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Administrative Law Outline – 2003 1. PROCEDURAL FAIRNESS.....................................................................................................................................4 1.1. DEVELOPMENT OF PROCEDURAL FAIRNESS...................................................................................................................4 Cooper v. Board of Works for Wandsworth District (1863), 143 ER 414 (Eng. CP)....................................................4 Nicholson v. Haldimand-Norfolk (Regional) Police Commissioners [ 1979] 1 SCR 311.............................................5 Knight v. Indian Head School Division No. 19 [1990] 1 SCR 653...............................................................................5 1.2. DECISIONS OF A LEGISLATIVE AND A GENERAL NATURE................................................................................................6 1.2.1. Cabinet and Cabinet Appeals......................................................................................................................6 Canada (AG) v. Inuit Tapirisat of Canada [1980] SCR 735.........................................................................................6 1.2.2. By-laws and Rule-making............................................................................................................................7 Homex Realty and Development Co. Ltd. v. Wyoming (Village) [1980] 2 SCR 1011.................................................7 1.2.3. Policy Making..............................................................................................................................................7 Bezaire v. Windsor RCSSB (1992), 9 OR (3d) 737 (Div. Ct.).....................................................................................8 Canadian Association of Regulated Importers v. Canada (AG) [1994] 3 FC 247 (CA)................................................8 1.2.4. Decisions Affecting Rights, Privileges, or Interests.....................................................................................8 Re Webb and Ontario Housing Corp. (1978), 93 DLR (3d) 187 (OCA).......................................................................8 Hutfield v. Board of Fort Saskatchewan General Hospital District No. 98 (1986), 24 Admin. LR 250 (Alta. QB)......9 Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817.........................................................10 1.2.5. Non-final (Investigative) Decisions...........................................................................................................11 Re Abel and Advisory Review Board (1979), 97 DLR (3d) 304 (Ont. Div. Ct.); affíd (1981), 119 DLR (3d) 101 (OCA)........................................................................................................................................................................11 Dairy Producersí Co-operative Ltd. v. Saskatchewan (HRC) [1994] 4 WWR 90 (Sask. QB)....................................11 Irvine v. Canada (Restrictive Trade Practices Commission) [1987] 1 SCR 181.........................................................12 Summary of Non-Final Decisions..............................................................................................................................13 1.3. PROCEDURAL FAIRNESS ARISING FROM LEGITIMATE EXPECTATIONS..............................................................................13 Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 SCR 1170.........................................................13 Reference re Canada Assistance Plan [1991] 2 SCR 525...........................................................................................13 Furey v. Roman Catholic School Board for Conception Bay Centre (1991), 2 Admin. LR (2d) 263 (Nfld. SCTD); rev’d at Nfld. CA........................................................................................................................................................14 Mount Sinai Hospital v. Quebec (Minister of Health and Social Services) [2001] 2 SCR 281...................................14 1.4. PROCEDURAL FAIRNESS AND THE CANADIAN BILL OF RIGHTS.......................................................................................15 NAPO v. Canada (AG) (1990), 60 DLR (4th) 712 (FCA)..........................................................................................15 Authorson v. Canada (AG) 2003 SCC 39...................................................................................................................15 1.5. PROCEDURAL FAIRNESS AND THE CHARTER................................................................................................................16 Paul v. BC (Forest Appeals Commission) 2003 SCC 55............................................................................................16 NS (Workerís Comp. Bd.) v. Martin 2003 SCC 54....................................................................................................16 Singh v. Canada (Minister of Employment and Immigration), [1985] 1 SCR 177.....................................................16 Wilson v. BC (Medical Services Commission) (1988), 53 DLR (4th) 171 (BCCA)...................................................17 Blencoe v. BC (HRC), [2000] 2 SCR 307..................................................................................................................18 2. CHOICE OF PROCEDURES................................................................................................................................20 Goldberg v. Kelly 397 US 254 (1970) (USSC)..........................................................................................................20 Mathews v. Eldridge 424 US 319 (1976) (USSC)......................................................................................................20 Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3..........................................................21 Statutory Powers Procedures Act (Ont.).....................................................................................................................22 3. SPECIFIC CONTENT ISSUES.............................................................................................................................22 3.1. PRE-HEARING ISSUES..............................................................................................................................................22 3.1.1. Notice.........................................................................................................................................................22 Re Hardy and Minister of Education (1985), 22 DLR (4th) 394 (BCSC)...................................................................23 Re Central Ontario Coalition and Ontario Hydro (1984), 10 DLR (4th) 341 (Ont. Div. Ct.)......................................23 R. v. Ontario Racing Commission, ex parte Taylor (1970), 15 DLR (3d) 430 (Ont. CA)...........................................23 Canada (AG) v. Canada (Commission of Inquiry on the Blood System in Canada ñ Krever Commission) [1997] 3 SCR 440.....................................................................................................................................................................23 3.1.2. Discovery...................................................................................................................................................24 Canadian Pacific Airlines Ltd. v. Canadian Air Line Pilots Association, [1993] 3 SCR 724......................................24 3.1.2.1. Documents in Possession of 3rd Party................................................................................................................24 1 Ontario (HRC) v. Ontario (Board of Inquiry into Northwestern General Hospital) (1993), 115 DLR (4th) 279 (Ont. Div. Ct.).....................................................................................................................................................................24 3.1.2.2. Documents in Possession of Decision-Maker (Tribunal)....................................................................................25 CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review Board), [1994] 3 FC 425 (CA)...............................25 3.1.3. Delay..........................................................................................................................................................25 Kodellas v. Saskatchewan (HRC) (1989), 60 DLR (4th) 143 (Sask. CA)...................................................................26 3.2. ORAL HEARINGS....................................................................................................................................................26 Masters v. Ontario (1994), 18 OR (3d) 551 (Div. Ct.)................................................................................................26 Khan v. University of Ottawa (1997), 35 OR (3d) 535 (CA)......................................................................................27 3.3. DISCLOSURE AND OFFICIAL NOTICE..........................................................................................................................28 3.3.1. Access to Agency Information....................................................................................................................28 Re Napoli and Workersí Compensation Board (1981), 126 DLR (3d) 179 (BCCA)..................................................28 3.3.2. Identity of Sources of Information.............................................................................................................28 Gallant v. Canada (Deputy Commissioner, Correctional Service Canada) (1989), 36 Admin. LR 261 (FCA)...........28 Gough v. Canada (National Parole Board) (1990), 45 Admin. LR 304 (FC TD)........................................................29 3.3.3. Commercially Sensitive Information..........................................................................................................30 Magnasonic Canada v. Anti-Dumping Tribunal, [1972] FC 1239 (CA).....................................................................30 3.3.4. Staff Studies................................................................................................................................................30 CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review Board), [1994] 3 FC 425 (CA)...............................30 Toshiba Corporation v. Anti-Dumping Tribunal (1984), 8 Admin. LR 173 (FCA)....................................................30 Trans-Quebec & Maritimes Pipeline Inc. v. National Energy Board (1984), 8 Admin. LR 177 (FCA)......................30 Re League for Human Rights of BíNai Brith and Commission of Inquiry on War Criminals (1986), 28 DLR (4th) 264 (FCA)..................................................................................................................................................................31 3.3.5. Official Notice............................................................................................................................................31 SPPA (s. 16)...............................................................................................................................................................31 Township of Innisfil v. Township of Vespra..............................................................................................................31 4. INSTITUTIONAL DECISIONS............................................................................................................................31 4.1. DECIDING WITHOUT HEARING..................................................................................................................................31 International Woodworkers of America, Local 2-69 v. Consolidated-Bathurst Packaging Ltd., [1990] 1 SCR 282...31 Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 SCR 952.............................................................33 Commentary by Mullan on Consolidated-Bathurst and Tremblay..............................................................................34 Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 SCR 221....................................................................34 Payne v. Ontario (HRC) (2000), 192 DLR (4th) 315 (Ont. CA).................................................................................35 5. BIAS AND LACK OF INDEPENDENCE............................................................................................................36 5.1. REASONABLE APPREHENSION OF BIAS.......................................................................................................................36 Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817.........................................................36 5.1.1 Pecuniary Bias............................................................................................................................................36 Energy Probe v. Canada (Atomic Energy Control Board) (1984), 15 DLR (4th) 48 FCA..........................................36 5.1.2. ACTING OUTSIDE STATUTORY AUTHORITY......................................................................................37 5.1.2. Acting Outside Statutory Authority...........................................................................................................37 Brosseau v. Alberta (Securities Commission), [1989] 1 SCR 301..............................................................................37 E.A. Manning Ltd. v. Ontario Securities Commission (1995), 125 DLR (4th) 305 (Ont. CA)...................................38 5.1.3. Institutional Bias Due to Internal Operational Choices ñ Court Intervention on C/L basis.....................38 2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool), [1996] 3 SCR 919...................................................38 5.1.4. Institutional Bias Due to Statute ñ Court Intervention on a Constitutional Basis.....................................39 MacBain v. Canada (Human Rights Commission) (1985), 22 DLR (4th) 119 (FCA)................................................39 5.1.5. Attitudinal Bias..........................................................................................................................................40 Paine v. University of Toronto, (1981), 131 DLR (3d) 325 (Ont. CA); rev’g. (1980), 115 DLR (3d) 461 (Ont. Div. Ct.).............................................................................................................................................................................40 Great Atlantic & Pacific Co. of Canada v. Ontario (HRC) (1993), 12 Admin LR (2d) 267 (Ont. Div. Ct.)