) – extra hurdle
o Charter govt can justify limitation if in accordance with PFJs – not so
with CBOR (has never actually happened for s. 7, but still…)
o CBOR – it isn’t necessary to show life, liberty or SOP is at stake for
procedural protection to apply
PF v. PFJ:
• PFJ demands, at a minimum, compliance with PF
• So PF is part of the PFJs, per Suresh
• PF is subsumed w/in the PFJs, but doesn’t mean the duty of fairness is
constitutionalized; s. 7 only applies in specific contexts (high threshold)
• The common law of PF informs both the content and application of the PFJs
AUTHORSON V CANADA (2003, SCC)

Facts - Class action by disabled war vets
- Dept. of Vet. Affairs handled benefits/pensions on their behalf, but
didn’t invest the funds, no interest on them til 1990
- Once DVA realized its mistake, it passed a provision attempting to
bar these claims (estimated at $1 billion)
- Veterans sue, claim it violates CBOR ss. 1(A) and 2(E):
§ 1(A) provides right not to be deprived of enjoyment of
property except by due process of law
§ 2(E) provides right to a fair hearing in accordance with PFJs
for the “determination of one’s rights and obligations”
- 3 arguments re: s. 1 violation (that the DVA took away his right to
interest on his funds without due process of law):
§ No procedural rights were accorded prior to passage of the
statutory bar (basically, trying to attach procedural rights to
the passage of legislation)
§ No procedural rights were accorded to Authorson before
statutory bar was applied to his specific case
§ “Due process” can be applied substantively and it protects
him from legislation that expropriates his property w/out
fair compensation – statutory bar was a “determination of
his rights”, thus he should’ve had a fair hearing
- Arguments re: s. 2 violation: Statutory bar was basically a
“determination of his rights”, so he should have had a fair hearing
in accordance w/ PFJs before Parliament expropriated his interest
in the funds
- Crown acknowledged that it owed a fiduciary duty and that interest

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hadn’t properly been credited, BUT claimed the legislation bar on

claims was valid
Issue What was guaranteed by CBOR when vet’s property rights were
extinguished?
Held SCC rejected all arguments & upheld statutory bar. CBOR did not prevent
Parliament from legislating as it had in this case.
Reasons - Parliament reviewed CBOR:
§ Federal statute, only applies to federal law
§ Despite “quasi-constitutional” status, hasn’t been used or
litigated over very much
§ If legislation conflicts, it is inoperative unless Parliament
expressly declares that it operates notwithstanding CBOR
§ CBOR only applies to rights that existed in 1960
§ CBOR provides two protection not included in the Charter:
property (1A) and fair hearing (2E)
- Parliament responded to 3 s. 1(A) args as follows (rejected all):
1. No pre-legislative procedural rights (entitled to 3 readings
and Royal Assent – that’s it!). Due process can’t interfere
w/ right of the legislative branch to determine its procedure.
2. Due process might require notice/opportunity to context if
govt is adjudicating a person’s individual rights. However,
this was a non-discretionary application of this provision to
“incontestable facts” (PF would only arise if it was
discretionary, specific to one person). Due process isn’t
required where govt completely eliminates benefits (rather
than adjudicating one individual’s benefits)
à A taxpayer could not claim procedural protections
against a change in income tax rates that affected him
à S. 1(A) guarantees due process in an individualized,
adjudicative setting; doesn’t apply here
3. CBOR applies to rights that existed in 1960; back then,
legal system recognized the right of legislature to
expropriate w/out compensation, as long as they did so
clearly, which they did here
à Substantive due process rights based on broad
conception of ROL
à Courts have been wary of recognizing these protections
(look to US – American experience using substantive due
process to enforce property and contract rights led to a
constitutional crisis, based on extreme judicial policy-
making – Court was able to enforce policies that had
basically been rejected by the legislators, inappropriate)
à So maybe one day procedural protections will lead to
substantive rights, but for now the Court has been reluctant
to go there

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- Section 2(E) arguments:

à A argues he was entitled to a fair hearing before Parliament
expropriated his interest on pension moneys
à But 2(E) only applies to proceedings before a tribunal/ADM that
determine individual rights and obligations
à Does not impose on Parliament duty to provide a hearing before
it passes legislation – 2(E) only protect individual circumstances in
a proceeding before a court, tribunal or similar body
- Seems like an unjust result. Crown had even conceded breach of
fiduciary duty. But Parliament’s “expropriative intent” was clear
and unambiguous, so too bad for Authroson.
- Confirms unassailability of primary legislation here
Ratio Neither 1(A) nor 2(E) apply to Parliament as it is legislating. If a
statutory bar exists, with no discretion (i.e. blanket application), due
process doesn’t attach (i.e. ‘legislative’ versus ‘individualized’
decision). Court is uncomfortable relying on s. 1(A) in a substantive
sense.
There is no right to be heard before passage of legislation when a

statutory bar operates automatically and without individual
discretion. Due process protections cannot interfere with the right of
the legislative branch to determine its own procedure.
ORAL HEARINGS & THE SCOPE OF S. 7
Singh: 1985 – established that the PFJs include procedural fairness

Ø Refugee claimants had no oral hearings unless written subs set out “reasonable
grounds” of success
Ø S. 7: “Everyone” includes ever human physical present in Canada
Ø SOP = freedom from threat of punishment/suffering, not just actual punishment
Ø Held: S. 7 applied to Singh – may not have had constitutional right to remain in
Canada, but had right for claim to be determined according to PFJs
Ø Key Points: Oral hearings almost always required when s. 7 at stake (v. serious
interests) & always when credibility is at stake
o Example of Charter can overcome clear legislation (where CL cannot)
o Charter got over the threshold for PF to apply; but once over threshold, CL
still determines content of the PF
UNDUE DELAY
Blencoe: Undue delay in resolution of human rights complaint may infringe s. 7 SOP
Ø Possible stigmatization, psychological impairment

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Ø But threshold is v. high – not met in this case

Ø Facts: Sexual harassment complaints, intense media scrutiny, end of his political
career, investigation took 30 months. Despite huge repercussions, and even if
delay was the cause, Court held that state had not interfered with his ability to
“make essential life choices” and thus hadn’t infringed his s. 7 security interest
RIGHT TO STATE-FUNDED LEGAL COUNSEL
Ø SCC has held neither PF nor ROL in admin setting require state-funded counsel.
Ø However, if decision impairs s. 7 interest, state must fund counsel to satisfy PFJs
NEW BRUNSWICK V. JG (1993, SCC)

Facts - Child protection proceedings; state applies to take kids for another
6 months, mom can’t afford lawyer/doesn’t get legal aid
- Sets out doctrinal test for determining when right to counsel arises
Issue Does s. 7 require state-funded counsel in these circumstances?
Held Yes.
Reasons - When will a court speak to an issue, even if it is moot? (In this
case, the custody application had already been heard)
§ Sufficient adversarial context, question of national
importance, is it “elusive of review”?
§ Has the issue become academic (not limited to the concrete
dispute which started things)
§ Three considerations: 1) presence of adversarial context, 2)
concern for judicial economy, 3) need for Court to not
overstep its role
§ Here, the “live controversy” is over, but court used its
discretion to hear it anyway
- Threshold for appl’n of s. 7
§ Court focused on SOP (didn’t consider liberty interest)
§ SOP includes physical and psychological integrity
§ State action must have “serious and profound effect on
psychological integrity” to trigger SOP
§ Objective assessment from a reasonable person
§ Greater than ordinary stress/anxiety, but not to the level of
nervous shock or psychiatric illness
§ Removing child obviously affects psych. integrity
§ S. 7 is not limited to criminal or penal matters
- Why PFJs required counsel here:
§ Appellant conceded that state might sometimes have to
remove children – her concern was re: fairness of procedure
§ PFJs will not ALWAYS require counsel in such cases

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§ Paramount consideration is child’s best interests

§ PFJs give right to fair hearing – parents must be able to
present case effectively (b/c if they can’t, court is deprived
of relevant evidence & can’t make best decision)
§ May require counsel depending on a) seriousness of
interests, b) complexity of proceedings, c) capacity of
parent to participate w/out counsel
§ Here, very important interests were at stake, proceedings
were quite complex and adversarial in nature – she needed
counsel for fair determination of child’s best interests
(couldn’t participate effectively, otherwise)
- NB: Fair hearing will NOT always require counsel – always
depends on three factors above (some hearings short and easy no
expets, no complex evidentiary questions, etc; some interests less
serious – i.e. permanent versus temporary custody orders; parents’
capabilities vary widely depending on education, communication
skills, familiarity w/ legal system, etc)
- Role of s. 1 versus s. 7:
§ Violations of s. 7 saved under s. 1 only in exceptional circs
- Expensive, yes – but govt is not obliged to provide legal aid to
every parent who cannot afford a laywer. Obligation only arises
when counsel is essential to ensure a fair hearing, where parent’s
s. 7 interests are at stake.
- Remedy: Expensive – limited to child apprehension cases.
Ratio When govt action triggers s. 7 interests, it must ensure a fair hearing;
this may include a constitutional obligation to provide state-funded
counsel, depending on the particular circumstances (seriousness of
interests, complexity of proceedings, and capacities of parent).
COMMON-LAW FRAMEWORK UNDER S. 7
Suresh: Baker factors were used to determine procedural rights required by PFJs (though
Court emphasized that the common law was not constitutionalized).
Ø Held that S had a right to disclosure of materials on which Minister based her
decision, and a right to reply to the claims
Ø NB: disclosure may lead to privilege concerns (if a legal opinion)
Ø Duty to give reasons: Baker established this is required wherever important
interests are at stake – reasons were required in Suresh (lots at stake)
o NB: Remember, adequacy of reasons is assessed under substantive
review; if any reasons are provided at all, PF requirement has been met.
SURESH V CANADA (2002, SCC)

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Facts - S: Sri Lankan born Tamil, came to Canada in 1990, entered as a