................40 Large v. Stratford (City) (1992), 9 OR (3d) 104 (Div. Ct.).........................................................................................41 5.1.6. Variations in Standards.............................................................................................................................41 Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 SCR 1170.........................................................41 Save Richmond Farmland Society v. Richmond (Township), [1990] 3 SCR 1213.....................................................42 Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 SCR 623..43 5.2. LACK OF INDEPENDENCE/IMPARTIALITY.....................................................................................................................44 2 Sethi v. Canada (Minister of Employment and Immigration), [1988] 2 FC 552 (CA)................................................44 Alex Couture Inc. v. Canada (AG) (1991), 83 DLR (4th) 577 (Que. CA)..................................................................44 Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 SCR 3.................................................................................45 2747-3174 Quebec Inc. v. Quebec (Regi des permis díalcool), [1996] 3 SCR 919.....................................................46 6. STANDARD OF REVIEW.....................................................................................................................................47 Crevier v. Quebec (AG), [1981] 2 SCR 220...............................................................................................................47 CUPE, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 SCR 227...........................................................47 Union des employes de service, Local 298 v. Bibeault, [1988] 2 SCR 1048..............................................................48 6.1. DEVIATIONS FROM THE STANDARD OF REVIEW............................................................................................................49 Canada (AG) v. Mossop, [1993] 1 SCR 554..............................................................................................................49 United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 SCR 316.............................................................................................................................................................................50 6.2. EXTENDING DEFERENCE Ñ STATUTORY APPEALS.........................................................................................................51 Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 SCR 557..............................................................51 Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 SCR 748...............................................51 Law Society of New Brunswick v. Ryan, 2003 SCC 20.............................................................................................52 6.3. REINFORCING AND REARTICULATING THE MODERN STANDARD OF REVIEW.....................................................................53 CUPE, Local 301 v. Montreal (City), [1997] 1 SCR 793...........................................................................................53 Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982...........................................54 6.4. FOCUSING ON THE NATURE OF THE PROBLEM.............................................................................................................55 Trinity Western University v. BC College of Teachers, [2001] 1 SCR 772................................................................55 Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., [2001] 2 SCR 100.......................................56 7. REVIEW OF DISCRETION..................................................................................................................................57 7.1. APPLYING THE FUNCTIONAL AND PRAGMATIC APPROACH.............................................................................................57 Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817.........................................................57 Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3..........................................................58 7.2. WRONGFUL CONSIDERATIONS...................................................................................................................................58 CUPE v. Ontario (Ministry of Labour) 2003 SCC 29.................................................................................................58 Re Sheehan and Criminal Injuries Compensation Board, (1975), 52 DLR (3d) 728 (Ont. CA)..................................59 7.3. WRONGFUL PURPOSE..............................................................................................................................................60 Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 SCR 231.........................................................................60 7.4. CONSTITUTIONAL CONSIDERATIONS...........................................................................................................................61 Slaight Communications Inc. v. Davidson, [1989] 1 SCR 1038.................................................................................61 7.5. UNWRITTEN CONSTITUTIONAL CONSIDERATIONS..........................................................................................................62 Lalonde v. Ontario (Commission de restructuration des services de sante) (2001), 56 OR (3d) 505 (CA).................62 1. PROCEDURAL QUESTIONS...............................................................................................................................66 1.1. PROCEDURAL FAIRNESS...........................................................................................................................................66 1.1.1. C/L Dimensions..........................................................................................................................................66 1.1.1.1. Decisions That Garner No/Limited Procedural Fairness Rights..........................................................................67 1.1.1.2. Decisions That Garner Procedural Fairness Rights.............................................................................................67 1.1.2. Statutory Dimensions.................................................................................................................................68 1.1.2.1. Statutory Powers Procedures Act (Ontario)........................................................................................................68 1.1.3. Constitutional Dimensions.........................................................................................................................69 1.1.3.1. Canadian Bill of Rights.......................................................................................................................................69 1.1.3.2. Canadian Charter of Rights and Freedoms..........................................................................................................69 1.2. DUTY OF FAIRNESS Ñ SPECIFIC CONTENT ISSUES........................................................................................................70 1.2.1. Pre-Hearing Issues....................................................................................................................................70 1.2.1.1. Notice.................................................................................................................................................................70 1.2.1.2. Discovery............................................................................................................................................................70 1.2.1.3. Delay..................................................................................................................................................................71 1.2.2. Oral Hearings............................................................................................................................................71 1.2.3. Disclosure..................................................................................................................................................71 1.2.3.1. Agency Information............................................................................................................................................71 1.2.3.2. Source of Information.........................................................................................................................................72 1.2.3.3. Commercially Sensitive Information..................................................................................................................72 1.2.3.4. Staff Studies........................................................................................................................................................72 3 1.2.4. Official Notice............................................................................................................................................72 1.2.5. Deciding Without Hearing.........................................................................................................................73 1.2.5.1. Full Board Meetings...........................................................................................................................................73 1.2.5.2. Ability to Examine Board Members...................................................................................................................73 1.3. BIAS AND LACK OF INDEPENDENCE...........................................................................................................................73 1.3.1. Reasonable Apprehension of Bias..............................................................................................................73 1.3.1.1. Presence of Bias..................................................................................................................................................74 1.3.2. Institutional Impartiality............................................................................................................................75 1.3.3. Institutional Independence.........................................................................................................................75 2. SUBSTANTIVE QUESTIONS...............................................................................................................................76 2.1. STANDARD OF REVIEW............................................................................................................................................76 2.1.1. Pre-Pushpanathan.....................................................................................................................................76 2.1.2. Deviations from the Standard....................................................................................................................76 2.1.3. Extending Deference..................................................................................................................................77 2.1.4. Pragmatic and Functional Approach ñ Pushpanathan.............................................................................77 2.2. REVIEW OF DISCRETION...........................................................................................................................................78 2.2.1 The P&F Approach (Case Studies).............................................................................................................78 2.3. CONSTITUTIONAL DIMENSIONS..................................................................................................................................80 2.4. UNWRITTEN CONSTITUTIONAL PRINCIPLE OF PROTECTION OF MINORITIES.......................................................................80 1. Procedural Fairness 1.1. Development of Procedural Fairness Cooper v. Board of Works for Wandsworth District (1863), 143 ER 414 (Eng. CP) (at 104) f.: Metropolis Local Management Act 1855, s. 76 required anyone intending to build a house to give 7 days notice prior to construction (to allow for ∆ to give advice on drains). ∏ said he gave notice and 5 days later began construction. ∆, who said they received no notice, tore down building without notice to Π (as they were empowered to do so by the Act if no notice was received). ∏ sued for damages and trespass. i.: Was ∏ entitled to a notice and the right to be heard before the board tore down the house? 4 r.: “No man is to be deprived of his property without his having an opportunity to be heard,” regardless of whether there is a judicial proceeding or not. a.: For ∏. The right to be heard is justified when (1) statutorily empowered party’s actions have serious consequences (like destruction of property); (2) hearings allow for better decisions; (3) benefits of a hearing outweigh the costs. Nicholson v. Haldimand-Norfolk (Regional) Police Commissioners [ 1979] 1 SCR 311 (at 107) f.: s. 27(b) of the Regulations made under the Police Act allow “a board or council,…to dispense with the service of any constable within eighteen months of his becoming a constable.” ∏ was constable for 15 months and was discharged by the board without being heard (making submissions). COA said that since statute allowed hearing for full constables, but was silent on a hearing for probationary constables, this means that legislature intended to exclude a hearing option for probationary constables. ∏ seeks review. i.: Was the ∏ entitled to be heard by the board, notwithstanding s. 27(b) of the Regulations made under the Police Act? r.: Laskin CJC: Police constables on probation are more like officers requiring cause for dismissal (but not totally), therefore are entitled to lesser protection under Police Act. Complainants should be given reasons for dismissal and a chance to respond (can be oral or written). No need to distinguish between judicial, quasi-judicial, and administrative functions. a.: 5-4 for ∏. Martland J. (dissent): ∏ status was a constable under probation (office holder at pleasure, traditional C/L says no hearing needed). ∆ not under any legal obligation to give reasons to ∏ for termination before 18 months service was complete. Knight v. Indian Head School Division No. 19 [1990] 1 SCR 653 (at 116) f.: ∏ (director of education) was dismissed by ∆ after refusing to accept K renewal for a shorter term than original. ∏ brought action for wrongful dismissal (seeking damages) – refused. ∏ argued he was entitled to procedural fairness before dismissal. Upheld in lower courts. ∆ appealed. i.: How do you distinguish between statutory employees and office holders at pleasure? Is procedural fairness due an office-holder at pleasure? r.: When an employee is an office holder and the employer (administrative body) is empowered by statute to make a final decision that has a large impact on the employee (e.g. dismissal), the employer has a duty of fairness in making that decision. This includes the provision of reasons for the decision and the right of the employee to be heard. a.: 4-3 for ∏. Majority – procedural fairness is due an office-holder at pleasure but such requirements were met by ∆. Dissent – no duty of fairness is due an office-holder at pleasure. ∆ appeal allowed. L’Heureux-Dube J.: consider three factors to determine if a duty of fairness exists. 5 (1) nature of decision made by administrative body – do not distinguish between judicial, quasi- judicial and admin decisions, since duty to act fairly and judiciously rest on same principle of natural justice. Not all admin bodies are under such a duty (e.g. decisions of legislative and general nature). Preliminary decision will not generally trigger duty of fairness, but final decision may (2) relationship between that body and the individual. Master and servant – no duty to act fairly; office held at pleasure – no duty to act fairly; office requiring cause for dismissal – duty to act fairly (3) effect of decision on individual’s rights. Right to fairness only if decision is significant and has important impact on individual. The ability to retain one’s employment is significant. NOTE: must check relevant Act or employment K to see if duty of fairness expressly excluded. Sopinka J. (dissent): Generally, the holder of an office at pleasure is not entitled to a duty of fairness in relation to dismissal. An exception can be made if the officer can identify in statute, regulations or K, provisions which (explicitly or implicitly) confer a right to be heard. L’Heureux-Dube turns exception into rule, by determining if a duty exists first (nature of decision, relationship, effect of decision) and then turning to statute, regulations, K to see if employer has brought himself into exception to duty of fairness A f t Ne ir c h o ls o n , K n ig h t J u d ic ia l P ro c e d u ra l F a ir n e s s P ro t e c t io n Q u a s i- J u d ic ia l A d m in is t r a t iv e L e g is la t i v e / G e n e N r ao l Pd r eo ct e i sc i ot i on sn M in is t e r ia l/ B r o a d P o lic y d e c is io n s 1.2. Decisions of a Legislative and a General Nature 1.2.1. Cabinet and Cabinet Appeals Canada (AG) v. Inuit Tapirisat of Canada [1980] SCR 735 (at 132) f.: CRTC has power to regulate rates of utilities, including Bell. s. 64(1) of the National Transportation Act empowers GIC (Cabinet), upon petition or its own motion, to rescind any order, decision, rule or regulation of the CRTC. s. 64(2) allows for an appeal from the CRTC to the FCA on a question of law or jurisdiction once given leave by the Court and “upon notice to the parties and the Commission, and upon hearing such of them as appear and desire to be heard.” Bell made application for rate increase. ∆ intervened, asked CRTC to force Bell to improve service in North as a condition of rate increase. CRTC denied. ∆ appealed to Cabinet and make submission. CRTC and Bell made submissions to Cabinet through Department of Communications. ∆ not given this material except submission by Bell. Minister of 6 Communications recommended appeal be dismissed, which was accepted. ∆ made motion to FCTD for declaration that a hearing should have been given, or that, if hearing was given that it did not comply with principles of natural justice. ∏ argued ∆ had no reasonable cause of action. Application granted by FCTD, ∆ successfully appealed at FCA. ∏ appealed to SCC. i.: Is there a duty to observe natural justice, or at least a lesser duty of fairness, on the GIC (Cabinet) in dealing with parties upon their submission of a petition under s. 64(1) of the National Transportation Act? r.: Must ask what is appropriate to require of a particular authority in way of procedure, given the nature of the authority, the nature of its power and the consequences of the exercise of power to the individuals affected, and nature of relationship between authority and individuals affected. There is no implied duty of fairness (requirement of a hearing) for GIC making a purely “legislative” decision. a.: Estey J.: For the ∏. GIC making a polycentric decision (balance of numerous interests), and is given broad discretion (GIC may act “at any time” and “in his discretion” and may act “on his own motion). This a purely legislative decision, therefore no duty of fairness. Fairness applies to tribunal or agency discharging a function with reference to something akin to a dispute or where the agency is an “investigating body”. It does not apply in cases where the executive is assigned a function performed in the past by the legislature itself and where subject matter is not an individual concern or a right unique to the petitioner. 1.2.2. By-laws and Rule-making Homex Realty and Development Co. Ltd. v. Wyoming (Village) [1980] 2 SCR 1011 (at 140) f.: ∏ and ∆ quarreled over obligation to install services in a subdivision owned by ∏. Without giving notice to ∏, ∆ passed a bylaw under Planning Act which did not allow lots in subdivision to be conveyed unless a new plan was registered or consents were obtained from committee of adjustments – this would allow ∆ to impose conditions. ∏ applied for review to quash bylaw and succeeded at review and on appeal. ∆ appealed to SCC. i.: Did ∆, in passing by-laws, exercise a legislative function? If so, would this subsequently remove the C/L right of ∏ to be heard? If C/L right does apply, did ∆ satisfy its onus? r.: A legislative action in form (a bylaw), but dispute resolution affecting private property rights in function, will draw a duty of procedural fairness. a.: For ∏ (but not award given for ∏ misconduct). Estey J.: Action by ∆ was quasi-judicial, not legislative, since it directly affected the property rights of the ∏ and therefore duty to give notice and right to be heard apply. Dickson J. (dissent on issue of misconduct): It is not necessary to classify ∆ action as “legislative.” Must look at nature of function and facts of each case. Once it is clear that rights are affected, must flexibly apply procedural fairness requirements. A ministerial decision, on broad grounds of policy, affords little protection, while a function that approaches judicial end of spectrum will have greater procedural fairness protection. 1.2.3. Policy Making 7 Bezaire v. Windsor RCSSB (1992), 9 OR (3d) 737 (Div. Ct.) (at 145) f.: ∆ in financial crisis, decided to close 9 schools, but did not give affected students/parents an opportunity to give input. Minister, under statutory authority, issued procedure policy for board closures of schools and ∆ produced its own policy. Neither policy was followed. i.: Is there an obligation on a school board to act fairly in exercising its administrative power to close a school? r.: Given Minister’s procedure policy and ∆ own policy for closing schools as being the “business of the community” there is a required duty of procedural fairness when this school board exercises its power to close a school. This duty requires community consultations. a.: For ∏. The Court: ∆ decision subject to judicial review under Ontario Judicial Review Procedure Act. Decision to reallocate students (which does not require procedural fairness – Ont. CA in Vanderkloet) is distinguishable from closing down a school; in such a case the policies established by the Board from guidelines issued by the Minister must be followed. Guidelines in this case, read as a whole, suggest duty of fairness. Consultation by ∆ after decision did not meet burden. Financial crisis of ∆ does not abrogate duty of fairness. Canadian Association of Regulated Importers v. Canada (AG) [1994] 3 FC 247 (CA) (at 147) f.: ∏ challenged Ministerial decision to change quota distribution system for importation of hatching eggs and chicks, stating they had not been consulted. FCTD judge agreed. ∆ appealed. i.: Are ∏ entitled to fairness when a Minister decides to change quota system for the importation of hatching eggs and chicks? r.: Rules of natural justice do not apply to legislative decisions concerning quota policy, but may apply to individual decision respecting grants of quotas (which affect pecuniary interest), unless legislation suggests Minister must follow rules of fairness. a.: For ∆. Linden JA.: Generally, rules of natural justice do not apply to legislative or policy decisions. Natural justice does not apply to decisions on quota policy, but may apply to individual decisions respecting grants of quotas. There is nothing in the legislation that suggests that Minister must follow rules of fairness. Reed J. (dissent): Traditionally a decision is deemed “legislative” if it sets out general rules which apply to large numbers of persons and not one specific individual. Here, the Minister was exercising a statutory power that empowered him to make a general decision, but which adversely effects a small proportion of the populace. One does not require a “right” to bring application of judicial review. Only require an “interest” or “legitimate expectation”. Here ∏established an sufficient interest (facing considerable economic loss) justifying fairness; general notice was required (like newspaper ad) and an opportunity to submit representations. 1.2.4. Decisions Affecting Rights, Privileges, or Interests Re Webb and Ontario Housing Corp. (1978), 93 DLR (3d) 187 (OCA) (at 153) f.: OHC owned high-rise apartments in downtown TO that were rented at less than market value to low income persons. Managing company recommended termination of Webb’s lease in 1973 8 (who had lived there for 3 years) because of problems caused by her children. OHC officials and board agreed and an application for termination was brought under Landlord Tenant Act (LTA). Webb applied for review of decision, and LTA application stayed. Webb’s application was dismissed and she appealed. i.: Is OHC, even if it was acting administratively in deciding to terminate Webb’s lease, under a “duty to act fairly”? r.: When an individual (in this case disadvantaged) qualifies for a right under statute (state assistance) and receives that right, he has an interest in the benefit derived from the right and is therefore entitled to fairness when dealing with an authority who has the statutory power to withdraw that right. The authority is required to give notice and allow for a response (no formal hearing is necessary). a.: For OHC. Mackinnon ACJO: Must ask what is appropriate to require of a particular authority in way of procedure, given the nature of the authority, the nature of its power and the consequences of the exercise of power to the individuals affected, and nature of relationship between authority and individuals affected (Inuit Tapirisat). In this case, Webb was sent numerous letters advising her that her lease would be terminated if her children’s behaviour did not change. She was visited numerous times by a community relations worker employed by OHC and was similarly informed. There is no evidence that Webb made any effort to respond. Therefore, OHC treated Webb fairly. Hutfield v. Board of Fort Saskatchewan General Hospital District No. 98 (1986), 24 Admin. LR 250 (Alta. QB) (at 158) f.: ∏ applied to be appointed to ∆ medical staff. Hospitals Act gave ∆ board a general responsibility for its affairs and power to make by-laws. S. 11 of by-laws provided that applications be sent to College of Physicians for its recommendation, to chief of its medical staff and to appointments committee. College approved ∏, but board rejected him in 1984. ∏ applied again in December 1985. ∏’s application not sent to College. Appointments committee considered ∏’s application, did not ask ∏ to appear, and denied application. ∏ asked to appear before ∆ when it considered him, he was refused and in February ∆ rejected him again without reasons. ∏ sought certiorari to quash board decision and mandamus to compel reconsideration. i.: Was ∆ required, under duty of fairness, to have ∏ appear before them before making a decision to reject his application to be appointed to the medical staff of the hospital? r.: A body exercising a public duty, if its decision will modify, extinguish or affect a right or interest of a person when that person’s rights or interests are being considered and decided upon in a way that is in law or for practical purposes final, or final subject to appeal, must adhere to procedural standards the precise nature of which will depend upon the nature and extent of the right or interest. a.: For ∏. McDonald J.: There no longer needs to be a “right to which a corresponding obligation of law” exists to employ certiorari because: (1) courts will protect both rights and “interests”; (2) certiorari is available when there is both a duty to act judicially and a duty to act 9 fairly; (3) the content of a duty to act fairly will vary contextually; (4) the distinction noted above is artificial and cannot withstand scrutiny in light of object of judicial review by certiorari. ∏ had no reasonable expectation to be granted application. However his professional interests are affected by decision – if denied privileges, this would speak to some problem with his “credentials, training, suitability, experience and references” and therefore cast a slur on his reputation and limits his ability to practice. Board should have given reasons, its decision was invalid because ∏ application was not sent to College as required by its by-laws and appointments committee had not given a written report with its reasons. Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 (at 57) f.: Π is Jamaican citizen living in Canada illegally since 1981. Has 4 Canadian children. In 1992 was diagnosed with schizophrenia but has shown improvement. Π ordered deported in December 1992 for working illegally and overstaying visitor’s visa. In 1993 Π applied for exemption from s. 9 requirement to apply for permanent residence outside Canada on humanitarian and compassionate grounds (h&c) under s. 114(2) of Immigration Act (IA). Had assistance from lawyer in filing application – contains letters from lawyer, doctor, social worker indicating that Π was making progress and that deportation would likely result in relapse, and that both she and her children would likely suffer emotional hardship if deported. 18 April 94 Officer Caden rejected request without reasons. Notes taken by Officer Lorenz provided upon request by Π (used in decision by Caden). 27 May 94 Π served deportation order for June 17. Order stayed pending appeal. i.: Were the C/L principles of procedural fairness violated with regards to: (i) Participatory rights? (ii) Lack of reasons for decision made by Officer Caden? r.: ∏ not confined to certified question of general importance – only requires this to trigger appeal and can then raise any issue. An administrative decision that affects “the rights, privileges or interests of an individual” triggers a duty of fairness. Duty of fairness applies to h&c decisions. Factors affecting content of duty of fairness: (1) closeness of admin process to judicial process indicates degree of duty; (2) nature of statutory scheme (i.e. presence or absence of appeal); (3) importance of decision to individual(s) affected; (4) legitimate expectations for certain procedures or results create extensive procedural rights, but not substantive rights; (5) choices of procedure by agency. In this case, regarding claims under s. 114(2) of the Immigration Act: participatory rights are met through the allowance of written submissions by the Π (no oral hearing is necessary); procedural fairness rights require the giving of reasons for any decision – however the form of those reasons is flexible. a.: For ∏. L’Heureux-Dube J.: Participatory Rights: (1) H&C decision is not like judicial process since it involves considerable discretion; its role is a statutory exception to immigration law – more relaxed duty of fairness. (2) No appeal to h&c decision (just judicial review) – stronger duty of fairness. (3) H&C decision is important – stronger duty of fairness. (4) No legitimate expectations due to UN Convention – more relaxed duty of fairness. (5) Statute accords considerable flexibility to Minister on procedures – more relaxed duty of fairness. Circumstances therefore require full and fair consideration of issues (not ‘minimal’ consideration). However an oral hearing is not required under duty of fairness here. Π written 10 submissions were sufficient. Provision of Reasons: written reasons are useful in that (1) they foster better decision making (issues and reasoning are well articulated and well thought out); (2) reasons allow parties to see that issues have been carefully considered; (3) reasons invaluable if decision to be appealed; (4) those affected may be more likely to feel they were treated fairly. To avoid overburdening officials, should allow flexibility by accepting various types of written. Reasons should therefore be given in cases where the decision is of important significance to the individual, when there is a statutory right to appeal, or other circumstances. In this case, reasons should be given because of the critical nature of the decision. This was fulfilled when Π received notes from Officer Lorenz. 