Convention refugee (means can’t be returned to a country where his
life or freedom would be threatened)
- 1991 applied for landed immigrant status – but before this was
processed, Minister C&I began deportation proceedings (T. Tigers)
- Usually refugee status means person cannot be returned to country
where they face persecution, but exemption in IRPA allows
Minister to exercise discretion where person constitutes a danger to
national security
Process Followed:
1) Security certificate: Minister issues certificate under s. 40.1
alleging S is member of inadmissible class on security grounds
2) Reasonableness hearing: FCTD holds “reasonableness hearing”,
50 day hearing, says certificate was reasonable
3) Deportation hearing: adjudicator held S should be deported (based
on his involvement w/ T. Tigers, even tho no finding that he was
directly engaged in terrorism)
4) Opinion: Same day, Minister of CI told S she was considering
issuing an opinion declaring S to be a danger to national security
§ This “danger assessment” would allow his deportation even
if life/freedom threatened by return to Sri Lanka
§ S given opportunity to respond in writing; does so; includes
materials re: threats/torture faced in Sri Lanka
§ IO reviews material, prepares memo for Minister,
recommends that S be declared danger to national security
§ IO reached this view even tho he acknowledged S hadn’t
committed any acts of violence in Canada or Sri Lanka and
that he faced a risk on returning to Sri Lanka
§ S does not get copy of IO’s memorandum, nor any
opportunity to respond.
§ Based on IO’s memo, Minister issues opinion that S is
danger to security & should be deported. No reasons
required & none given.
- S seeks JR on substantive, constitutional & PF grounds
- Substantive: unreasonable decision by Minister. Constitutional:
violation of ss. 7 and 2. PF: should have had an oral hearing,
needed disclosure, especially IO’s opinion
Issue Are S’s s. 7 rights engaged so as to cross the PF threshold? If so, what
nature of PF is owed?
Held Yes, rights engaged. S entitled to new deportation hearing. Deportation to
face torture under Immigration Act is generally unconstitutional &
procedures did not meet required constitutional standards.
Reasons Ø Govt must be able to respond to terrorism, but can’t undermine fundamental values of
liberty, ROL, and PFJs
Ø Immigration Act is generally constitutional, but Minister must exercise her discretion

53
to deport properly
Ø He had a prima facie case showing risk of torture were he returned to Sri Lanka –
hearing did not provide procedural safeguards to protect his rights
Ø Content of PFJ
§ As per Singh, at minimum the PFJ require compliance with CL requirement.
§ “We look to the common factors not as an end in themselves, but to inform the s.
7 procedural analysis. At the end of the day, the common law is not
constitutionalized; it is used to inform the constitutional principles that apply to a
case.”
§ In determining the content of the duty owed, you must look to the context of the
statute involved and the rights affected – consider 5 Baker factors (here, as in
Baker, the statute was silent regarding the process owed).
Ø Is s.7 triggered?
§ YES, if the claimant can show prima facie that they face a “real possibility” that
they will be subject to torture If deported. Deportation to face torture =
deprivation of life, liberty or security of the person, thus such a deprivation must
be in accordance with POFJ both in substantive and in a procedural sense
1) procedurally:
• Baker factors used to assess content of PFJ
1. Nature of Decision - neutral: somewhat judicial decision b/c weighing of
risks and somewhat individualized; serious nature (>PF) BUT also
discretionary and policy element (<PF)
2. Nature of statutory scheme – more PF: Act contained extensive procedures
to ensure certificates issued fairly but none at all under s.53(1)(b); no
provision for hearing, reasons, right to appeal – basically, no procedures at
all. No appeal procedure is particularly significant.
3. Importance of rights at stake – more PF: possibility of deportation leading
to torture is very serious personal, financial and emotional consequences
4. Legitimate expectations – more PF: Canada has signed Convention Against
Torture (and incorporated into domestic law); prohibits deportation of
persons to states where there are substantial grounds for believing they will
face torture - gives rise to expectation.
5. Deference – less PF: some need to defer to Minister’s choice of procedures.
The statute gave the Minister broad discretion to choose whatever
procedures she wished for the s. 53(1)(b) stage, as well as in the evaluation
of future risk and security concerns. Very difficult decisions – discretion
suggests deference to her choice of procedures.
• Weighing all the factors, the court concluded that s. 7 does not require that a
full oral hearing or complete judicial process be conducted in this case, but
Suresh should get more than the minimal protections he received.
Specifically, it concludes that Suresh is entitled to:
♦ Notice
♦ Disclosure of any materials that the Minister based her decision on
(subject to privilege and/or national security concerns)
♦ An opportunity to respond/make submissions (Minister must consider
his submissions)
♦ Written reasons for the decision that articulate and rationally sustain a
finding why there are no substantial grounds to believe the individual
will be subject to torture (decisions must also emanate from the person
making the decision – i.e. Minister – not the form of advice or
suggestion – i.e. memorandum of the IO)
§ These procedural protections won’t arise in every case – only where refugee
has established threshold showing a risk of torture on deportation. If

54
threshold met, then Minister must meet the minimum duty of fairness
required to fulfill PFJs under s. 7 (i.e. disclosure of all relevant info,
opportunity for refugee to address evidence in writing, and written reasons)
§ Note on reasons: Newfoundland and Labrador Nurses’ Union v Newfoundland
and Labrador raises doubt that inadequate reasons will give rise to violation of
PF à rejects proposition that adequacy of reasons is stand-alone basis for
quashing decision (non-constitutional context) à net result is that if reasons are
provided at all it seems the duty has been complied with, and that the adequacy
of those reasons will be assessed together with the outcome in substantive
review, perhaps on R rather than C standard
§ S. 7 violation not saved under s. 1
NB: See chart (class hand-out) for above info.
Ratio Illustrates the procedural protections to which an individual is entitled
under s. 7. PFJs require, at minimum, compliance with common law
duty of fairness. Court uses Baker factors to determine whether PF
was met: look to CL to inform the s. 7 analysis (CL is not
constitutionalized, it is used to inform constitutional principles).
EX PARTE/IN CAMERA HEARINGS
Ø Post-9/11: new legislation for added power to investigate/prosecute terrorism

Ø IRPA already allowed detention of foreign nationals/PRs suspected of terrorism –
no criminal charges, no presumption of innocence, no due process guarantees
Ø This was challenged in Charkaoui (see below)
Ø Charkaoui II (2008, SCC): SCC reviewed CSIS’s policy of destroying
operational notes (which are used to issue security certificates)
§ Crown has an obligation to retain (and not destroy) these notes
§ When s. 7 is engaged, disclosure requires more than mere summaries of info
(i.e. the notes themselves?) to protect s.7 rights
Ø Summary: Singh to Charkaoui – long line of cases where s. 7 provides procedural
safeguards to non-citizens (historically vulnerable to unstructured discretionary
authority with minimal review rights)
Ø Final question: Is it just to incarcerate foreign nationals/PRs without the
protection of fundamental criminal law principles (e.g. rules of evidence, proof
BRD, presumption of innocence)? SCC hasn’t dealt with this.
CHARKAOUI V. CANADA (2007, SCC)

Facts v Charkaoui was a PR and convention refugee; suspected involvement w/ terrorist org.
v Minister of C&I and Minister of Safety & Emergency Preparedness issued security
certificates pursuant to IRPA s. 77 à led to his detention pending deportation
v Two ministers can jointly issue security certificates against either permanent residents
or foreign nationals on various grounds, including connection w terrorist activities -
issuance of certificate enables immediate detention and triggers a process that can
lead to deportation.

55
v Certificates are then reviewed by federal court judge to determine if the certificates
are reasonable (i.e., conducts a “reasonableness review”):
v Key features of “reasonableness review” process:
Ø Ex parte and in camera (person named on certificate & their lawyer not there)
held at the request of Crown if judge believed that disclosure of any of the info
could undermine national security
Ø Person would then get summary of evidence, but not its sources or details that
might compromise national security
Ø Judge could rely on evidence that would be inadmissible in a court of law (e.g.
uncorroborated hearsay evidence provided by foreign security agencies known to
use torture)
Ø If judge decided certificate was reasonable, no appeal or opportunity for further
judicial review – certificate becomes a removal order
Issue Does the procedure for the “reasonableness review” under the IRPA
infringe s. 7?
Held Yes. Not saved by s. 1.
Reasons v 1. Is s.7 engaged?
Ø Yes. “Doubly” engaged à liberty interest (persons faced detention pending
deportation) and security interest à (might be deported to a place where they
risk torture and life/freedom may be threatened)
Ø Per Suresh, deportation to torture will generally violate the PFJs
Ø Non-citizens do not have an unqualified right to remain in Canada – but the
proceedings are not immune from Charter scrutiny
v 2. If yes, deprivation in accordance with POFJ?
Ø PFJs include PF, per Suresh
Ø Need to ask if the process is fundamentally unfair to the affected person à the
greater the effect on liberty = greater need for procedural protections to meet
duty of fairness and requirements of PFJ (note: the court’s analysis here is a
departure from Baker)
Ø Canvassed PFJ re: judicial independence/impartiality, and said this was okay
Ø PFJs violated because review procedure denies the right to a fair hearing
§ First, fair hearings requires judge to decide case based on all relevant facts &
law – here, judge may be deciding reasonableness of Crown’s case without
having all the evidence adequately tested. Re facts, Judge may not have all
available evidence before him/her. Our system is not inquisitorial, so judges
can’t themselves gather all the evidence. Thus judges might not be “exposed
to the whole factual picture”. Re law, named person cannot raise legal
objections to evidence, legal arguments, etc.
§ Second, person doesn’t know the case they need to meet (based on
undisclosed material) – this principle has been “effectively gutted”
Ø Thus, deprivation of liberty in this case contrary to POFJ (b/c of non-disclosure)
Ø Relationship b/w s. 7 and s. 1:
§ The balance between the interests of the individual and the interests of
society (i.e. national security concerns) must be assessed in the s. 1 analysis,
not s. 7 (undue burden – s. 7 just concerned w/ breach of individual rights)
§ S. 7 asks whether the limit respects the PFJs; s. 1 asks whether a balance is
struck between individual and societal interests

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§ Procedures required to conform to the POFJs must reflect the exigencies of

the security context; but they cannot be permitted to erode the essence of s.7
Ø POFJ’s require that before state detains people, it must accord them fair judicial
process meaning:
§ the right to a hearing before an independent and impartial magistrate, on the
facts and the law
§ The right to know the case against them, and right to answer to that case
v 3. Violation of s.7 saved by s.1?
Ø no, scheme does not choose the least intrusive measures; as there are alternatives
for keeping the info secret (‘special advocates’ with security clearance)
Ø Interestingly, Court’s endorsement of special advocate system is in its s. 1
analysis – so it’s unclear whether the special advocate is consistent w/ PFJs, OR
whether it is inconsistent w/ s. 7 but justified under s. 1 (would be the first time!)
Ø This is important b/c it means a special advocate program in a non-constitutional
context would not accord w/ CL DOF, b/c CL duty informs s. 7 and thus is
similar to the procedural content of s. 7 (so to be valid, would need statutory
language saying so, since legislation can override CL DOF)
v NOTE: Canada has since amended IRPA to provide for special advocate
(independent lawyer to represent named person during in camera hearings – though
they cannot communicate w/ the person during the hearing – still v. secretive)
Key Points (1) What this tells us about PFJs and the contextual nature of the
inquiry about PFJs under s. 7
à PFJs do not guarantee a specific kind of process under s. 7 –
rather, they guarantee a “fair process having regard to the nature of
the proceedings and the interests at stake” – v. context-dependent
à Backing away from Baker
(2) How the Court deals with “national security context” of the
decision in question and the extent to which national security
interests can be taken into account at the s. 7 stage, as opposed
to the s. 1 stage
à S. 7 is not concerned with whether the limit is justified (this is
for s. 1), but whether the limit accords w/ the PFJs
à If s. 7 analysis determines the process is unfair the affected
person, then the limit does NOT conform with the PFJs. Only at
this point does the analysis shift to s. 1 to determine whether the
limit can nonetheless be justified, based on public interest
à National security concerns cannot be used to excuse procedures
that do not conform to the PF requirements at the s. 7 stage
à The context (here, the detention and deportation of FNs) may
impose admin. constraints that make certain procedures difficult,
but then substitutes must be found. PFJs must be respected – that is
the “bottom line”. Yes, the government may need to act quickly, or
maybe full disclosure of info relied on isn’t possible, but we can’t
ignore the serious effects this has on detainees – can’t basically gut
the PFJs using national security as an excuse
(3) What the case tells us about PF generally and especially the