1.2.5. Non-final (Investigative) Decisions Re Abel and Advisory Review Board (1979), 97 DLR (3d) 304 (Ont. Div. Ct.); aff’d (1981), 119 DLR (3d) 101 (OCA) (at 168) f.: ARB created by order in council under Mental Health Act to annually review all confined psychiatric patients under warrant of LG after begin found not guilty of a criminal offence due to reason of insanity. ARB made report about each patient to LG including any recommendations for release. Lawyers for patients, in preparing for review, requested disclosure of patient files by the institution, especially reports submitted to ARB – ARB refused. At hearing, lawyers asked for disclosure of reports given to ARB – ARB refused since chairman said he had no authority. Application for review made. Claim for access to files from institution failed since institution was expressly prohibited by the Act to disclose the files. i.: Is ARB empowered to disclose reports received from an institution which is statutorily prohibited from disclosing such reports? Is ARB subject to review, given that its recommendations to the LG are not binding? r.: Even though an investigative report may not be binding, if there is a close proximity between investigation and decision, and if individual being investigated is exposed to harm, the parties are entitled to procedural fairness after the report is compiled. a.: For Abel. ARB decision quashed and remitted back for reconsideration. Grange J.: ARB report does not bind LG, therefore minimum procedural standards under Statutory Powers Procedure Act do not apply. Patient’s only hope of release is favourable recommendation of ARB, therefore understandable that counsel for patient would wish to see reports. One fundamental rule of natural justice is adequate opportunity of knowing case to be met and of answering it and putting one’s own case forward. This does not mean that ARB must fully disclose – there is available discretion to determine if disclosure would cause ham to the administration of the centre and to the patient. Here, Chairman denied disclosure request without considering whether such disclosure would cause the harm described, therefore natural justice failed. Dairy Producers’ Co-operative Ltd. v. Saskatchewan (HRC) [1994] 4 WWR 90 (Sask. QB) (at 172) f.: ∆ appointed an officer to investigate an accusation of sexual harassment and report if there was basis for recommending the appointment of a board of inquiry to adjudicate complaint. Investigation process detailed in regulations of Act. ∏ informed of complaint and investigation 11 occurred. ∏ attempted to get more info on particulars of complaint but was denied. Investigator found probable cause to adjudicate complaint. ∆, under its mandate, attempted to settle matter. ∏ was then provided full details of complaint (including evidence). Settlement attempts failed, therefore board of inquiry was established. ∏ then applied to court for it to quash the establishing of the board and the investigator’s report citing “probable cause” to believe Act was infringed, based on allegation of breach of procedural fairness during the process leading to striking of board of inquiry. i.: Are investigator and settlement talks subject to a duty of procedural fairness, even though the actions of these two bodies have no power to affect the rights of the ∏? r.: There is no strict duty of fairness on investigators during the investigation. If the report and/or recommendations of investigator will result in a decision affecting another person’s rights, the investigator in under a duty of fairness that require them to inform the interested party of (1) the substance of the case against it and (2) allow an opportunity for responding representations or submissions. This duty may not arise if the report will not affect a person’s rights. a.: For ∆. Wright J.: In this case the investigator had no power to affect rights of ∏. Settlement negotiations that followed also did not affect rights of ∏. Rights of ∏ only would be affected one Board of Inquiry set up. Settlement negotiations went on for 6 months, therefore ∏ knew ∆ case. This amounted to ∏ waiving its right to object to investigator’s process (as being procedurally unfair) if it had the right (which it did not). Irvine v. Canada (Restrictive Trade Practices Commission) [1987] 1 SCR 181 (at 177) f.: Under Combines Investigation Act, there is a two-stage process for suspected unlawful trade practices. First is an inquiry conducted by a hearing officer appointed by ∆. Officer produced report submitted to ∆, which then must decide if public inquiry is necessary. Officer proceeded in camera and did not follow all rules of procedural fairness (limited right of witnesses to be present when other witnesses were being examined, restricted cross-examination rights). ∏ challenged officer’s process, wishing right to be present for all witness testimony and right to cross-examine. i.: While investigating the claims of unlawful trade practices, did the Officer’s proceedings run contrary to the duty of fairness? r.: Favourably citing Abel, an investigating body with no determinative power to affect rights/interests of a party is not subject to strict rules of procedural fairness. Their procedure is flexible. a.: For ∆. Estey J.: The Act provides that any report that is made “against another person”, the ∆ shall make no such report unless such person has been allowed “full opportunity to be heard in person or by counsel”. Director may be called to present records/evidence to AG for consideration. This is purely an information gathering process. AG would then lead an investigation bound by rules of fairness. In any criminal prosecution that may follow, no testimony ∏ had given at hearing to be used against ∏ at trial. Director may be required to submit an interim report outlining evidence obtained and Director’s opinion, but that is the end of the matter. Minister has no power to take further action, therefore investigative process has no determinative power to affect rights/interests of ∏. Therefore, it was sufficient that Officer 12 allowed all parties to be represented by counsel and to object to improper questioning and to re- examine their clients to clarify the testimony given (sufficient procedural fairness). Summary of Non-Final Decisions For non-final decisions, no universal rule regarding procedural fairness. In Canada, must look at proximity of investigator’s report and final decision, and exposure to harm of those being investigated. 1. Investigation – no strict procedural fairness rights 2. Consideration of Investigator’s Report – procedural fairness rights 3. Hearing by tribunal – procedural fairness rights 1.3. Procedural Fairness Arising From Legitimate Expectations Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 SCR 1170 (at 185) Sopinka J.: “The principle…is simply an extension of the rules of natural justice and procedural fairness. It affords a party affected by the decision of a public official an opportunity to make representations in circumstances in which there otherwise would be no such opportunity. The court supplies the omission where, based on the conduct of the public official, a party has been led to believe that his or her rights would not be affected without consultation.” What conduct creates a legitimate expectation? (1) Representations; (2) Past practice (3) Nature of the interest at stake (Baker). Legitimate expectations provide procedural (not substantive) fairness (1) where C/L would not normally accord any procedures; (2) where C/L would not normally accord that level of procedure. Reference re Canada Assistance Plan [1991] 2 SCR 525 (at 186) f.: CAP authorizes Feds to enter into agreements with provinces for cost-sharing social assistance and welfare programs. S. 8 provided that the agreements would remain in force as long as relevant provincial law was in operation, subject to termination by consent, or unilaterally given 1 year’s notice. Without notice, feds introduced Bill limiting increase in financial contribution to BC, Alberta and Ontario to a figure below those in agreements with provinces. i.: Is government precluded from introducing bill by virtue of legitimate expectation that amendments would only be made to agreements by consent of provinces? r.: There is no legitimate expectation that can allow the courts to prevent Parliament from introducing legislation. a.: Sopinka J.: “If doctrine of legitimate expectations required consent, and not merely consultation, then it would be the source of substantive rights; in this case, a substantive right to veto proposed federal legislation.” There is not authority supporting this. Legitimate expectation is part of procedural fairness. Procedural fairness does not apply to bodies exercising purely legislative function (Inuit Tapirisat) and/or a ministerial decision on broad grounds of public policy (Martineau). (Appears to broaden concept of “legislative function” to include ministerial decisions. Therefore, where doctrine of legitimate expectations has most promise, i.e. ministerial decisions, this definition may be interpreted to remove doctrine from applying to such decisions.) Courts do no intervene with the process of introducing legislation in Parliament on grounds of legitimate expectations. To allow otherwise could bring the business of Parliament to a standstill. 13 Also, it is fundamental to our system that a government is not bound by the acts of its predecessors. Furey v. Roman Catholic School Board for Conception Bay Centre (1991), 2 Admin. LR (2d) 263 (Nfld. SCTD); rev’d at Nfld. CA (at 191) f.: ∆ decided to close an elementary school. Π (13 residents with children attending the school) sought certiorari to quash decision, alleging that decision was taken without public input that constituted a breach of procedural fairness. In past, ∆ had consulted parents concerning the amalgamation of two schools. There were also Department of Education guidelines that establish a process of consultation prior to a decision to close a school. These guidelines were not followed by ∆. i.: When legislation is silent on concept of procedural fairness, does C/L introduce a duty of procedural fairness that, when not followed, justify a court setting aside a decision to close the school? r.: Where there are guidelines for school closures that suggest public consultation and where a school board has consulted with the public in the past, the court will apply a C/L duty of fairness (notwithstanding legislative silence on procedural fairness) since there is a legitimate expectation that a school board will consult with the public before closing a school. a.: For Π . Decision quashed and remitted back to ∆ for reconsideration. Wells J.: The ∆ decision was an administrative (which deal with specifics) and not a legislative one (which are usually general decisions of broad application). Certain administrative decisions concerning education (which have profound effects on children, parents, community and property values) may import a duty of fairness. Procedural fairness would have been satisfied if the guidelines had been followed. History of consultation did create a “reasonable expectation” that ∆ was operating under a system that allowed for procedural fairness, and that they would continue to do so when making the decision to close the school. Mount Sinai Hospital v. Quebec (Minister of Health and Social Services) [2001] 2 SCR 281 (at 195) f.: Π was told by prior Minister that if it moved location it would have its license regularized. Π did so, however its attempt to have its license updated, the new minister (∆ ) refused, because to do so would force the government to provide extra funding, which was not a priority at the time. Π sought mandamus to compel ∆ to issue license. Quebec SC denied motion because doctrine of legitimate expectations does not create substantive rights. Quebec CA agreed but awarded mandamus under public law estoppel. ∆ appealed. i.: Was the Π entitled, through doctrine of legitimate expectations based on the previous action of the prior minister, to procedural fairness before the current minister decided against their license renewal? r.: Doctrine of legitimate expectations does not import substantive rights. There are legitimate expectations that Minister would make reasonable decision based on evidence. Estoppel may be available against a public authority, but the requirements for it go well above those for legitimate 14 expectations. The claimant must establish reliance on the representation and that he acted on it or in some way changed his position. However, must be sensitive to factual and legal context. If statutory decision maker has high status and broad power, estoppel will not apply. a.: For Π . Binnie J.: Doctrine of Legitimate Expectation – looks to conduct of the public authority in the exercise of power including established practices, conduct or representations that can be characterized as clear, unambiguous and unqualified in order for to import procedural rights. If substantive relief is to be awarded, more demanding conditions precedent must be fulfilled than what is required under doctrine of legitimate expectations. Current minister made a patently unreasonable decision (no evidence that granting a license would require additional funding from government) and failed to act in a procedurally fair manner in refusing the license. Promissory Estoppel – Estoppel may be available against a public authority, but the requirements for it go well above those for legitimate expectations. The claimant must establish reliance on the representation and that he acted on it or in some way changed his position. However, must be sensitive to factual and legal context. If statutory decision maker has high status and broad power, estoppel will not apply. Here, Minister is decision maker and he is mandated in broad terms to act in public interest. Therefore no grounds for estoppel. 1.4. Procedural Fairness and the Canadian Bill of Rights NAPO v. Canada (AG) (1990), 60 DLR (4th) 712 (FCA) (at 211) f.: Revisitation of issue in Inuit Tapirisat – procedural obligations of GIC in the context of “Cabinet Appeals” from the decision and orders of regulatory agencies. At trial, judge held that Cabinet, in such cases, was determining the “rights and obligations” of subscribers to the Bell Canada system and was therefore bound to act in accordance with the “principles of fundamental justice”. ∆ appealed. i.: Is GIC bound, by s. 2(e) of the Bill of Rights, to follow principles of fundamental justice when hearing “Cabinet Appeals” of decisions/orders of regulatory agencies? r.: Not clear what rule is here. (1) May be that no rights or obligations of NAPO were affected by GIC decision, therefore they had no standing; or (2) “rights and obligations” under s. 2(e) of Bill of Rights does not include the setting of subscriber rates and the determination of costs allowed to be taken into account in determining Bell Canada’s allowable rate of return. a.: For ∆. S. 2(e) of BOR does not apply to GIC. Stone JA.: NAPO has right to intervene on behalf of members of general public in CRTC proceedings. However no rights or obligations unique to them were determined by the GIC decision; “such rights, if any, flowed to all of Bell Canada’s subscribers regardless of whether they participated or not.” Nothing in s. 64(1) of the Act restricted GIC in varying CRTC decision provided the variation did not result in unjust or unreasonable rates or rates that were discriminatory. Authorson v. Canada (AG) 2003 SCC 39 (supplemental material) f.: Disabled veteran’s funds used for their pensions were administered by Dept. of Veteran’s Affairs. These funds were rarely invested or credited with interest until 1990. Parliament chose to limit Crown liability by enacting s. 5.1(4) of Department of Veteran’s Affairs Act, which provides that no claim shall be made after enactment of provision for interest on moneys held/administered 15 by the Minister during any period prior to January 1, 1990. Π (class) sued Crown for breach of fiduciary duty and claimed s. 5.1(4) was inoperative under Canadian Bill of Rights because inconsistent with right not to be deprived of enjoyment of property except by due process of law (s. 1(a)) and right to a fair hearing in accordance with principles of fundamental justice (s. 2(e)). Trial and COA held for Π . ∆ appealed. i.: Is s. 5.1(4) of Department of Veteran’s Affairs Act inoperative for violating s. 1(a) and/or s. 2(e) of the Bill of Rights? r.: S. 1(a) of the BOR only provides procedural rights (notice and representations) with regards to the right of enjoyment of property only in context of adjudication of such rights before a court/tribunal, but not where government unambiguously legislates to completely eliminate such rights. S. 2(e) only guarantees the fundamental justice of proceedings before any court/tribunal/administrative body that determines individual rights and obligations; it does not apply to Parliament while it is enacting legislation. The BOR does not provide substantive rights. a.: For ∆. Major J.: The Crown did owe a fiduciary duty to Π and did owe interest to Π . However, the BOR does not entitle Π to procedural rights when Parliament is enacting legislation (such a right did not exist prior to 1960, nor does it exist now), and does not protect the enjoyment of property when Parliament clearly destroys such a right by unambiguous legislation. The guarantee of fundamental justice similarly only applies to courts/tribunals that determine individual rights and obligations, and not to Parliament. 1.5. Procedural Fairness and the Charter NOTE: Recent decisions indicate that by virtue of implication of their empowering statute, tribunals can determine constitutional issues. Paul v. BC (Forest Appeals Commission) 2003 SCC 55 - ∆ has jurisdiction to determine if Π could defend its actions (illegally cutting down trees on Crown land) by claiming aboriginal title. NS (Worker’s Comp. Bd.) v. Martin 2003 SCC 54 – ∆ asked Π to rule that certain provisions of WC Act violated s. 15 of the Charter. SCC ruled that by implication of its empowering statute the Π can determine if relevant provisions of the Act violated s. 15 of the Charter. • Unlike s. 2(e) of the Bill of Rights, which only allows for procedural rights, s. 7 of the Charter has both procedural and substantive guarantees (Re BC Motor Vehicle Act). Singh v. Canada (Minister of Employment and Immigration), [1985] 1 SCR 177 (at 215) f.: Π were convention refugee claimants landed in Canada. Minister, on advice of RSAC, determined they were not convention refugees. Π applied to Immigration Appeal Board for redetermination. Their application were not referred to an oral hearing because IAB determined on strength of material submitted by Π that there were no reasonable grounds for believing that they could establish claim at a hearing. Π appealed to FCA but failed. Π appealed to SCC. i.: Were the Π denied procedural fairness (in that they did not have a fair opportunity to present refugee claims or to know the case they had to meet) under ss. 45, 70 and 71 of the Immigration Act, 1976, contrary to s. 7 of the Charter? 16 r.: “Life, liberty and security of the person” are 3 distinct and separate interests and each must be given meaning. “Security of the person” must encompass freedom from the threat of physical punishment or suffering as well as freedom from actual punishment/suffering. To deny a refugee convention status when there is a threat to one’s life or freedom if deported from Canada is a deprivation of security of the person. Fundamental justice requires one to know the case to be met, and requires an oral hearing where credibility is in issue. To deny access to Ministerial policies and information concerning a refugee’s application for Convention status, when the applicant must demonstrate that the Minister was wrong in denying such status, makes one unable to know the case to be met, which accordingly this violates fundamental justice. Administrative convenience is not a justifiable s. 1 limit to the rights under s. 7. a.: For ∏. Wilson J.: S. 7 Rights of Life, Liberty and Security of the Person – “Everyone”, under s. 7 of the Charter, includes every human being who is physically present in Canada. “Life, liberty and security of the person” are 3 distinct and separate interests and each must be given meaning. Under the Immigration Act, a convention refugee is granted the right to a determination by Minister as to whether a permit should be granted entitling him/her to remain in Canada, the right not to be returned to a country where his life or freedom would be threatened, and the right to appeal a removal order or deportation order made against him. Must determine if deprivation of these rights deprive the right to life, liberty and security of the person within meaning of s. 7. “Security of the person” must encompass freedom from the threat of physical punishment or suffering as well as freedom from such punishment. Although applicants have no substantive right to be granted convention status, to deny convention status in ∏’s circumstances is to deny the right to not be removed from Canada to a country where one’s life or freedom would be threatened. The denial of such a right does amount to a deprivation of security of the person under s. 7. S. 7 Principles of Fundamental Justice - Minimum concept of fundamental justice is “that the tribunal which adjudicates upon his rights must act fairly, in good faith, without bias and in a judicial temper, and must give to him the opportunity adequately to state his case.” Written submissions may be adequate substitute for oral hearing in appropriate circumstances. However where there is a serious issue of credibility at stake, an oral hearing will be required. Applicants appealing from a negative ruling on their convention status are not given access to Ministerial policies and information, but must show on the balance of probabilities that the Minister was wrong. It is essentially impossible to do so unless applicants are aware of the case to be met. Therefore this procedure contravenes fundamental justice. Application of s. 1 - Administrative convenience is not a justifiable reason to limit the rights under s. 7 (∆ counsel argued that requiring an oral hearing in each case would overly burden the IRB – subsequent jurisprudence suggests this can be a valid argument) Wilson v. BC (Medical Services Commission) (1988), 53 DLR (4th) 171 (BCCA) (at 236) f.: In BC medical care, doctors bill government for treatment to patients. In 1983, ∆ established a cost-control scheme limiting number of practicing doctors and restricting geographic areas where they could practice. Doctors required a “practitioner number” in order to bill for services. Current doctors were assigned numbers while new ones had to apply to ∆ , who was advised about need by local/regional committees. Π represented doctors making various claims (some from outside 17 BC were denied “practitioner numbers”, others were given numbers subject to geographic restrictions) and argued the scheme violated ss. 6, 7 and 15. Π lost at trial but appealed. i.: Does this scheme interfere with the liberty of professionals to practice their profession at a venue of their choosing, contrary to meaning of ‘liberty’ under s. 7 of the Charter, even though there is an incidental economic component of the right being raised? r.: “Liberty”, under the meaning of s. 7, includes the right to freedom of movement as well as the right to choose one’s occupation and where to pursue it, subject to state deprivations in accordance with principles of fundamental justice. a.: For ∏. The Court: This case is not solely about the right to work, but is about the right to pursue a livelihood or profession, which concerns one’s dignity and sense of self-worth. The plan does not guarantee an income to doctors – it simply provides a right to be paid for services rendered. The effect of the scheme is to deny the right to pursue a profession in the community which one chooses. The government can do this but only in accordance with fundamental justice. These schemes are not always ultra vires. Here, there is procedural unfairness (no hearing, no duty to make decisions, no way of knowing current state of need for doctors in any area), unjust discretion (law is too vague and uncertain) and discrimination in application of the system. (the quality of this decision as an authority is under question) Blencoe v. BC (HRC), [2000] 2 SCR 307 (at 246) f.: Π was a cabinet member of the BC NDP government. In July and August 1995, two complaints of sexual harassment were filed against Π with the BC HRC. Hearings were scheduled 30 months later, in March 1998. Π was subject to intense media attention once the allegations were made, and suffered severe depression and considered himself “unemployable” in BC due to the outstanding complaints. He applied for judicial review in November 1997 to stay the complaints due to unreasonable delay in processing the complaints, which inhibits his ability to make full answer and defence to the allegations against him. This delay caused him serious harm that amounted to an abuse of process and denial of natural justice. Π won at BCCA, who found that his rights under s. 7 of the Charter (security of the person) were violated and this violation was not in accordance with fundamental justice. ∆ appealed. i.: Does Charter apply to actions of BC HRC? Have Π ’s s. 7 rights been violated by state-caused delay in the proceedings? If not, was Π entitled to remedy pursuant to administrative law principles where the delay did not interfere with the right to a fair hearing? If Π is entitled to a remedy, was stay of proceedings the appropriate one? r.: “Liberty” is engaged in narrow circumstances where state compulsion/prohibitions affect important and fundamental life choices that go to the core what it means to enjoy individual dignity and independence (ex. Parental decisions regarding medical care for their children [B(R)]; where a municipal worker can establish his/her home [Godbout]; the custody of children [G(J)]). This does not include economic liberty or economic security. “Security of person” engaged when there is state interference with bodily integrity (criminal sanction) and serious state-imposed psychological stress (e.g. regulating abortion– Morgentaler [1988]). Two requirements: (1) the psychological harm must be state imposed; (2) psychological 18 prejudice must be serious. S. 7 does not create a constitutional right to dignity, however human dignity/reputation is an underlying value that must guide the courts in interpreting the Charter. Administrative C/L Remedies of Abuse of Process - There must be proof of significant prejudice which results from the delay for there to be a C/L remedy. It must be a delay that has caused significant psychological harm to a person, or attached a stigma to a person’s reputation such that the HR system would be brought into disrepute. Whether delay results in breach of duty of fairness depends on nature of case, facts and issues, purpose and nature of proceedings, whether Π contributed to delay; contextual factors, like nature of the various rights at stake, must also be considered to determine if community’s sense of fairness would be offended by delay. a.: For ∆. Bastarache J.: S. 7 applies outside the criminal context (New Brunswick (Minister of Health and Community Services) v. G(J)), where there is “state action which directly engages the justice system and its administration”. “Life, liberty and security of the person” are 3 distinct and separate interests and each must be given meaning (Singh). “Liberty” is engaged in narrow circumstances where state compulsion/prohibitions affect important and fundamental life choices that go to the core what it means to enjoy individual dignity and independence (ex. Parental decisions regarding medical care for their children [B(R)]; where a municipal worker can establish his/her home [Godbout]; the custody of children [G(J)]). This does not include economic liberty or economic security. In this case the state has not prevented the respondent from making any fundamental personal choices, therefore liberty interest is not engaged. “Security of person” engaged when there is state interference with bodily integrity (criminal sanction) and serious state-imposed psychological stress (e.g. regulating abortion– Morgentaler [1988]). Two requirements: (1) the psychological harm must be state imposed; (2) psychological prejudice must be serious. S. 7 does not create a constitutional right to dignity, however human dignity/reputation is an underlying value that must guide the courts in interpreting the Charter. In this case it is assumed, based on trial judge’s finding, that the outstanding complaints did contribute to the stigma, but the stress, anxiety and stigma that arise from administrative or civil proceedings are not “serious” in this case. However this does not mean that s. 7 cannot be invoked in HR proceedings involving extreme/serious delay. Administrative C/L Remedies of Abuse of Process - There must be proof of significant prejudice which results from the delay for there to be a C/L remedy (not so in this case). It must be a delay that has caused significant psychological harm to a person, or attached a stigma to a person’s reputation such that the HR system would be brought into disrepute. For abuse of process to result in a stay the process must be “unfair to the point that they are contrary to the interests of justice.” Whether delay results in breach of duty of fairness depends on nature of case, facts and issues, purpose and nature of proceedings, whether Π contributed to delay; contextual factors, like nature of the various rights at stake, must also be considered to determine if community’s sense of fairness would be offended by delay. In this case delay was not inordinate. Lebel J. (dissenting in part): Administrative C/L Remedies of Abuse of Process - Administrative delay that is determined to be unreasonable based on its length, its causes, and its effects, is abusive and contrary to administrative law principles. It is not limited to situation that bring the human rights system into disrepute. There can be remedies other than stay (reserved for highest threshold of abusiveness) for lower threshold of unreasonable delay. Must assess delay considering 3 factors: (1) Length of Delay; (2) Cause of Delay; (3) Impact of Delay on Π . Stay of proceedings requires heavy burden since it would negate public interest in enforcement of HR 19 legislation, and radically affects rights of complainants. It should be limited to those situations that compromise the very fairness of a hearing and where delay in the conduct of the process leading to it would amount to shocking abuse of process. In this case, there is a significant delay but the hearing will remain fair. Therefore COA stay is set aside and an order is given for an expedited hearing. 2. Choice of Procedures Goldberg v. Kelly 397 US 254 (1970) (USSC) (at 287) f.: Welfare recipients challenged procedures for termination of welfare payment in NY state/city as violating 14th amendment (removal of property right without due process of law). Before termination, recipients were given notice and reasons for termination (in NY city, this was preceded by discussion with caseworker) and were entitled to make written representations. After termination, recipients were entitled to trial-type hearing. i.: What procedures are appropriate when moving to terminate welfare payments in NY state/city? r.: To terminate welfare payments, a pre-termination oral hearing, with or without counsel, must be held, with reasons given after decision is handed down. a.: For ∏. Justice Brennan: Providing pre-termination hearings are justified because removal of welfare removes person’s daily subsistence; hearing is required because (1) written decisions are not sufficient since many applicants may not write well and cannot obtain professional help; (2) written submissions are not as flexible and do not allow applicant to mold arguments to issues decision maker feels are important; (3) written submissions are not useful for assessing credibility; (4) second-hand presentation of applicants case to decision maker by caseworker is inadequate since he/she is one who gathers information upon which the charge of ineligibility rests. Recipients must also be allowed to have counsel. A decision maker must provide reasons and indicate evidence relied upon to make the determination. Government interests in conserving fiscal/admin resources do not override this requirement (can cut costs by developing efficient procedures). Mathews v. Eldridge 424 US 319 (1976) (USSC) (at 289) f.: Same scenario as in Goldberg v. Kelly, except here ∆ challenged the procedures for the termination of disability benefits under the Social Security Act by reference to 5th amendment. District court followed Goldberg and ruled that the procedures were inadequate. ∏ (secretary) appealed. i.: What procedures are appropriate when moving to terminate disability payments under the Social Security Act? Does Golberg v. Kelly govern? r.: Identifying dictates of due process require consideration of 3 factors: (1) nature of private interest that will be affected by official action; (2) risk of an erroneous deprivation of such interest through procedures used and probable value, if any, of additional or substitute procedural safeguards; (3) Government’s interest, including function involved and fiscal/admin. burdens that additional/substitute procedures would entail. 