57
role and importance of disclosure – court’s elaboration of the

purpose and functions of disclosure generally is relevant in
both the CL and s. 7 analysis
à Lack of disclosure means person doesn’t know the case they
need to meet (breaches PF)
à National security requirements can limit the extent of disclosure
(right to know the case to be met is not absolute);
à However, given the grave intrusions on individual liberty here, it
is hard to find a substitute for non-disclosure that will satisfy PFJs.
The substitute here is the “reasonableness review” by an FC judge,
but that isn’t enough.
à The only protection for the individual here is the reasonableness
review by the judge, but this isn’t enough. Remember: the judge
isn’t balancing individual and societal interests (that is for s. 1).
The judge is ensuring limits accord with PFJs, and here the basic
requirements of PF haven’t been met, and there is no substitute for
lack of disclosure. The judge only sees what is put in front of him,
can’t ask questions of the named person limited by non-disclosure,
and basically can’t “fill the vacuum left by the removal of the
traditional guarantees to a fair hearing.”
BIAS AND IMPARTIALITY
OPENING PRINCIPLES
Ø Impartiality: State of mind

o Ideal state of mind for a d/maker – haven’t prejudged anything
o Bias is the opposite of impartiality
Ø Independence: State of a relationship
o This is a means of achieving impartiality
o Rules/institutional safeguards ensuring independence (eg ADM from govt)
Ø Rationale: Maintain public confidence in the administration of justice. Ensures
ADMs are not perceived to be:
(I) Making decisions benefiting them or those w/ whom they have relationships
(II) Partial towards certain interests/relationships that negatively impacts a certain
party; and
(III) Making decisions based on irrelevant factors (e.g. prior knowledge)
Rule against bias is one of the oldest CL doctrines. All ADMs who are required to meet
standards of procedural fairness are subject to the rule against bias.
Ø Onus on party alleging bias

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Ø Result: quash any decisions made; proceedings must be reheard by new panel
BAKER (RE: BIAS)

Comments on RAOB § PF requires decision be made free of RAOB
§ Here, duty of impartiality applied to the IO who made the
notes (not just the ultimate d/maker) – his reasons were
used for the ultimate decision
§ Standards for RAOB vary depending on context. Here:
- Highly important decision to affected individuals
- Important to Canada’s interest as a country
- Individualized (rather than general) decisions
- Immigration decisions require sensitivity & recognition
of the diversity of our country
§ Held: IO’s comments give rise to apprehension of bias
- Stereotypes, burden on social welfare system, etc.
RAOB: TEST AND CRITICISMS
Ø Rule against bias applies to all ADMs required to meet standards of PF

Ø Bias must be raised as early as possible. If bias found, decision will be quashed &
re-heard by new d/maker. If no decision, simply replace the d/maker.
Ø Test (Committee for Justice and Liberty v. NEB, 1978 SCC): The apprehension
of bias must be a reasonable one, held by reasonable and right-minded persons
[…] “What would an informed person, viewing the matter realistically and
practically – and having thought the matter through – conclude…”
Ø Thus, apprehended bias is enough – need not be actual (too hard to prove)
Ø Bias can be individual or institutional
Ø Institutional version of test: Could there be “RAOB in the mind of a fully
informed person in a substantial number of cases?” (Lippe, 1991 SCC) – i.e. bias
in repeated institutional action
Ø Standard: Claimant must show real probability/likelihood à mere suspicion
isn’t enough (very high threshold)
Ø Context specific: Bias may be found in one administrative context and not so in
another (e.g. CLJ v NEB and Imperial Oil – both dealt with prior involvement
but led to different results)
o CLJ was adjudicative; Imperia Oil was political/public interest
Ø Greater diversity on bench and among ADMs will hopefully reduce bias & will
bring a diversity of perspectives to the bench
Ø Criticisms: People call the “reasonable person” an enduring fiction – a gendered,
racialized, privileged term that is inherently discriminatory
o NB: the “Reasonable person” is a culturally specific ideal, born from a
specific legal tradition – won’t work in every context

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o E.g. Aboriginal context – decisions are fair when rendered by non-

strangers whom they know and trust – impartiality is not central to
indigenous legal traditions
Explanation of test: R v S (RD)

Importance of context: Imperial Oil
R V S (RD) (1997, SCC)

Facts § White cop arrested 15 yo black kid, charged w/ assault, resisting arrest
§ TJ remarked that cops have been “known to mislead the court” in the
past & have overreacted particularly to non-white groups
§ But said her comments weren’t tied to the cop testifying at trial
Issue Did TJ’s comments give rise to RAOB?
Held No.
Reasons § Must read comments in full context to determine RAOB
§ Defines impartiality as the absence of bias, whereas bias indicates a
state of mind predisposed to a particular result, and partiality occurs
where someone has biases and will allow those to affect their decision
§ Sets out test for RAOB – must simply show reasonable apprehension,
not any actual bias
§ Test has two-fold objective element:
(1) Person considering the alleged bias must be reasonable;
(2) The apprehension of bias must itself be reasonable, in the
circumstances of the case.
§ Must be a real likelihood of bias, more than a mere suspicion – high
threshold (b/c stakes are very high, when bias is found)
§ Onus of demonstrating bias lies on the person alleging its existence
§ Neutrality doesn’t mean judges have to discount their life experiences –
every human is the product of social experience, education, etc. – takes
a nuanced, realistic view on the requirements of neutrality
Ratio Defines bias and impartiality/partiality. Sets out test and factors for
assessing RAOB
IMPERIAL OIL V QUEBEC (2003, SCC)

Facts § QC adopted “polluter-pay” legislation
§ Imperial’s site became contaminated; Minister ordered them to pay for
a site study, including appropriate decontamination measures
§ Minister had previously been involved in earlier failed decontamination
attempts at the same site
§ Minister had previously ordered Marina to decontaminate same site,
after which they had begun residential process
§ But problems re-surfaced – let to legal actions brought against Minister

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by current owners on site, claiming damages against Crown

§ Imperial argues Minister’s decision tainted by bias – b/c of superstition
or appearance that Minister is trying to insulate Crown from legal
consequences of earlier failure to decontaminate site
§ If Imperial has to pay to clean up site, this mitigates damages claims
brought against Crown by current land-owners
§ Thus Imperial grounded its RAOB argument in a conflict of interest
Issue Does the Minister’s decision create RAOB?
Held No.
Reasons Statute
§ Minister has broad power to administer, enforce and implement the Act
and uphold its policies
§ To enforce “polluter-pay” provision, Minister can issue an order – this
is an important enforcement tool – broad discretion allowed to Minister
when issuing order
§ Statute has some procedural rules (beyond the general duty of PF) –
Minister must give 15 days’ prior notice of intention to issue order,
give reasons for the decision, etc)
Procedural Fairness
§ Duty of impartiality is a fundamental obligation of the courts
§ D/makers cannot be influenced by personal interests/outside pressures
§ D/maker must also appear impartial (per NEB test)
Context
§ Impartiality, like all other rules of PF, varies with context
§ ADMs play diverse roles – some are adjudicative, others have policy-
making discretionary functions. Examine full context to determine role
§ Role: Minister’s role is not adjudicative; he is ensuring the
fundamental legislative policies of the act are implemented & has a
responsibility to protect the public interest in the environment
§ B/c of his political (and non-adjudicative) role, duty of impartiality did
not apply. Must comply with procedural requirements only (as set out
in the legislation).
§ Personal interest: Minister was defending public interest and
protection of environment (no personal benefit)
Ratio Establishes importance of context when assessing RAOB. Full scope of
duty of impartiality is required in an adjudicative context; if ADM is
fulfilling a mainly political role, duty of impartiality will not apply.
SPECIFIC CATEGORIES OF BIAS
Four categories where RAOB may arise (broad categories, case may not fit neatly within
one, but useful starting point):

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I. Pecuniary or material interest in the outcome – conflict of interest

II. Personal or business relationships with those involved
III. Prior knowledge or info about the matter in dispute – prior involvement
IV. Attitudinal bias (attitudinal predisposition toward an outcome)
PECUNIARY INTEREST
Direct Pecuniary Interest:

Ø A direct pecuniary interest is certain – i.e. close link b/w interest and d/maker
Ø A direct pecuniary interest, no matter how small, violates the rule against bias
automatically (no need to inquire whether a rsble person would apprehend bias)
Ø A direct pecuniary interest exists if it is not speculative or remote (e.g. Minister
owns a share)
Ø ADM can’t make a decision that advances his or her own cause (old principle) –
monetary gain is part of “advancing one’s own cause”. Very strict.
Ø A Minister will not be seen to have a direct interest if they are exercising a
political function, i.e. acting in the public interest, exercising broad discretion in a
non-adjudicative context (Imperial Oil)
Indirect Pecuniary Interest:

Ø Much more flexible appl’n of test
Ø Indirect pecuniary interests are more speculative, remote, uncertain
Ø No bias if the d/maker’s gain is no more than that of the average person in a
widespread group of benefit recipients
Ø If pecuniary interest is indirect, whether it violates the rule is a contextual inquiry
o How significant is the interest?
o How much does it benefit the d/maker?
o How remote is the link (i.e. how many degrees of separation)?
o How speculative is the interest (how likely it is) given the context?
Remember: rule against bias will not be violated if there is SAD, waiver, or a necessity
(applies to all categories of bias).
PEARLMAN V. MANITOBA LAW SOCIETY (1991, SCC)

Facts § LS took action against Pearlman – alleged “conduct unbecoming”
§ Act allowed costs of investigation into misconduct to be recouped from
a lawyer found guilty of such conduct
§ Pearlman argued RAOB based on pecuniary interest: if he pays costs of
proceeding, costs go to Law Society, and thus members have a
financial incentive to find him guilty
Issue Did the LS have a pecuniary interest in finding Pearlman guilty?
Held No.

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Reasons § Reminder that PF is eminently variable and context-specific

§ RAOB test requires a flexible application
§ Wider context: lawyers are self-regulating, this is important for the
public interest, they must be able to discipline members
§ Indirect pecuniary interest: financial gain here was simply too remote
for members to have a pecuniary interest here (negligible effect on
each lawyer’s fees)
§ First, this was about reimbursements, not profits
§ Second, pecuniary interest was too remote – individual members
wouldn’t really get anything – thus no personal interest
§ Third, this argument is improbable b/c the relative size of costs
recouped makes a difference of a few dollars a year per member
§ SCC also rejected argument that members of disciplinary committee
have interest in fining him guilty b/c it means one less lawyer in the
profession (bold argument – but has been successful in very small
communities!)
Ratio If indirect pecuniary interests are either remote or negligible, they will
not give rise to RAOB.
PERSONAL/BUSINESS RELATIONSHIPS
Ø Balance desirability of having d/makers with experience (and thus possible

connections) in the field with the undesirability of relationships that will influence
d/makers in favour of their connections
Ø Examples: family/friend, collegial/professional relationships, business competitor
Ø Very common in Canada – huge jurisdiction w/ relatively small population
Ø Factors in determining RAOB:
o Is the relationship current?
o How tenuous is the link to the party?
o Business competitors – depends on level of competition, size of field, etc
Marques v. Dylex: Labour board member had previously been a lawyer w/ the firm
acting for the union appearing before his panel.
§ Held: No bias.
§ Factors: Timing (over a year had passed since he’d been involved w/ the firm),
necessity, etc
BENNETT AND DOMAN V BC (1993, BCCA)

Facts § Devine was a member of a panel of commissioners who issued a ruling
under the Securities Act (v. high penalty)
§ Devine is the prez of a competitor co. in the forest products industry
§ Doman argues RAOB (i.e. if he is penalized and his co. can no longer

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sell products into the market, this will help Devine’s company)
Issue Is Devine disqualified based on RAOB as the prez of a competitor co.?
Held Yes.
Reasons § Problem with determining whether Devine would benefit from
Doman’s misfortune is that it’s based on speculation (i.e. arguing that
Devine would benefit from greater availability of bank credit, easier
access to equity markets, more demand – “who can say?”)
§ Decides instead based on RAOB – was there an apprehension, here?
§ Colourful judgment – reasonable person is a “mythical creature”
§ Close case, but decides that a reasonable person would apprehend bias
§ Remedy: Devine not qualified – other two commissioners were okay.
Ratio Illustrates personal/business relationship category of bias. Here, the
director of a company sitting on an inquiry into the conduct of a
competitor company was held to give RAOB.
PRIOR KNOWLEDGE OR INVOLVEMENT
Various ways this can occur:

(1) DM sits on appeal from their own decision (classic example, very rare nowadays,
would usually give rise to RAOB)
• Will usually raise RAOB
(2) DM rehears matter after successful JR application (seems unfair if it was held that
PF wasn’t followed and then goes back to same d/maker)
• RAOB not automatically – must be able to point to something the d/maker
specifically did which raises RAOB (e.g. made emphatic statements,
reached a negative assessment of a party’s credibility)
(3) DM had prior involvement w/ subject matter before he became tribunal member
• E.g. BC Human Rights Tribunal – someone who was an investigator on a
matter now serving as an adjudicator on the same matter
• Raises concerns about prejudgment, inappropriate prior knowledge
• Courts will look to nature and extent of d/maker’s prior involvement
• If DM was actively involved in the actual matter before being appointed to
the ADM, this will generally raise RAOB (see CJL v NEB)
• But where file was one of many & no active involvement, then maybe no
RAOB (Wewaykum)
• Also, no RAOB where Minister is acting in the public interest in a
political role – even if Minister’s prior involvement led the Minister to be
sued (Imperial Oil)
(4) “Overlapping functions”: DM had prior involvement with the subject matter
within the tribunal

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COMMITTEE FOR JUSTICE AND LIBERTY V NEB (1978, SCC)

Facts § Crowe was appointed as Chair of the NEB
§ Prior to being appointed, Crowe had been involved in a Study Group
considering the physical and economic feasibility of a pipeline
§ Crowe & 2 other panel members then chaired a board hearing
applications from companies who wanted to build the pipeline
§ 88 companies at the hearings – only 8 objected
Issue Was Crowe disqualified from chairing the board, based on RAOB?
Held Yes.
Reasons § Clearly no personal, financial or proprietary interest for Crowe
§ The question is an apprehension of bias, not any actual bias
§ Analogizes to lawyers, who refrain from sitting on cases involving
former clients, even if they hadn’t participated in the case
§ Functions of board and Study Group are different, but issues are same
§ Rationale – need public confidence in impartiality of ADMs
§ Why was bias apprehended here?
- Nature of scenario (competing companies/interests, closer to classic
adjudicative scenario rather than general policy decision)
- Crowe was heavily involved previously (working out terms,
dealing with plans to implement the pipeline, etc)
§ De Grandpre J, in dissent, sets out test for RAOB
- Would not have found RAOB – small population, we need people
with expertise to staff the board, can’t disqualify them easily
- Characterizes proceedings as policy-making rather than judicial
Ratio Sets out test for RAOB. Bias based on prior involvement will depend
on nature of scenario (adjudicative or legislative/policy-making?) and
degree of prior involvement.
WEWAYKUM INDIAN BAND V CANADA (2003, SCC)

Facts § Binnie J dismissed an appeal from two bands who sued Crown over
entitlement to reserves on Vancouver Island
§ Binnie had been Associate Deputy MOJ in early 1980s (at the time
when these claims were in their early stages) – had been responsible for
all litigation – supervisory authority over 1000s of cases
§ FOI request showed Binnie had received some info regarding the claim
and had attended a meeting where it was discussed
§ Binnie recused himself from any further proceedings on the matter and
said he had no recollection of involvement in the case
§ Both bands agreed actual bias wasn’t at issue, but alleged RAOB
Issue Did Binnie’s prior involvement give rise to RAOB?
Held No.
Reasons § Heavy presumption of judicial impartiality; onus on party alleging bias

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§ Each case is very context and fact-specific to determine bias

§ Abundance of caution – judges often recuse, even when not necessary
§ Binnie’s involvement was limited, no active role, never participated in
the litigation. 15 years ago, overseeing thousands of cases – a
reasonable person wouldn’t apprehend bias here
Ratio If prior involvement was a limited supervisory and administrative
role, this isn’t enough prior involvement to lead to RAOB.
ATTITUDINAL BIAS
When will pre-existing attitude/disposition held by d/maker lead to disqualification?

Ø Baker: notes of IO gave rise to RAOB (based on stereotype, strong statements)
Ø Generally no RAOB:
o If statutory scheme/nature of d/maker reflects desire for peer review or
having a d/maker with expertise in the field (even if one-sided)
o Where d/maker is an expert (even if one-sided) and makes general public
statements/advances opinions (not amounting to “Advocacy” related to the
regulatory sector they are involved in (Great Atlantic)
Ø May be RAOB:
o If d/maker makes a statement during proceedings that declares their
opinion on an issue which has/is to be decided in the proceedings (G.A.)
Ø RAOB often raised of d/maker “personally descends” into dispute by deciding the
same type of issue for which they were previously a complainant before the ADM
on which they now sit (Great Atlantic)
Ø What if d/maker was a public advocate for a “Cause” related to the issue before
them? No clear answer.
Ø These principles apply to an adjudicative context but not necessarily to a
legislative and polycentric context (Nfld Tel)
GREAT ATLANTIC & PACIFIC CO V. ONTARIO HRC (1993, ONSC)

Facts § Gale filed complaints of sex discrimination against employer/union
§ Professor Backhouse appointed to Board of Inquiry to hear complaints
§ Backhouse had a background as an “advocate” in issues around sex
discrimination (law prof, wrote on it extensively)
§ She was also party in proceedings which were still outstanding in front
of the HR Commission (though inactive, had never been withdrawn or
formally settled)
§ Many days of hearing from March to June
§ In April, employer raised RAOB against the Board – submissions on
bias were heard by the Board but rejected
§ In April, Backhouse wrote to Commission asking her name be
withdrawn form the list of complainants on the outstanding matter

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§ Applicants brought JR appl’n to discontinue hearings, based on bias

Issue Was there RAOB (and perhaps actual bias) on the part of Professor
Backhouse?
Held Yes.
Reasons § ONSC decided on second issue only, i.e. that she was involved in
outstanding proceedings (didn’t address whether her advocacy around
sex discrimination would disqualify her based on bias)
§ Because she had “personally descended” as a party into the very arena
that she was now presiding over, there was RAOB
§ She had very personal ties (had even selected one of the parties before
her as her own advocate in her personal complaint)
§ Remedy: Proceedings before the Board are quashed. Minister can
appoint another board to adjudicate the remaining complaints against
the union, if so requested.
Ratio If a party “personally descends” into the arena over which they are
presiding (i.e. personal party to a complaint) RAOB may be found.
FRANCIS V MINISTER OF C&I (2012, FC)

Facts § Francis seeking refugee status b/c she faced discrimination as a gay
woman in Saint Vincent
§ Case heard by Gallagher J of the Refugee Protection Division
§ 5 days into case, Francis ask that he recuse himself due to bias
§ Based on comments he made at hearing (a number of SV citizens are
now established in Canada “because of the refugee system”) &
subsequent discovery of comments he had made in academic writing
on immigration policy (critical of certain aspects of processing refugee
claims & negative impact of “mass immigration” on social cohesion)
Issue Did his comments/previous writing give rise to RAOB?
Held No.
Reasons § Starting point: strong presumption in favour of the impartiality of the
d/maker – onus on party alleging bias to rebut this
§ Threshold for allegation is very high
§ Why no bias here?
- Comments must be contextualized
- He was generally evaluating the refugee system, not specifically
targeting Saint Vincent citizens
- Reasonable person would not think he had predetermined case
§ Gallagher properly applied the RAOB test to himself and decided not
to recuse himself.
Ratio RAOB is a very high threshold. It will not be enough that a person has
expressed prior views through academic work on a subject matter to

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disqualify them. In fact, this experience may make them a better

d/maker.
VARIATIONS IN BIAS STANDARDS
The RAOB test is always the same, but the application varies depending on context.
Ø “Amenable to Persuasion”/Closed Mind Test: “Relaxation” of the RAOB test.