20 a.: For ∏. Justice Powell: Here, the long delay (over 1 year) between benefit cut-off and the holding of a hearing and the typically modest resources of a family of a disabled worker create significant hardship. However, disability is not directly related to financial need and potential deprivation here is likely to be less than in Goldberg given other means of available government assistance. Therefore something less than an evidentiary hearing is sufficient prior to adverse administrative action regarding disability benefits. Must also consider fairness/reliability of current system. Difference between current case and Goldberg is that there is heavy reliance on medical tests, not credibility, in determining disability entitlement. Additionally, written representations are made by physicians and by applicants with help SSA office. Recipient has full access to information relied upon, is given a tentative assessment with reasons prior to cut-off and provides for written rebuttal. This allows the recipient to “mold” his argument to respond to precise issues which decision maker regards as crucial. Therefore, value of oral hearing is substantially less. From public interest perspective, requiring a full oral hearing would incur extra monetary and administrative costs that would not be insubstantial. Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3 (at 298) f.: ∏ applied for landed immigrant status. Minister issued certificate under s. 53(1)(b) of the Immigration Act stating ∏ was a danger to the security of Canada as a prelude to an order deporting ∏. ∏ had opportunity to make written submissions, he did not have a copy of the immigration officer’s report (which was the basis for the Minister’s decision) and therefore was not able to respond to it orally or in writing. The report was based on material from CSIS. i.: Are the procedures for deportation set out in the Immigration Act constitutionally valid? r.: A Convention refugee who has made a prima facie case that there may be a risk of torture upon deportation under s. 53(1)(b) of the Immigration Act is entitled to the following procedures in accordance with his/her right of fundamental justice under s. 7 of the Charter: 1. ∏ must be informed of case to be met. This includes material which Minister bases decision on (subject to reduced disclosure for safeguarding confidential public security documents); 2. There must be an opportunity to respond to the case presented by the Minister. Written submissions must be accepted from the subject of the Minister’s order after the ∏ has been provided with an opportunity to examine the material being used against him; 3. Minister must then consider the submissions and provide written reasons for decision. They must rationally sustain a finding that there are no substantial grounds to believe that ∏ will be subject to torture, execution or other cruel/unusual punishment if deported. Minister must also outline, subject to valid legal reasons for non-disclosure, why the refugee is a danger to the security of Canada. The Minister must make the written decision herself. a.: For ∏ - requirement of strong procedural protections. The Court: Principles of fundamental justice demand, at minimum, compliance with C/L requirements of procedural fairness (Singh). The C/L is not constitutionalized; it is used to inform the constitutional principles that apply. Five Baker factors for procedural fairness: (1) closeness of admin process to judicial process indicates degree of duty; (2) nature of statutory scheme (i.e. presence or absence of appeal); (3) importance of decision to individual(s) affected; (4) legitimate expectations for certain procedures or results create extensive procedural rights. This does not create substantive 21 rights; (5) choices of procedure by agency [ability to choose own procedures]. In this case: (1) resemble judicial proceedings (balancing risks) but also involves discretion. (2) There is no provision for a hearing, no requirement of written or oral reasons, no right of. Therefore there is a need for strong procedural safeguards. (3) ∏ is a Convention refugee who faces risk of torture if deported back to Sri Lanka. Therefore there is a need for strong procedural safeguards. (4) Canada is signatory to int’l conventions prohibiting deportation to torture, therefore ∏ had legitimate expectation that wouldn’t be deported when high risk of torture – there is a need for strong procedural safeguards. (5) Minister is free under terms of statute to choose whatever procedures she wishes to make decisions under Act (considerable discretion). However this must be reconciled with elevated procedural protections mandated by refugees who face torture upon deportation. Application of s. 1: Limitations on rights must be connected to the objective and proportional. Here the connection is lacking. Excepting some Convention refugees from the protection of the Act does not justify the failure of the Minister to provide fair procedures when that exception involves a risk of torture upon deportation. Statutory Powers Procedures Act (Ont.) (at 302) (1) Prevails over all other Acts (prior and subsequent) unless express legislative override (s. 32) (2) Application: (i) to a proceeding of a tribunal in exercise of statutory power of decision conferred by or under an Act of Legislature (primary and subordinate (regulations) legislation) that requires tribunal to hold a hearing [s. 3(1)] (ii) tribunal requires a hearing “otherwise by law” (C/L – prior to Nicholson) [s. 3(2)]. (3) If tribunal’s rules made under s. 25.1 deal with pre-hearing conferences, the tribunal may direct the parties to engage in such conferences [s. 5.3(1)] (4) If tribunal’s rules made under s. 25.1 deal with disclosure, the tribunal may order for (a) the exchange of documents, (b) oral/written examination of a party, (c) exchange of witness statements, (d) provision of particulars, (e) any other form of disclosure, at any time before hearings are complete [s. 5.4(1)] (5) Where good character of party is in issue, party is entitled to reasonable info regarding allegations prior to the hearing [s. 8]. (6) A tribunal may take judicial notice facts [s. 16] (7) A tribunal must give written reasons for a decision if requested by any party [s. 17(1)] (only apply Baker if SPPA does not apply). (8) S. 25(1) – an appeal from a decision of a tribunal to a court operates as a stay in the matters unless tribunal says otherwise or unless there is a provision in the empowering Act that states that an appeal does not act as a stay. S. 25(2) – An application for judicial review is not considered an appeal under s. 25(1). Must then make an application to the court for a stay of the proceedings. (9) A tribunal has the power to determine its own procedures and make rules governing the practice and procedures before it [s. 25.1] 3. Specific Content Issues 3.1. Pre-Hearing Issues 3.1.1. Notice Problems about notice placed in 4 categories: (1) problems about form, (2) problems about the manner of service, (3) problems about time, (4) problems about the contents. • Where there are indefinite interested parties, public notice (in newspapers of wide circulation) is required (like in the case of school closures – Re Hardy and Minister of 22 Education (1985), 22 DLR (4th) 394 (BCSC)). However the notice must be clear enough that the majority of those who may be affected are effectively made aware (like those whose property would be affected by a proposed hydro transmission line in Re Central Ontario Coalition and Ontario Hydro (1984), 10 DLR (4th) 341 (Ont. Div. Ct.)). • It is not clear what the effect will be for those who are given notice too late or respond too late from that notice due to the unreliability of snail mail. • Notice must be given long enough before the date of the proposed hearing to give the party enough time to decide whether to participate and to prepare. • The content of a notice must provide sufficient information to indicate to the party served what is at stake at the hearing (in R. v. Ontario Racing Commission, ex parte Taylor (1970), 15 DLR (3d) 430 (Ont. CA) Taylor was served notice to appear at a hearing to explain why his horse tested positive for a banned substance but was not told that if he did not justify the infringement, he would suffer certain consequences). Canada (AG) v. Canada (Commission of Inquiry on the Blood System in Canada – Krever Commission) [1997] 3 SCR 440 (at 342) f.: Krever JA was appointed to head a commission to uncover how more than 1000 Canadians became infected by HIV and 12,000 became infected with Hep C in the early 80’s. Commission set up procedural rules: (1) ordinarily Commission counsel would first question witness; (2) all parties with standing and all witnesses had right to counsel; (3) each party had right to cross- examine any witness who testified and counsel for witness without standing had right to examine witness; (4) all parties had right to apply to have any witness called whom Commission chose not to call; (5) all parties had right to receive copies of all evidence and to submit their own evidence; (6) all hearings in public unless application made for confidentiality; (7) Commission may receive evidence inadmissible in court, but would be mindful of dangers of such evidence and its possible effects on reputation. Hearings were held from Nov 1993 – Dec 1995. October 26, 1995, Commission delivered memorandum to all parties inviting them to make confidential submissions to Commission of findings of misconduct they felt should be made, noting that any person who will have such a finding made against them will be given notice. On December 21, 1995, 45 confidential allegation notices naming 95 individuals, corporations and governments were submitted. Recipients of misconduct notice were given until January 10, 1996 to announce whether and how they would respond. Many recipients brought applications for judicial review in Federal Court. On June 27, Richard J ([1996] 3 FC 259 (TD)) declared that no findings of misconduct could be made against 47 of the applicants, but dismissed others, who then appealed. Federal Court of Appeal, [1997] 2 FC 36 (CA) quashed one notice but dismissed remaining appeals. i.: What are the content limitations that apply to notices to parties warning them of potential findings of misconduct (did content exceed commission’s jurisdiction)? Were the notices delivered too late (given on last day of hearings)? Did those who were served notice not given enough time to respond. r.: Notices should be as detailed as possible, even if content appears to amount to a finding that would exceed jurisdiction of Commissioner (this limit only applies to final report). There is no statutory requirement that Commissioner give notice as soon as foresee possibility of allegation of misconduct. Where evidence is extensive/complex, may be impossible to give notice before 23 end of hearings, and vice versa. So long as adequate time is given to make submissions in response to notice, delivery of notices late in hearings will not constitute unfair procedure. a.: For ∆. Appeal dismissed. Cory J.: Due to broad mandate, Commissioner can make findings of fact which might amount of misconduct. However report cannot duplicate wording of CCC nor should they use words used by courts to express findings of civil liability. The words “failed” and “responsible” do not imply legal liability. Procedures were adopted consensually after meeting with all parties. Since this is not a criminal proceeding, notices outlining “case to be met” are not required. So long as adequate time is given to make submissions in response to notice, delivery of notices late in hearings will not constitute unfair procedure. In this case the nature of evidence was complex, therefore Commissioner entitled to deliver notices late in hearings. Appellants were also given adequate time to respond. 3.1.2. Discovery Canadian Pacific Airlines Ltd. v. Canadian Air Line Pilots Association, [1993] 3 SCR 724, SCC ruled that Canada Labour Code did not empower Labour Relations Board to order pre- hearing discovery. 3.1.2.1. Documents in Possession of 3rd Party Ontario (HRC) v. Ontario (Board of Inquiry into Northwestern General Hospital) (1993), 115 DLR (4th) 279 (Ont. Div. Ct.) (at 354) f.: Board of Inquiry set up under OHRC to hear complaint of racial discrimination made by 10 nurses employed by hospital. Board ordered ∏ to provide ∆ (1) with all statements made by complainants to ∏ at investigation stage, (2) with statement and identity of any witness interviewed by ∏ whom ∏ does not propose to call and whose statements might reasonably aid ∆ in answering ∏’s case. ∏ applied for review of this order. i.: Does ∆ Board (decision maker) have legal right to order discovery of ∏ (3rd party) evidence prior to onset of inquiry by Board? r.: Ss. 8 and 12 of SPPA empowers ∆ to order production of all investigatory documents obtained by ∏ Commission, subject to limitation of privilege. [However s. 12 applies prima facie to an order given during a hearing, not during pre-hearing; s. 8 only allows an order to disclose reasonable information prior to a hearing in which the “good character, propriety of conduct or competence of a party is an issue” – applies to HR proceedings. NOTE: This problem has been rectified by amendment to SPPA – s. 5.4(1) – allowing full disclosure only if tribunal has established rules under s. 25.1. If SPPA does not apply, must follow Canada Pacific (supra) and rely on explicit statutory empowerment to make an order of disclosure). Any claim to litigation privilege does not extend to investigative functions of the ∏. There is no class privilege for communications between complainants and officers of ∏. Fruits of investigation are public property and not property of the ∏. To eliminate element of surprise (and ensure justice is served) in Board of Inquiry under HR legislation, complete information should be provided; additionally, role of ∏ counsel is analogous to Crown counsel in criminal proceedings – role is not to ensure ‘conviction’ but to bring before ∏ what counsel considers credible evidence of alleged discrimination (principle of Stinchcombe – what is good for civil, criminal law, is also good for certain kinds of tribunals). 24 a.: For ∆ (disclosure allowed). Application for review of disclosure order dismissed. The Court: Any claim to litigation privilege does not extend to investigative functions of the ∏. There is no class privilege for communications between complainants and officers of ∏. Principles of Stinchcombe apply to ∏ therefore ∏ must supply “fruits of investigation”. 3.1.2.2. Documents in Possession of Decision-Maker (Tribunal) CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review Board), [1994] 3 FC 425 (CA) (at 358) f.: ∆ scheduled a hearing to determine whether the drug Habitrol marketed in Canada by ∏ is being sold at an excessive price. Consequences of such a finding under s. 83 could be order for price reduction, a payment of an offset amount from estimated excess corporate revenue and, on a finding of a policy of selling at an excessive price, an offset of up to twice the amount of the estimated excess revenue. In deciding upon a full hearing, Chairman considers report from Board staff. ∏ seeks disclosure of all documents in ∆ possession which relate to this matter, particularly the report relied upon by Chairman in calling hearing. i.: What is the extent of disclosure required to the ∏ (A) of documents in hands of ∆ (decision maker)? r.: A board/tribunal that has an economic regulatory function (in the public interest) that does not affect human rights in a way akin to criminal proceedings will be given leeway in its choice of disclosure under the duty of fairness (only need to provide information such that accused can meet its case) if, in pursuing its mandate, the board/tribunal is required to receive confidential information from its staff/investigators. a.: For ∆. ∏ appeal for disclosure dismissed. MacGuigan JA.: Concept of procedural fairness is variable and is to be decided in the specific context of each case. The context consists of (1) nature and seriousness of matters in issue, (2) the circumstances, (3) the governing statute (Knight). Board is a regulatory agency operating in the public interest. It is in the public interest that it’s hearing is not unduly long. It must balance its duty to the applicant against limiting its ability to discharge is responsibilities in the public interest. Board’s obligations of disclosure under the duty of fairness have been met since it has provided more than enough information to the ∆ to enable it to meet its case. Law and policy require some leeway be given to an administrative tribunal with economic regulatory functions if, in pursuing its mandate, the tribunal is required to receive confidential information. To require the board to disclose all possibly relevant information gathered while fulfilling its regulatory obligations would unduly impede its work from administrative viewpoint. Stinchcombe is distinguishable because the ∆ here has economic regulatory functions and has no power to affect human rights in a way akin to criminal proceedings. 3.1.3. Delay • Is a practical consideration due to limited resources of administrative agencies, delay pending the outcome of criminal proceedings, and increased agency acceptance of complaints arising from actions taken years ago. Consideration due to s. 11 of the Charter (guarantee of a trial “within a reasonable time”) which indirectly affects interpretation of 25 s. 7 “principles of fundamental justice” and C/L in this area. Also effect of Blencoe, where SCC accepted that delay can affect ability of person to respond adequately to allegations and that delay can lead to abuse of process (difficult claim to make where seeking a stay but easier if seeking order of expedition). Kodellas v. Saskatchewan (HRC) (1989), 60 DLR (4th) 143 (Sask. CA) (at 363) f.: ∏ was accused of harassing two female employees in his restaurant in 1982-3. The ∆ took well over 3 years to begin proceedings against ∏. i.: What factors are to be considered when determining if there has been an “unreasonable delay” in context of s. 7 of the Charter, thus justifying remedial measures? r.: Must consider and weigh the following factors to determine if there has been an “unreasonable delay” in context of s. 7 of the Charter: (1) whether delay is prima facie unreasonable, having regard of time requirements inherent to such proceedings; (2) reason/responsibility for delay – conduct of complainants, Commission, alleged discriminator; inadequacy of resources; (3) prejudice caused to alleged discriminator by delay (adapted from SCC decision in Rahey). a.: For ∏. There was unreasonable delay. Bayda CJS.: Application to this case: (1) time delay was well over the inherent time requirements (3 yr 11 mo. and 3 yr 2 mo.) therefore delay is prima facie unreasonable; (2) ∆ was entirely responsible for delay; (3) alleged discriminator complains that it is now near impossible to track down witnesses since those in the restaurant business move around constantly and that those who have been located vaguely remember what occurred at the time of the alleged incidents. Therefore there has been some prejudice due to the delay. 3.2. Oral Hearings • The claim for an oral hearing is highest when credibility is an issue in the proceedings (Wilson in Singh), and also when BOR or Charter is invoked (Beetz in Singh; Suresh). However in sexual assault/harassment cases, an oral hearing may not be conducted (for reasons of difficulty in facing one’s aggressor, etc.). Masters v. Ontario (1994), 18 OR (3d) 551 (Div. Ct.) (at 368) f.: ∏ was agent general in NY. He was accused of sexual harassment. An investigative report found , in effect, that ∏ sexually harassed 7 women. ∏ resigned on basis of financial settlement rather than agreeing to be reassigned. ∏ then applied for review of investigator’s report alleging breaches of natural justice which included: 45 witnesses interviewed without ∏ or counsel present; ∏ refused access to list of questions asked, copies of notes, transcripts or tapes of interviews; while ∏ was allowed to interview witnesses himself, few agreed to meet with him. i.: Was Π not afforded procedural fairness when he was refused the investigator’s report, refused access to questions asked, copies of notes, transcripts or tapes of interviews of witnesses? r.: In deciding whether disclosure of findings is required in investigation of accusations of sexual harassment at behest of Premier, must look at nature of ∏ employment, the nature of the decision 26 (broad policy or individualistic), nature of investigatory procedures relied on (e.g. directives), ∏ ability to make representations. a.: For ∆. ∏ received sufficient procedural safeguards. Adams J.: Π was an office holder at pleasure (Premier was not acting pursuant to statute but was exercising prerogative in his consideration of revoking an appointment) and asking for disclosure of investigative documents (two hits against disclosure). On other hand, neither decision-making nor investigation focused on “broad grounds of public policy”, but were rather individualistic (did ∏ sexually harass women and what to do about it). Premier decided to apply investigatory procedures outlined in Workplace Discrimination and Harassment Prevention Directive – content of duty of fairness should be derived from the Directive. There was no requirement that government use coercive power to force witnesses to subject themselves to ∏’s counsel’s questioning. No hearing was required by statute or “otherwise by law”. ∏ had right to respond to report. Disclosure of substance of accusations was sufficient. Therefore allegations against ∏ were not adjudicated. Investigatory process deployed to inquire into his alleged conduct did not afford ∏ all safeguards of a trial. Khan v. University of Ottawa (1997), 35 OR (3d) 535 (CA) (at 372) f.: ∏ (A) appealed decision of Div. Ct. dismissing judicial review application of Senate and Faculty of Law decisions to give her a failing grade. 3 exam booklets were evaluated and existence of 4th booklet, which was not evaluated, was issue before the university committees. ∏ received no notice of the Faculty of Law Exam Committee meeting and was not given an opportunity to appear before it. ∏ appealed Law Faculty’s decision dismissing her appeal, in writing, to Senate Committee but did not appear before it. i.: What procedures were required under duty of fairness in this case? r.: A university law student, whose credibility is in issue concerning whether she wrote a 4th exam booklet, is entitled to an oral hearing. a.: For ∏. Laskin JA.: A university student threatened with loss of academic year by a failing grade is entitled to high standard of justice due to the serious effect of a failed year, both academically and professionally, on the student. It was conceded that if ∏ 4th booklet was not graded, this would amount to a “significant error or injustice”, justifying a review of the grade ∏ received under paras. 12.03(a) and (b) of the Faculty of Law Regulations. The question before the committee was therefore whether they believed ∏ had written the 4th booklet (since no other evidence was present). Because ∏ appeal turned on her credibility and because of the serious consequences to her of an adverse finding, the duty of fairness required an oral hearing in this case (Singh), notwithstanding that ∏ was not charged with any misconduct. Finlayson JA. (dissent): This case is distinguishable from Singh because the gravity of the rights in issue are less and no Charter rights are in issue. The ∏ has not been refused entrance into the legal profession (Kane). ∏ attempt to establish fact that she wrote a 4th booklet would not necessarily be determinative on whether the issue before the Committee, that being whether the grading of an exam had been subject to error or injustice, would resolve in her favour. Committee was aware of the poor quality of work in first 3 booklets and “more of the same wouldn’t have been beneficial.” Therefore her credibility is not determinative. As was practice of committee, ∏ 27 was given opportunity to provide full and detailed written account of reasons why she deserved relief. ∏ did not show that information she provided in written brief was not complete. 3.3. Disclosure and Official Notice “Disclosure” is the disclosure to parties of information that the agency has about the decision to be made. Not just a question of how much and when information is disclosed. Access to Information Statutes; Crown/Executive Privilege; C/L Evidential Privileges 3.3.1. Access to Agency Information Re Napoli and Workers’ Compensation Board (1981), 126 DLR (3d) 179 (BCCA) (at 411) f.: Napoli was injured and was advised that his compensable disability was 5% of total disability. He was awarded a pension of $33.56/mo. which was increased to $50/mo. Napoli appealed to board of review. Prior to the hearing his counsel was provided with a 4-page summary of his file. The board heard the appeal and recommended to the WCB that Napoli’s appeal be denied. Napoli received leave to appeal the board decision to the commissioners of the WCB. Bouck J held that rules of natural justice applied to proceedings before boards of review and the commissioners and that files should be disclosed to workers. The summaries of the files did not satisfy these requirements. He found s. 10 of BC Evidence Act gave a worker the right of disclosure, arguing WCB was “adverse in interest” to the worker in proceedings. WCB appealed. i.: Was the Judge right in finding that the boards of review and the commissioners of the WCB breached the rules of natural justice in failing to give Napoli a full opportunity to peruse his file when he appealed from the original decision of a disability awards officer or commissioner? r.: Rules of natural justice apply to proceedings before the WCB and Commissioners and require full disclosure of the contents of a worker’s file (medical files included). a.: For Napoli. Appeal dismissed. Nemetz CJBC.: A "high standard of justice" was required because of the large impact these decisions had on the future lives of the injured workers. The rules of natural justice clearly included a duty of disclosure. Summaries of the files were not adequate compliance with this duty because they afforded no opportunity to challenge the statements and opinions contained in them. The argument that the reports to the Board by experts would not be frank if they were to be disclosed was rejected. This reasoning did not conform to the tenets of natural justice and ignored the contrary view that the reports would be prepared with greater care and diligence. 3.3.2. Identity of Sources of Information Gallant v. Canada (Deputy Commissioner, Correctional Service Canada) (1989), 36 Admin. LR 261 (FCA) (at 416) f.: ∏ was a prisoner at Kent Institution (maximum security). He was advised that he was suspected in involvement in extortion of money and personal property from inmates and from members of the community, threats of violence to other persons and the importation of drugs. These accusations were based on information received, but more detail was not provided in the notice on the ground that it would jeopardize the safety of the victims of ∏ actions. Warden intended to seek ∏ transfer to Saskatchewan Penitentiary (high maximum security). ∏ applied to FCTD for order quash decision of ∆ to transfer him, and succeeded. Certiorari was granted on 28 ground that notice given to prisoner was insufficient to satisfy requirements of procedural fairness, in that it was too vague to enable ∏ to respond to allegations. ∆ appealed. i.: Does procedural fairness (ability to respond) require the disclosure of sources of information in a notice given to a prisoner outlining allegations of wrongdoing (that would result in his/her transfer to another penitentiary of higher security) when such disclosure would endanger the informants? r.: In circumstances where application of rules of procedural fairness would endanger the lives of informants, the obligation of those rules to give more detailed notice do not apply. It is sufficient to provide the ‘gist’ (or outline) of the accusations against an inmate. a.: For ∆. Appeal allowed. Pratte JA.: By not providing the source of allegations against a prisoner that will be considered in an order to transfer that prisoner, the prisoner’s opportunity to answer the allegation is hindered, which violates the principles of fundamental justice under s. 7 of the Charter. However, the wide discretion to transfer prisoners granted by the Penitentiary Act is justified under s. 1. Marceau JA.: Must give consideration of nature of Charter liberty interest at stake in this case. If liberty interest is not as ‘serious’, then stringency of Charter requirements on administrators in terms of demands of fundamental judgment diminish. A prisoner transfer is not a ‘serious’ liberty interest, therefore the limited information provided to Π was sufficient. Desjardins JA. (dissent): there may be a situation where the danger of disclosure to an inmate is so great that C/L and Charter fairness cannot be upheld. If this occurs, there should be some independent corroboration of the evidence/facts provided by the informants, which can be presented to a court in camera, to uphold the limits on disclosure. Gough v. Canada (National Parole Board) (1990), 45 Admin. LR 304 (FC TD) (at 424) f.: ∏ was on parole (least restrictive form) for 5 ½ hears. Complaints were made to Correctional Services Office alleging sexual assault and other forms of coercion as well as drug use against ∏. ∆ suspended and ultimately revoked his parole due to these allegations. ∆ relied on ss. 17(5) of the Parole Regulations (allows non-disclosure in parole hearing where disclosure would threaten safety of individuals or prejudice an on-going investigation) to refuse disclosure of information at ∏ post-suspension hearing, and never revealed the details of dates, places of alleged incidents and the names of alleged victims. ∏ applied to have revocation quashed for violating s. 7 of Charter. ∆ responded that ∏ had adequate information to meet allegations because he already knew of the incidents. Application allowed to extent that ∆ was given option of quashing order or requiring submission of relevant information to court for in camera hearing where ∏ counsel would be given opportunity to argue that non-disclosure was not justified. ∆ chose latter and appealed order to FCA. FCA allowed appeal on basis that ss. 24(1) of Charter did not extend to authorize court to compel production of information for purposes of such an in camera hearing. Matter referred back to FCTD for resumption of the hearing. i.: Was s. 7 breached by the Board's non-disclosure pursuant to Parole Regulations, subsection 17(5), and if so, whether ss. 17(5) was justified under the circumstances or s. 1. 