Appearances of bias aren’t triggered as quickly.
o Municipal councillors can advocate for a position as long as they remain
“amenable to persuasion” (OSB)
o Unelected polycentric d/maker can make public statements or advocate a
particular interest during the investigative stage and before a hearing date
has been set and then act as d/maker on that issue as long as he/she
remains “amenable to persuasion”. Once hearing date is set, d/maker is
subject to regular RAOB test (Nfld. Tel.)
o Standard is very high (i.e. hard to prove a closed mind)
o Rationale for municipal councillors/elected officials: they’re at the
legislative end of the PF spectrum – advance certain platforms for election
o Rationale for polycentric d/makers: similar, where appointed to represent
the interests of a particular community (Nfld. Tel.)
Ø NB: This relaxed test only applies to attitudinal bias/prejudgment cases.
o Only arises where prejudgment arises when d/maker is acting in
professional capacity for the public interest or other legitimate purpose
o Does not apply to pecuniary interests or personal relationships, even if
d/maker is elected or polycentric d/maker represents a certain community
o Rationale: Bias concern is that d/maker would be advancing their own
personal agenda, not acting in the public interest
o Further, elected officials = ultimate recourse is the electoral process
Variations in Standards (Bifurcated): Prejudgment of elected officials and unelected

polycentric ADMs
Spectrum of test ( à grows stronger à )

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Middle ground is closer to the left than the right. Bifurcated standard depending on
whether investigative or adjudicative stage. Even at the hearing stage, Court says it still
won’t be as strict of an RAOB test as they apply in the courts – still some flexibility here
as to what is “reasonable” (i.e. more flexibility in reasonableness for a polycentric ADM
than for a court)
OLD. ST. BONIFACE V WINNIPEG (1990, SCC)

Facts § Savoie was member of Winnipeg City Council
§ Involved from early stages in proposed land dvlmpt at OSB
§ Municipal approval needed for land purchases and rezoning bylaws
§ Savoie later appeared at the meetings in front of finance committee (of
which he wasn’t a member) to recommend the project – basically, he
took a position on whether the developer should be given the option to
purchase the city lands (he was in favour)
§ Option was granted, developer got land options.
§ Developer then sought rezoning – public hearings ensued before the
Community Committee, of which Savoie was a member
§ He participated w/out disclosing his earlier involvement
§ OSB Resident’s Ass’n (opposing the project) learned of his earlier
involvement & asked him to recuse from rezoning hearings b/c he was
already in favour – he refused.
§ City Council gave approval for rezoning – OSBRA sought JR
Issue Did Savoie’s earlier involvement in the land option purchase disqualify
him, based on RAOB?
Held No.
Reasons § DOF is a variable standard: content depends on circumstances of the
case, statutory provisions, and nature of matter to be decided
§ So, what circs does the committee operate under? Committee members
still act as municipal councillors in this capacity
- Often have already taken a stand (when they were getting elected),
part of a committee deciding preliminary matters, or help parties
either supporting or opposing a development
- Legislature would have contemplated some prejudgment by
municipal councillors – thus cannot have intended RAOB to apply
§ What is the nature/function of a municipal body?
- Distinguishes CJL v NEB – Crowe had assisted in the preparation
of the applications and contributed funds to the Study Group – thus
he had a personal interest. Plus, members of the NEB don’t have
political/legislative duties, so prejudgment of issues is not inherent
- Distinguishes a case of partiality by reason of pre-judgment
versus a case of partiality by reason of personal interest
- Municipal councillors have hybrid functions (political, legislative
and otherwise) – no reason to require them to refrain from dealing

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w/ matters where they have a personal or other interest

- Distinguishes conflict of interest (disqualified if interest is so
related to the exercise of public duty that a reasonable person
would conclude the interest might influence the exercise of duty)
§ Test for municipal councillors: They must be capable of being
persuaded. Some prejudgment is okay – but bias exists if party can
establish that prejudgment is such that any further representations
would be futile – i.e. a final opinion on the matter that can’t be changed
- Support in favour of a measure & vote in favour will NOT
constitute bias, unless something shows the position was incapable
of change
§ Application: Nothing showed that he had a relationship or personal
interest in the developer
- Not enough to establish bias that he’d argued in favour before
- Test for public officials: Would a reasonably well-informed
person consider that the interest might have an influence on the
exercise of the official’s public duty?
- No personal interest here. Purely a prejudgment case, and he hadn’t
indicated that his mind couldn’t be changed.
Ratio Canvasses nature and function of municipal bodies. Municipal
councillors are expected and allowed a degree of prejudgment. Bias
exists if they show they are incapable of persuasion.
SAVE RICHMOND FARMLAND V RICHMOND (1990, SCC)

Facts § Parallel case to OSB (also re: municipal councillor/land development)
§ First interview (pre-hearings): said he would listen attentively but
probably wouldn’t change mind
§ Second interview (during the hearings): it would take “something
significant” to change his mind
Issue Were these statements enough to disqualify him?
Majority § Not disqualified by bias - no evidence of a closed mind.
§ Upholds closed/open mind test – leaves room for intervention in
egregious cases
§ Also has a normative role in encouraging municipal councillors to
make sure they are still amenable to persuasion/listening w/ open mind
DISSENT § La Forest – this is a silly test that gives rise to silly disputes
§ He basically argues there shouldn’t be any allegations of bias here
§ Councillors can bring a closed mind, as long as it is the result of honest
opinions strongly held, not corruption
§ This is more realistic – closed/open mind = impossible to gauge
Ratio Another example of the relaxed closed mind RAOB test. La Forest, in
dissent, rejects the test & says it is okay for municipal councillors to
have a closed mind, given their legislative role.

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NFLD TELEPHONE V NFLD (1992, SCC)

Facts § Public Utilities Act creates Board to regulate Nfld Phone Company
(who have a quasi-monopoly)
§ Board appointed by Lieutenant-GIC; statute provides that board
members cannot be employed by, or have interest in, a public utility
§ Wells – appointed Commissioner to the Board
§ Previously a municipal councillor & advocate for consumers’ rights
§ Many colourful statements: publicly said he intended to play an
adversarial role on the Board as a champion of consumers’ rights
(statute was silent as to propriety of this)
§ Statements published in newspapers: “ludicrous/unconscionable”
benefits package, bring those fat cats in, “If I am biased its on the side
of consumers who pay too much for their phone bills”
§ Accounting firm provided analysis of Nfld Tel’s costs – Board received
report & decide to hold public hearing. Wells will be one of the
commissioners at the hearing.
§ Looking to determine whether certain expenses were unreasonable
(executive pension plan, v. high salary for executives)
§ If yes, these high expenses shouldn’t be part of rates paid by tax-payers
§ NT objects to Wells’ participation
§ Note: all Wells’ statements made before decision was released
§ Board makes a decision disallowing enhanced pension plans
(unreasonable) but makes n order on the salaries (Wells agrees)
§ Company challenges order
Issue Should Wells have been disqualified based on RAOB?
Held Yes.
Reasons § Emphasizes prevalence/importance of ADMs in our society. “In
Canada, boards are a way of life.”
§ Some boards need investigative, prosecutorial, & adjudicative fxns to
adequately regulate complex industries
§ Court emphasizes flexible approach to rule against bias. Why?
- There is merit to appointing ppl from different sides of the debate
(not everyone need be neutral)
- Boards can draw membership from wide spectrum (not just experts
or bureaucrats) – can include consumer advocates
§ Duty of boards:
- All ADMs owe DOF to parties they regulate
- Freedom from bias is essential to procedural fairness – but since
bias itself is hard to prove, the test measures apprehension of bias
- Standard in applying RAOB test varies (stricter w/ court-like,
adjudicative ADMs; lenient w/ legislative roles, elected municipal
councillors, etc)

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- Describes relaxed test for policy roles/municipal councillors

§ Application:
- Public utilities commissioners shouldn’t be held to standard of
judicial neutrality – we need people who have been involved in the
field, represent interested sectors of society, etc
- Expressing strong opinions prior to hearing is not enough for bias
- Procedure: Board generally supervises public utilities, including
Nfld Tel, which has a monopoly; may investigate of its own motion
any possibly unreasonable charges; investigation may lead to
hearing, during which the utility must be accorded fundamental
rights of PF (i.e. notice, attendance of witnesses & can make subs)
- Board determines unreasonableness of rates based on economic
terms, i.e. policy issues rather than legal questions – legislative
end of the spectrum (not adjudicative)
- Statute allows Board to act as an investigator re: charges, and then
to act as a prosecutor/adjudicator re: those same charges
- Wide licence given to ADMs during investigatory stage; these
statements were okay, as long as they didn’t show a “closed mind”
(demonstrates how high the threshold is here – his statements were
pretty crazy and strong, yet didn’t demonstrate closed mind)
§ Bifurcated standard: During investigative stage, court applies relaxed
“closed mind” test. Once matter reaches adjudicative/hearing stage,
stricter standard applies.
§ Wells made statements during hearing that seem to indicate he had
made up his mind – thus hearing was invalid and result is void..
Ratio Establishes bifurcated standard for RAOB. During investigative stage,
the relaxed “closed mind” test applies. Once matters proceed to
hearing (i.e. adjudicative stage), stricter RAOB test applies.
STATUTORY AUTHORIZATION DEFENCE
Ø Arises when the statute (i.e. regulatory system itself) provides a defence – i.e.
statute allows overlap of functions (person acting as both investigator and
adjudicator on the same case)
Ø Often arises in cases of prior involvement (i.e. person playing numerous roles in
regulatory structure) – more often cases where contact with the subject matter
occurred while he/she was a member of the d/making body (not before they were
appointed) – i.e. prior contact with subject matter from within the tribunal
Ø Legislature may oust the impartiality requirement either expressly or by necessary
implication (Cupe)
Ø Always subject to constitutional arguments (e.g. Charter, CBOR)

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BROSSEAU V ALBERTA SECURITIES COMMISSION (1989, SCC)

Facts § Chair of Alta Securities Commission instructs staff to investigate a
particular company
§ Chair received report, reviews it, decides hearing should be held, and
then will sit on the panel hearing the issue
§ Overlapping investigatory and adjudicatory functions
Issue Should Chair be disqualified from sitting on panel due to RAOB (since he
ordered the investigatory report, i.e. overlapping functions?)
Held No. SAD provides a complete defence here.
Reasons § Generally, overlapping investigatory and adjudicative fxns would lead
to RAOB
§ Exception: if overlap is authorized by statute (assuming the statute is
constitutional)
§ For bias to be found here, some act of the Chair beyond these statutory
duties would have to be found
§ Deference to legislatures to choose structures of ADMs – this may
include overlapping functions
§ Here, statute didn’t expressly authorized, but was implicit in the Act
(i.e. formal review expressly authorized, but Chair implicitly
authorized to conduct more informal internal review)
§ Nature of ADM: Specialized body – more likely to have repeated
dealings with a given party for different reasons
§ Cannot allege bias simply b/c Commission “didn’t act like a court”
§ Nature of statute: Securities Act à protective role, “special”
Ratio If the statute expressly or implicitly authorizes the behaviour, and the
d/maker is fulfilling his/her statutory duties, SAD offers a full defence
(as long as statute is constitutional). Authority can be either express or
implied.
CUPE V ONTARIO (2003, SCC)

Facts § Same case as covered in LED section – i.e. changing arbitration system
in Ontario hospital sector, Minister appointed retired judges to the
board who weren’t on the agreed-on list
§ Union upset – retired judges usually not in line with union interests
Issue Was there a duty of impartiality in appointing judges?
Held No. SAD offered full defence.
Reasons § Union args: Minister had significant outcome in result of arbitral
awards, as a member of a cost-cutting govt that wants to reduce public
spending, including health care and hospital labour costs
§ Ont. CA found that Minister had “significant and direct interest” in the
outcome of arbitral awards
§ SCC agrees, there is reason to think Minister might have interest in the

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outcome – however, SAD provides complete defence here

§ Absent a constitutional challenge, a statutory regime expressed in clear
and unequivocal language prevails over natural justice on this point
§ Provides more guidance than Brosseau – i.e. clear/unequivocal
language, either expressly or by necessary implication, v high standard
§ Union argued Minister could have delegated power to a 3P (more
removed, no chance of RAOB); but the language for delegation was
permissive, not mandatory. No requirement to delegate this power.
Ratio Statutory language can prevail over requirement of impartiality here,
but must be express or by necessary implication. If so, SAD offers a
complete defence to allegations of bias.
SUBSTANTIVE REVIEW IN ADMINISTRATIVE LAW
FEDERAL COURTS ACT (S. 18)
The Federal Court

Ø Creature of statute, created in the 1970s
Ø FC & FCA hear JR of federal administrative bodies – similar power as superior
courts, but no inherent jurisdiction – rather source of power is statutory (FCA)
Ø Basis for JR set out in ss. 18 and 18.1 of the FCA (not inherent jurisdiction)
Ø Main question post-Dunsmuir: do these principles apply to FCA? Decided, one
year after Dunsmuir, in Khosa.
FCA s. 18:
(1) Federal Court has exclusive original jurisdiction to issue admin law remedies (i.e.
prerogative writs, injunction, declaration) against federal ADMs;
(3) Remedies provided above may be obtained only on appl’n for JR under s. 18.1
FCA s. 18.1:
(1) Appl’n for JR may be made by AG of Canada or by “anyone directly affected”
(2) Time limit: within 30 days of decision being issued by federal ADM
(3) Powers of FC: FC may a) order ADM to do something or b) declare invalid, quash
or set aside or refer back a decision w/ new directions, or retrain/prohibit a decision
(4) Grounds of Review: FC may grant relief under subsection 3 if the ADM:
a) Acted without/beyond its jurisdiction, or refused to exercise jurisdiction;
b) Failed to observe a principle of natural justice or PF;
c) Erred in law (whether or not the error appears on the face of the record);
d) Based its decision on erroneous finding of fact, made in a perverse manner or
w/out regard to the material before it;
e) Acted, or failed to act, by reason of fraud or perjured evidence; or
f) Acted in any other way that was contrary to law.

74
(5) Defect/Technical Irregularity: If the sole ground for relief is a defect in form or
technical irregularity, FC may either refuse relief, or fix the defect.
FCA s. 18.5:
Exceptions to ss. 18 and 18.1: If an Act expressly provides for an appeal (to the FC,
FCA, SCC, etc.) then the decision of a federal ADM will not be reviewed or set aside, to
the extent that it may be so appealed.
à Debates in Khosa: a) role of privative clauses and b) how much the common law
applies to statutes.
CANADA (C&I) V KHOSA (2009, SCC)

Facts § Khosa, convicted for street racing; removal order to return him to
India
§ TJ finds his prospects for rehabilitation are good, but at some point
after his charge (which resulted in a CSO) he gets deportation order
§ Applied unsuccessfully to the Immigration Appeal Division (IAD) of
the Immigration & Refugee Board to remain in Canada
§ IAD said insufficient H&C grounds (per IRPA) – issued removal
order
§ FC: Upheld based on PU SOR
§ FCA: Overturned based on RS SOR
§ Dunsmuir (decided after these decisions) collapsed into a single
reasonableness standard
Issue How should the Dunsmuir approach apply to judicial review under ss. 18
and 18.1 of the FCA? (I.e., is the exercise by judges of statutory powers
of JR set out in the FCA governed by common law principles in
Dunsmuir?)
Held Dunmsuir applies to the FCA.
Binnie § Summary: Agrees that FCA legislated grounds, not standards.
(Majority) Dunsmuir says JR should be more focused on substance, rather than
picking an SOR – upholds applications judge – IAD was w/in range
of reasonable outcomes – FCA erred in quashing decision. Decision
of IAD restored.
§ Lower Courts:
o Disagreed on choice of SOR (PU v. RS) tho neither
considered that statute displaced the CL of judicial review
o FC: Considerable deference owed to the IAD (broad
discretion given to it, expertise, etc) – PU is appropriate SOR.
Upheld dec.
o FCA: Applicable SOR was RS. Dec wasn’t reasonable (e.g.
“rehabilitation” is a criminal law concept – ADM not expert)
§ Statutory Context:

75
o IRPA: PR/FN inadmissible on grounds of serious criminality –

but sets out possibility of appeal based on H&C factors
o FCA, s. 18.1: Sets out basis for JR at the Federal Court
§ Analysis:
o Parliament an legislate SORs (subject to constitutional limits)
o E.g. BC’s ATA – but must be interpreted in the context of the
CL (e.g. PU may be legislated as an SOR, but df’n exists at
CL)
o Rejects Rothstein’s args (that no deference owed, i.e. CSOR,
absent clear statutory direction via PC) à Dunsmuir says that,
with or without PC, ADMs may be deferred to – they often
become experts, are better suited to determine complex issues
o Dunsmuir rejects idea that ADMs should be reviewed as
appellate courts (i.e. CSOR). Refuses to “roll back the clock”
to era where courts thought they had expertise in all admin
stuff
o Flexibility: Parliament can’t have intended, in 18.1, to
legislate the same, rigid SOR to be applied to all federal
ADMs. Need contextual, elastic approach (many dif.
forms/functions of ADMs in many different circumstances)
§ Federal Courts Act:
o 1970s – Parliament created FCA & transferred jurisdiction
over federal ADMs from superior courts to federal court
o s. 18.1(4): Enables, but does not require, judicial intervention
o (a) through (f) specify grounds for review, but no standards
(tho some indicate more deference than others) – thus must be
interpreted against the CL backdrop, drawing on Dunsuir
o Grounds of review: The grounds an applicant must establish
to succeed on an application for JR
o Bases reasoning on principles of stat. interpretation – common
law is trumped only by clear language
o The legislature can always oust CL, but hasn’t done so; many
provinces have enacted JR legislation to provide guidance –
but these usually ID grounds for review, not the standards
o Thus legislature has the power to specify a SOR, but must
clearly do so. Otherwise, courts will a) not interpret grounds
of review a standards of review, b) will apply Dunsmuir
principles and c) will presume
§ PC v. Right of Appeal: A PC deters judicial intervention, but a
statutory right of appeal “may be at ease with it” – so, unclear about
the weight that a statutory appeal exerts against a privative clause
§ SOR Analysis:
o Courts must uphold ROL, but also not unduly interfere w
ADM
o Outlines Dunsmuir categorical approach – says reasonableness

76
applies here
o Factors for RSOR: existence of PC; IAD determines wide
range of appeals under IRPA (and JR only reviewable if FC
grants leave), broad discretion granted to IAD to determine
appeals based on facts and policy, IAD members have
expertise.
o Defines RSOR: single standard (but takes its colour from
context) which requires deference
o IAD gave clear reasons, outcome falls w/in reasonable range –
courts should not reweigh issue simply b/c they would have
come to a different conclusion. Court should defer.
§ Allow appeal. Restore decision of IAD.
Rothstein § Concurs with outcome but disagrees with approach to SOR analysis
(concurring) § FCA sets out SOR – courts cannot displace this w/ CL analysis
§ Reviewing courts must apply CSOR unless directed otherwise (i.e.
privative clause, or express/implied statutory direction)
§ Rationale: Parliament clearly indicated in s. 18.1(4) when deference
should apply – thus by implication a correctness standard will always
apply unless Parliament clearly indicates deference
§ Language of s. 18.1(4)(d) indicates deference to be applied to
questions of fact; thus CSOR applies to jurisdiction, natural justice,
law & fraud
§ Majority approach is inconsistent w/ legislative intent
§ Privative clause: SOR emerged as a way to reconcile the tension that
PC’s create between ROL and legislative supremacy. PCs are at the
centre of this tension – they are the most important thing. Thus
deference should be accorded only in light of a strong PC. Absence of
PC = legislative signal that there’s no need for deference.
§ Court started to go wrong in Pezim (deference even if PC) and
Pushpanathan (PC treated as simply one of many factors)
§ Court should NOT impute tribunal expertise on legal questions,
absent a PC
§ Criticisms: Has he reverted to an old, Diceyan approach, with no
deference to ADMs where “courts know best?”
Fish § Agrees the standard is reasonableness, but would allow the appeal
(dissent) § Khosa denied the street racing, but this doesn’t outweigh all the
evidence in his favour on issues of remorse, rehabilitation, and
likelihood of re-offence
§ Rothstein rejects this, says Fish is “reweighing the evidence”
Ratio Majority: Dunsmuir applies to Federal Court. FCA legislates grounds
for review, not standards of review. Rothstein: Absent clear leg.
intent (i.e. PC) JR should be treated like a regular appeal – i.e. CSOR

77
ADMINISTRATIVE TRIBUNALS ACT
ATA: KEY ASPECTS
Ø BC’s legislative attempt to simplify SOR; pre-dated Dunmsuir

Ø Generally enabling legislation (i.e. creates authority for tribunals)
Ø ATA only applies if tribunal’s enabling legislation so provides
o Rio Tinto: SCC made a big mistake – JR of BC Utilities Commission,
privative clause (so per s. 58, PU applies) but in the Utilities Commission
At, neither ss. 58 nor 59 applied to the Commission – embarrassing!
Ø If ATA doesn’t apply, look to the common law (i.e. Dunsmuir and post-Dunsmuir
jurisprudence)
Ø ATA can apply piecemeal, or not at all
Ø Upheld in Manz: No “Crevier” problem (i.e. does not violate s. 96).
o Differentiates “what” is done (courts ensuring ADMs staying within their
mandate) from “how” it is done (how courts should make this decision)
o The latter (i.e. the methodology – the SOR) can be legislated
o Held that Dunsmuir did not alter the meaning of the PU SOR
Ø Provisions re: appointments (ss. 2 – 10)
o Merit-based process for appointments of Chairs and members
o May be terminated for cause
Ø Provisions re: powers (ss. 11 – 61)
o See chart – extensive powers
o ss. 40(1) and (3): Deal with rules of evidence (usually don’t apply to
administrative hearings but may at higher end of PF spectrum)
o ss. 43 – 46: Whether tribunal has authority to hear constitutional matters
o s. 46: Whether tribunal can apply the Human Rights Code
o ss. 58 – 59: Deal with SOR that court must apply to tribunal’s decisions
Ø ss. 11 – 61: relate to tribunal powers (menu of powers)
Ø See Chart below mapping out ss. 58-59
Correctness Reasonableness Patent Other

Simpliciter Unreasonableness
PC All other matters A finding of fact or Fairness:
law or an exercise questions about
of discretion** the application of
common law rules
of natural justice
and procedural
fairness
No All questions except Finding of fact Discretionary Fairness:
PC those respecting the (?) decision** Questions about

78
exercise of discretion, the application of

findings of fact and the common law rules
application of the ** NB: PU defined of natural justice
common law rules of in the ATA, but and procedural
natural justice and only as it applies to fairness.
procedural fairness exercises of
(so, findings of law and discretion (doesn’t
other matters by apply to findings of
deduction) fact or law)
ATA (SBC, 2004)

s. 1 "applicant" includes an appellant, a claimant or a complainant;
"application" includes an appeal, a review or a complaint but excludes any interim or
preliminary matter or an application to the court;
"appointing authority" means the person or the Lieutenant Governor in Council who,
under another Act, has the power to appoint the chair, vice
chair and members, or any of them, to the tribunal;
"constitutional question" means any question that requires notice to be given under
section 8 of the Constitutional Question Act;
"court" means the Supreme Court;
"decision" includes a determination, an order or other decision;
"dispute resolution process" means a confidential and without prejudice process
established by the tribunal to facilitate the settlement of one
or more issues in dispute;
"intervener" means a person who is permitted by the tribunal to participate as an
intervener in an application;
"member" means a person appointed to the tribunal to which a provision of this Act
applies;
"privative clause" means provisions in the tribunal's enabling Act that give the tribunal
exclusive and final jurisdiction to inquire into, hear and
decide certain matters and questions and provide that a
decision of the tribunal in respect of the matters within its
jurisdiction is final and binding and not open to review in any
court;
"tribunal" means a tribunal to which some or all of the provisions of this Act are made
applicable under the tribunal's enabling Act;
"tribunal's enabling Act" means the Act under which the tribunal is established or
continued
s. 58 § Legislates SOR if tribunal has a privative clause (see text p. 339)
s. 59 § Legislates SOR if tribunal has no privative clause (see text p. 339)
EXAM § New binaries? Revival of jurisdiction? Shows legislative intent?
§ How successful (compared to P&F or Dunsmuir)?
§ Look carefully at exact language of ss. 58/59 (text, p. 339)
§ Always start with the definitional provision of any statute – this will
tell you whether the ATA even applies to the tribunal

79
LAVENDAR V FORD (2011, BCCA)

Facts § BC Human Rights Tribunal (Human Rights Code provides that s. 59 of
the ATA applies)
§ s. 59 specifies CSOR for all questions except exercise of discretion,
findings of fact, and appl’n of CL rules of natural justice and PF
§ No express mention of mixed law and fact. Must be determined – these
form a hefty portion of issues over which ppl seek JR
§ Tribunal: Argues for RSOR/deference, based on Khosa and Rio Tinto –
gap in the statute should be filled by CL (i.e. Dunsuir) which calls for
deference on these questions
Issue What SOR is applicable to a decision of the BCHRT on a QMLAWF?
Held Questions of mixed law and fact attract CSOR under the ATA.
Reasons § BC (unique) legislated SOR – thus statute and CL govern SOR issue
§ Common law remains relevant & informs the content of legislated
standards, but does not affect the choice of standard set out in the ATA
§ CL cannot override the “clear statutory direction” in the ATA
§ ss. 58/59 are a complete code and CSOR is the catch-all – i.e. “SOR
will be correctness for all issues except discretion, fact & PF”
§ Thus, since QMFAL is different than “finding of fact”, CSOR applies
§ Dialogue: BCCA says, the SCC made 3 errors in Rio Tinto
§ Summary on standard of review:
(1) Legislative provisions are paramount and must be examined first. A
tribunal’s enabling act specifies which provisions of the ATA apply.
(2) If ss. 58 or 59 of ATA apply, that section represents a complete
code of the possible standards of review.
(3) If ss. 58 or 59 apply, the next step is to identify the type of
question at issue.
(4) Once the type of Q has been identified, the reviewing judge must
apply the mandated SOR.
(5) If by the enabling statute neither ss. 58 nor 59 apply, the court must
use the CL jurisprudence, per Dunsmuir.
Ratio Establishes 5 step process for SOR matters under the ATA. Affirms
that ss. 58/59 are a complete code – no “gaps” to be filled by CL.
DEFINITION OF PU
Ø ss. 58(3) & 59(4) define PU:

o Discretionary decision is PU if a) exercised arbitrarily/in bad faith, b) for
an improper purpose, c) based entirely or predominantly on irrelevant
factors, or d) fails to take statutory requirements into account.
o Base on unlawful use of discretion per Agraira

80
Ø Limits: Only applies to discretionary decisions – however, other issues can be

subject to PU under the ATA – e.g. s. 58(2)(A) says findings of fact and findings
of law can be subject to PU SOR. And PU in this context is not defined in ATA
Ø Issue: What is the def’n of PU under s. 58(2)(A)?
Ø Khosa: Issue is particularly contentious b/c of SCC’s comment here that PU did
not “spring unassisted” from the mind of the legislator – definition/content of the
expression depends on general principles of administrative law
BC FERRIES & MARINE WORKERS’ UNION (2013, BCCA)

Facts § Arbitration award excluded many workers from bargaining unit
§ Dispute under Labour Relations Code
§ Union argued the award was so inconsistent with labour relations
principles that it was patently unreasonable
Issue How do we define PU in this context?
Held PU is a high threshold indicating deference. Here, decision was not PU.
Reasons § The term PU is no longer used in most jurisdictions post-Dunsmuir, but
is still relevant in BC due to ATA – SCC jurisprudence has not
“diluted” or “altered” the PU standard under the ATA
§ Defines PU based on earlier case law (e.g. Southam) – “openly, clearly,
evidently unreasonable” – definition frozen pre-Dunsmuir
§ Test must be applied to the result, not the reasons leading to result
§ “PU is at the high end of the deference spectrum and retains its pre-
Dunsmuir character”
PU is a very high standard.
Ratio PU remains relevant in BC – Dunsmuir has not altered/diluted this
standard. Resurrect pre-Dunsmuir case law to define the PU SOR.
QUESTIONS RAISED BY LAVENDAR APPROACH
Ø Post-Lavendar, questions still remain:

a) How to properly interpret the ATA provisions (ss. 58/59)
b) Normative questions as to whether these legislated SORs are actually the best
in all contexts
Ø Post-Lavendar, v. advantageous to characterize issue as QMFAL, b/c then CSOR
automatically applies. But JJ and Jestadt rein in that trend.
Ø Main questions:
o How far will correctness standard extend? à JJ
o How far will PU category in s. 58(2)(A) extend? à Jestadt

81
JJ V SCHOOL DISTRICT 43 (2013, BCCA)

Facts § Successful complainant before BC Human Rights Trib., seeks damages
§ HRT lessens damages she is owed due to doctrine of mitigation
§ Applicant seeks JR
§ BCSC characterized as QMFAL, thus CSOR applies, per Lavendar. No
deference to Tribunal – remits for them to reassess damages. Tribunal
appeals.
Issue What SOR applies?
Held CSOR to QMLAF, but RSOR to any “extricable” issues of fact.
Reasons § Purpose of s. 59 was to simply SOR, but that hasn’t really worked –
issues don’t always fall w/in neat categories established in s. 59(1)
§ Lavendar says, per ATA, CSOR applies to QMFAL – but this directly
contrasts with CL (Dunsmuir says deference is accorded to QMFAL)
§ Distinguishes Lavendar: there were no “extricable issues of fact”
§ Warning: courts not to be too quick to brand a question as mixed
law/fact and thus apply CSOR – court won’t have had benefit of
hearing witnesses, often no record, thus hard for reviewing court to
properly make findings of fact
§ So court narrows the category somewhat
§ Held: If there is an extricable issue of fact involved in the “mixed”
question, the court must defer in respect of that issue.
Ratio Reins in the appl’n of the CSOR. Must “parse out” questions of mixed
law and fact, and defer to any extricable questions of fact.
58(2)(A): Finding of fact or law or an exercise of discretion by the tribunal in respect of a

matter over which it has exclusive jurisdiction under a privative clause must not be
interfered with unless it is patently unreasonable.
Ø Most contentious/litigated provision in either s. 58 or s. 59

Ø Issue: What does it mean for something to be a “finding of fact in respect of a
matter over which the tribunal has jurisdiction under a privative clause?”
o Basically, how to determine jurisdiction?
o Courts have taken inconsistent approaches to this
o Carpenter: Apply P&F approach to determine jurisdiction
o Kerton: Courts should just focus on language of the privative clause (not
P&F approach – a few years after Carpenter). Simper, broader approach.
o This approach affirmed in Jestadt

82
JESTADT V PERFORMING ARTS LODGE (2013, BCCA)

Facts § Landlord/tenant dispute, governed by the RTA
§ Retired actress living at Performing Arts Lodge in Vancouver
§ Landlord terminates lease; she refuses to leave & disputes validity of
the termination clause
§ Dispute goes to Dispute Resolution Officer, appointed per RTA
§ He dismisses her complaint; she seeks JR of that decision
§ Argues she signed lease under duress & DRO didn’t account for this –
argued that duress is a CL matter, outside tribunal’s jurisdiction
Issue How to determine “a finding of fact in respect of a matter over which the
tribunal has jurisdiction under a privative clause”? To determine whether
tirbunal’s findings are to be reviewed on CSOR or RSOR, must answer
this question (i.e. is matter w/in exclusive jurisdiction under a PC?)
Held Yes – w/in jurisdiction. Thus, RSOR applies.
Reasons § RTA has a privative clause. Enabling statute says s. 58 ATA applies
§ Main issue here was whether the matter was something over which the
director had exclusive jurisdiction under the privative clause
§ Court notes that not all questions of law will be brought under 58(2)(A)
§ Court cites Kerton & seems to use this approach – i.e. focusing on
language of PC (tho they say P&F approach would lead to same result)
§ Held that duress is at the core of the director’s jurisdiction over
landlord/tenant disputes – wording of PC is broad enough to cover this
§ Purpose of RTA – regulate residential tenancies & resolve disputes.
§ Language of Act – jurisdiction is not limited to the interpretation and
application of provisions in the Act itself. Can also include common
law (i.e. duress) as part of the duties. There might be some areas of law
that do not come w/in the director’s exclusive jurisdiction, but in this
case the common law of contract is at the core of the director’s dispute
resolution function
§ Is this fair? Depends on whether you’re considering it from the POV
of the individual claimant, or the POV of administrative efficiency.
Ratio To determine whether a matter is within the tribunal’s “exclusive
jurisdiction under a PC”, simply look to words of privative clause to
determine whether it covers the matter at issue.
SOR FOR CONSTITUTIONAL DETERMINATIONS
Ø SOR is correctness if a tribunal is determining the constitutionality of a provision

within their home statute (Dunsmuir)

83
Ø Tribunals have the jurisdiction to apply the Charter, as long as they have the
jurisdiction to determine questions of law
Ø What is the SOR if an ADM is applying a provision, and the allegation is not that
the particular piece of legislation is unconstitutional, but that the WAY it is being
applied infringes Charter rights?
Ø Dore definitively favoured administrative/JR approach over full Oakes analysis,
but Loyola reintroduced confusion
Dore Framework (from TWU exercise):

§ Look at the regulatory context
§ ID specifically which decision is at issue
§ Look at stat. objectives - usually lots of room for arg. here – narrow v. broad view
o NB: Live issue in Dore – is it the statutory provision construed
broadly, or the specific rules at play? Dore didn’t address this. Argue
over how broadly to construe the statutory objectives. Oakes clearly said
the particular provision, not the overall statute, but Dore was silent on this
o NB: Will reasonableness always be the standard if we are determining
Charter issues? Back to Dunsmuir categories.
§ Does decision proportionately balance stat. objectives w/ Charter right?
DORE V BARREAU DU QUEBEC (2012, SCC)

Facts § Judge made disparaging comments towards Dore (lawyer) – “insolent”
§ Dore wrote a private letter to judge – v. strong language (coward,
unjust – said he was writing form a personal POV, man to man)
§ Barreau du Quebec – violated Article 2.03 of the Code of Ethics (that
an advocate “bear the stamp of objectivity, moderation & dignity”)
§ In the interim, panel of judges investigated Judge Boilard’s comments,
found them “unnecessarily insulting”, merits expression of disapproval
§ Disciplinary Council rejected Dore’s args that letter was private –
disciplined, 21 day suspension.
§ Rejected Dore’s argument that 2.03 violated 2(b) Charter – Dore had
joined a profession where he knew his freedom of expression would be
limited – this is in exchange for privileges conferred on lawyers
§ Dore switched tactics – rather than saying the legislation itself was
unconstitutional, argued that the manner in which it was applied by the
Disciplinary Council was unconstitutional
§ Appealed Council’s decision to Tribunal, then Superior Court of
Quebec, then QCA, then SCC.
Issue What SOR applies when reviewing administrative decisions for
compliance w/ Charter values?
Held Oakes not workable in this context. Admin law approach prevails.
Reasons § Central issue:
§ Unclear jurisprudence – some applied Oakes, others admin approaches

84
o Slaight – court applied Oakes analysis

o Baker/CUPE – move away from this. Charter values infuse
admin law – ADMS empowered to adjudicate these values
o Dunsmuir – JR should be guided by deference
o Conway – ADMs have authority to apply Charter
§ Two SOR Options:
o Full Oakes test – formalistic (Slaight)
o Admin law/JR analysis to assess whether ADM took sufficient
account of Charter values – Baker, TWU, etc.
§ Concerns w/ Oakes: If we go strait to Oakes, we lose rich source of
thought & experience in admin law
o E.g. could simply bypass Dunsmuir by arguing Charter breach,
go strait to CSOR, subvert a lot of earlier work done by Court
o Protects Charter rights, but undermines robust conception of
admin law
o Would allow courts to start “retrying” admin decisions that
otherwise would be subject to RSOR
o “Awkward fit” in admin context – who has the onus?
o Clearly designed to test legislation – less suited to a
discretionary decision in an admin context (esp. dealing w/
individual rights)
§ Admin/JR Approach:
o Deeper conception of admin law – recognizes ADMs are
empowered to consider Charter values
o Oakes analysis unnecessary, since ADMs are always required
to protect Charter values
o Admin decisions apply to an INDIVIDUAL, thus are fact-
specific & attract deference (unlike constitutionality of a law,
which doesn’t necessarily relate to a particular set of facts)
o Consistent w/ nature of discretionary d/making
§ CSOR/RSOR: CSOR clearly applies when tribunal is interpreting the
constitutionality of a law. But RSOR will apply when assessing
whether ADM sufficiently took account of Charter values in
discretionary decision.
o Deference is not diminished simply b/c decision has Charter
dimension – ADM likely have expertise in applying Charter to
a specific set of facts
o ADMs balancing many considerations including Charter values
o Thus ADMs have necessary specialized expertise &
discretionary power in the area where Charter values apply
§ Test: In assessing the impact of the relevant Charter protection &
given nature of decision and statutory and factual context, does the
decision reflect a proportionate balancing of Charter protections?
o Balances statutory objectives with Charter values
o Asks how Charter value can best be protected, proportionately

85
based on statutory objectives

o Thus incorporates main features of Oakes test: balance and
proportionality – basically a pared down Oakes test
§ Application:
o Must balance importance of open criticism of public institutions
w/ need to ensure civility in the profession
o Fact-dependent and discretionary exercise
o Dore went too far - disciplinary decision was not unreasonable
Criticisms § Some say, Oakes allows a range of minimally impairing alternatives,
and the same thing is happening here – so it’s okay
§ Others say, Dore risks watering down protection of Charter rights!
§ No need to show that the objective is pressing/substantial (tho, counter-
arg is that this is rarely an issue in the Oakes test – courts defer to leg)
§ Dore looks fuzzy, unclear, wishy-washy – whereas Oakes test is very
clear, laid out step-by-step, with attendant requirements/rationales
§ Positive reception overall
Ratio Court favours JR approach over Oakes test when assessing whether
ADM sufficiently took Charter values into consideration. The RSOR in
this case will centre on proportionality – i.e. did the decision interfere
w/ the Charter value no more than necessary, given the stat. objectives
LOYOLA V QUEBEC (2015, SCC)

Facts § QC Minister of Education denies Catholic high school an exemption
from province’s mandatory Ethics and Religion Curriculum (ERC)
§ ERC had become mandatory, replacing religious instruction
§ Minister had discretionary power to exempt this requirement, if there
was a program that the Minister deemed to be equivalent
§ Loyola (Jesuit institution) applies for exemption, was denied
Reasons § 4 judges applied the Dore framework
§ 3 judges applied watered down Oakes test: govt bears burden of
showing that the denial of exemption limited Loyola’s frights no more
than necessary.
Ratio Casts doubt on the idea that, in Dore, the court clearly chose the JR
approach to constitutional questions. Panel of 7, and 3 chose Oakes –
casts doubt on future of the Dore framework.

86

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Sarah Chaster Law 301 – Admin Outline – Fall 2015

INTRODUCTION TO ADMINISTRATIVE LAW ................................................................................ 5

LEGITIMATE EXPECTATIONS DOCTRINE ............................................................................................................. 36

Variations in Bias Standards .......................................................................................................................... 68

SUBSTANTIVE REVIEW IN ADMINISTRATIVE LAW ................................................................. 74

INTRODUCTION TO ADMINISTRATIVE LAW

BASIC PRINCIPLES OF ADMINISTRATIVE LAW

WHAT IS ADMINISTRATIVE LAW?

• Public Law: Relationship between people & govt

WHAT ARE THE PURPOSES OF ADMINISTRATIVE LAW?

• Red light theorists: To control & constrain government power

ADMINISTRATIVE LAW VERSUS CONSTITUTIONAL LAW

• Admin law: Focus on exercise of authority by public bodies/govt under a statute

• Growing intersections: Admin law explores constitutional law principles – rule

Admin Law: Pros Admin Law: Cons

Welfare state – increasing need to delegate Inconsistent with notions of responsible

Expertise – specialized knowledge Inappropriately supplants the role of the

Broader public participation Decisions of questionable legitimacy can

Less susceptible to political pressure

THEORIES IN ADMINISTRATIVE LAW

• Legal Formalism: Law as ‘scientific’ rules; decisions made by looking at past

CHALLENGING ADMINISTRATIVE ACTION

Internal appeal mechanisms Private law remedies

Political process (complain to your MP!) Statutory appeals

Branches of Admin Law

• Procedural: The manner in which authority was exercised

REMEDIES IN ADMIN LAW

Sources of Review Power

Admin law remedies are:

The prerogative writs:

• Traditional channels for remedies in admin law

- Usually cannot be compelled to exercise a certain form of discretion

• The writs were technical, restrictive, difficult

o Relief remains discretionary

Summary: administrative law moved from a complicated, common-law regime

o Superior courts have inherent jurisdiction (which includes policing the

§ Historical Inquiry: Does the power or jurisdiction conform to the power or

o I.e. the “institutional setting” argument can allow a tribunal to

RE RESIDENTIAL TENANCIES ACT (1981, SCC)

Analysis: Intended effect of s. 96 would be destroyed if province could pass legislation

CREVIER V QUEBEC (1981, SCC)

Issue: Is the privative clause constitutionally valid?

Ø Insulating an admin agency from review of its jurisdiction essentially makes it a s.

Ratio: A provincial legislature cannot create an administrative tribunal and then

THE RULE OF LAW

BASIC PRINCIPLES OF THE RULE OF LAW

ROL is a basic, foundational, constitutional meta-principle, with both written and

1. A jurisprudential principle of legality

à ROL explores the legitimate scope and content of judicial power

As a meta-principle, ROL includes many related principles, including: legality,

- It constrains the action of public officials

“Laws, not men, should rule in a well-ordered political community.” – Aristotle

• ROL = supremacy of law over unconstrained political power

COMPETING THEORIES OF THE RULE OF LAW

1. Diceyan (Formalist, Traditional Approach in Admin. Law)

2. Substantive Rule of Law – “Thick” (Roncarelli)

• Departs from formalistic, Diceyan theory by injecting more values into an

• ROL as a particular vision of what “justice” requires in substance, i.e. rule of

à Formal versus Substantive (Summary): Formalist account = administrative law

3. New Minimalist Rule of Law – “Thin” (Imperial Tobacco)

compared to each other, so keep policy for the legislatures and

CRITIQUES OF THE RULE OF LAW

1. Functionalist (i.e. “Traditional”) Critique of the Diceyan Model

• Bora Laskin/John Willis – supported the rise of the regulatory state