29 r.: A parolee on the least restrictive form of parole is entitled, under s. 7 principles of fundamental justice, to disclosure of information relied upon in a decision to revoke his/her parole (not simply the ‘gist’ of the allegations), unless there is ample evidence justifying the restriction under s. 1 that disclosure would reveal the identity of the informers or that there was a probability that their safety would be threatened, or that the parole system would be undermined. The receipt of information in confidence is no justification for restricting fundamental justice. a.: For ∏. Appeal denied. Reed J.: The principles of fundamental justice entitle an individual to know the case against him in a decision-making process that leads to a loss of liberty. The ∏ was entitled to sufficient detail respecting the allegations against him to enable him to respond intelligently. The guarantees provided by s. 7 of Charter vary with the circumstances. ∏ liberty was conditional, and subject to revocation without all the procedural guarantees which pertain in a court of law; however his position was as close to that of an individual who has unconditional liberty as it could be within the correctional system. ∆ carries burden of justifying Regulation ss. 17(5) limits “prescribed by law” under s. 1 of Charter. There was no evidence of an ongoing police investigation which would be prejudiced by the disclosure of the information. There was no compelling evidence that disclosure would reveal the identity of the informers or that their safety was threatened or that the parole system would be undermined. 3.3.3. Commercially Sensitive Information Magnasonic Canada v. Anti-Dumping Tribunal, [1972] FC 1239 (CA) (at 434) a.: Jackett CJ.: s. 29 of Anti-Dumping Act requires that when information of a confidential character is tendered at a hearing, it is done so in camera. Other further steps to protect the confidentiality of the information depends on the circumstances. These could include exclusion of all competitors/rivals while evidence is taken, and then provide these parties with a report on evidence taken with reference to confidential evidence under s. 28. • Now have Canadian International Trade Tribunal Act, RSC 1985, c. 47 (4th Supp.) (at 435) which has more detailed provisions on disclosure. E.g. disclosure to an external expert employed by tribunal for an assessment. 3.3.4. Staff Studies CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review Board), [1994] 3 FC 425 (CA) (at 358) • tribunals exercising economic regulatory function in public interest that do not affect human rights in a way akin to criminal proceedings are entitled to benefit of confidential communication with staff. Toshiba Corporation v. Anti-Dumping Tribunal (1984), 8 Admin. LR 173 (FCA) (at 440) and Trans-Quebec & Maritimes Pipeline Inc. v. National Energy Board (1984), 8 Admin. LR 177 (FCA) (at 441) • Both cases dismissed applications for disclosure of staff papers prepared for the board/tribunal prior to hearing. However, if information in staff papers (made prior to a hearing) is available to decision makers and is not brought forward in another form at tribunal, principles of procedural fairness are breached. 30 Re League for Human Rights of B’Nai Brith and Commission of Inquiry on War Criminals (1986), 28 DLR (4th) 264 (FCA) • Allowed disclosure of a report of a ‘working group’ of specialists established by the Commission, on the basis that such a report would clearly be relied upon and given significant weight by the Commission in determining whether there were legal means to bring suspected war criminals to justice in Canada. 3.3.5. Official Notice “Official notice” is the extent and manner in which an agency may, in making its decisions, use material that is not introduced in evidence. SPPA (s. 16) – incorporates into rules of tribunal proceedings (a) the rules of judicial notice; (b) allowance of tribunal to take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge [expectation of panel members to apply ‘wisdom’ of their expertise]. When is s. 16 (or its C/L equivalent) applicable? Township of Innisfil v. Township of Vespra (at 449) The OMB, in its decision, refers to evidence that came out in a previous hearing involving different parties. OMB said this is justified as application of their general expertise under s. 16 of SPPA. • Ont. CA ruled that the notice taken was insubstantial. • One Ont. Div. Ct. judge said that notice can be taken but OMB is obliged, by C/L (particularly if constituency is diverse and likely do not have specialized knowledge), in exercising such notice under s. 16 of SPPA to make parties aware that it would take such notice and allow them to respond. (Mullan likes this). • Immigration Act (at 451) s. 68(5) allows Refugee Division to take notice of facts, information or opinion, other than facts that may be judicially noticed, in any proceedings as long as it notifies the Minister and the person subject to the proceedings. 4. Institutional Decisions 4.1. Deciding Without Hearing Some administrative agencies use discussion of cases by a full Board after a hearing has been used as a means to maintain consistency. However, must determine whether, and if so, to what extent, the duty of fairness precludes the members of an agency panel who heard a case from discussing it with other members of the agency after the hearing has ended, but before they have made their decision. International Woodworkers of America, Local 2-69 v. Consolidated-Bathurst Packaging Ltd., [1990] 1 SCR 282 (at 498) f.: A three-member panel of Ont. Labour Relations Board decided that the appellant (∆) had failed to bargain in good faith by not disclosing during negotiations for a collective agreement that it planned to close a plant. In the course of deliberating over this decision, a meeting of the full Board was held to discuss a draft of the reasons. No express statutory authority exists for this practice. The meeting was conducted in accordance with the Board's longstanding and usual 31 practice. This practice required that discussion be limited to the policy implications of a draft decision, that the facts be accepted as contained in the decision, that no vote or consensus be taken, that no minutes be kept, and that no attendance be recorded. ∆ applied for judicial review of the Board's decision on the ground that the rules of natural justice had been breached. The application was granted by the Div. Ct. but was disallowed on appeal. ∆ appealed to SCC. i.: Whether the two rules of natural justice had been breached: (a) that the adjudicator be independent and unbiased, that he who decides must hear, and (b) the audi alteram partem rule, the right to know the case to be met. r.: The rules of natural justice: (a) independence/non-bias of adjudicator – is not tainted if adjudicator who heard evidence speaks with others who did not hear evidence (non-hearers); such an occurrence does not amount to ‘participation’ of the non-hearers in the decision, and any influence non-hearers have on the adjudicator does not violate independence nor bias the adjudicator as long as the discussions do not induce him/her to decide against his/her own conscience or opinion. (b) audi alteram partem rule – is not violated if discussions with non- hearers focus on policy or legal issues surrounding the case; but is violated if discussions focus on factual issues surrounding the case, and any new evidence or grounds raised in discussions with non-hearers are (i) not reported to the parties and (ii) are not given a chance to respond. a.: For ∏. Appeal dismissed. Gonthier J.: Independent and unbiased adjudicator – Discussion with a person who has not heard the evidence does not necessarily vitiate the resulting decision because this discussion might "influence" the decision maker. The criteria for independence are not absence of influence but rather the freedom to decide according to one's own conscience and opinions. The holding of full board meetings does not impinge on the ability of panel members to decide according to their opinions so as to give rise to a reasonable apprehension of bias or lack of independence. Right to know the case to be met – A distinction must be drawn between discussions on factual matters and discussions on legal or policy issues. On factual matters the parties must be given a fair opportunity for correcting or contradicting any relevant statement prejudicial to their view. The purpose of the policy discussions is not to determine which of the parties will eventually win the case but rather to outline the various legal standards which may be adopted by the Board and discuss their relative value. Since these issues involve the consideration of statutes, past decisions and perceived social needs, the impact of a policy decision by the Board is, to a certain extent, independent from the immediate interests of the parties even though it has an effect on the outcome of the complaint. In this case, the policy decided upon was the very subject of the hearing when the parties had full opportunity to deal with the matter and present diverging proposals, which they did. Sopinka J. (dissent): The content of the rules of natural justice now determined by reference to (i) the circumstances of the case, (ii) the governing statutory provisions and (iii) the nature of the matters to be determined. It is no longer appropriate to conclude that failure to disclose policy to be applied by a tribunal is not a denial of natural justice without examining all the circumstances under which the tribunal operates. The full Board hearing deprived the appellant of a full opportunity to present evidence and submissions and accordingly constituted a denial of natural justice. It could not be determined with certainty from the record that a policy which was developed at the full Board hearing and was not disclosed to the parties was a factor in the 32 decision. That this might very well have happened, however, was fatal to the Board's decision. The goal of uniformity in the decisions of individual boards, while laudable, cannot be achieved at the expense of the rules of natural justice. The legislature, if it so chooses, can authorize the full Board procedure. Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 SCR 952 (at 523) f.: ∏ (R) was denied reimbursement for cost of medical supplies and appealed to ∆ (A). The appeal was heard by two commissioners and the parties argued in writing. After the hearing, a draft decision favourable to the ∏ was signed by the commissioners and sent to the ∆ legal counsel for verification and consultation in accordance with ∆ established practice. As the legal counsel was on vacation, it was the president of the ∆ who reviewed the draft. He then sent the two commissioners a memo in which he explained his contrary position. After receipt of the memo a commissioner requested the point of law raised at the hearing be submitted to the "consensus table" machinery of the ∆. At that meeting, a majority of members expressed their disagreement with the draft holding for the ∏ and, shortly afterwards, one of the commissioners changed her mind and wrote an opinion unfavourable to the ∏. The commissioners were then divided on the question and the matter was submitted to the president of the ∆. The president held against ∏ and appeal was dismissed. ∏ challenged the ∆ decision on ground of breach of natural justice and asked that the "first draft decision" be declared the ∆ true decision. The Superior Court held that the ∆ decision contravened the rules of natural justice and allowed the action, but it refused to regard the first draft of the decision as the ∆ true decision. The CA upheld the trial judgment. ∆ appealed. i.: Does the consultation machinery of the ∆ violate the principles of natural justice? Did they create a reasonable apprehension of bias? r.: A consultation process by plenary meeting designed to promote adjudicative coherence may be acceptable for an administrative tribunal, however it must not violate the rules of natural justice – it must not impede the ability or freedom of the members of the tribunal to decide according to their consciences and opinions, or create an appearance of bias in the minds of litigants. a.: For ∏. ∆ appeal dismissed. Gonthier J.: (1) Independent and Unbiased Decision-maker (was not met) – The "consensus tables" held by the ∆, although optional in theory, are in practice compulsory when the legal counsel determines that the proposed decision is contrary to previous decisions (distinguishing feature from Consolidated-Bathurst). President, not only commissioners, can call a consensus table meeting. Compulsory consultation creates an appearance of a lack of independence and constraint on decision makers. Plenary meetings of the ∆ are held so as to arrive at a consensus: the members present vote by a show of hands, attendance is taken and minutes are kept. These mechanisms may exert undue pressure on decision makers and are not to be recommended. The fact that the president of the ∆ expressed his opinion to the commissioners responsible for making the decision, inviting them to reconsider it, and then became a decision maker is not consistent with rules of natural justice as it is likely to create a reasonable apprehension of bias in an informed observer. 33 (2) Right to know the case to be met (was satisfied) – The question on which the ∆ had to rule was a point of law. There is nothing to indicate that new arguments of law were raised at the "consensus table" or that the president considered new points at the decision-making stage. Commentary by Mullan on Consolidated-Bathurst and Tremblay (at 535) • Gonthier J.’s distinguishing of the facts in Consolidated-Bathurst from Tremblay (determining whether there has been illegitimate compulsion as opposed to permissible pressure) seem related solely to form rather than substance, since in reality the Labour Relations Board in Consolidated-Bathurst could have been just as effective as compelling members to reach certain decisions. • Very difficult to police the rules of mass adjudication tribunals. It will only be matters of happenstance when a party will know whether there has been a consultation in a particular case (in Consolidated-Bathurst, the employer’s lawyer was at the board offices eavesdropping.) Then there is difficulty in obtaining evidence in how the consultation actually proceeded. • Why not have compulsion on issues of law and policy? This question is not addressed. Such compulsion in these limited contexts would promote consistency, especially in high volume tribunals. Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 SCR 221 (at 539) f.: A predecessor to the Union failed to list ∏ as an employer in certification proceedings in 1972. The Union filed a grievance alleging that ∏ had breached the collective agreement. ∏argued that it was not subject to the collective agreement because the predecessor to the Union had abandoned its bargaining rights when it failed to include ∏’s name as an employer in the earlier proceedings. A three-member panel of the Board heard the grievance. A first draft of the panel's decision would have dismissed the grievance. However, after a full Board meeting discussed the draft, the panel upheld the grievance. Without asking for reconsideration of the decision, ∏ applied for judicial review, alleging that the change between the draft and the final decision was of a factual nature as opposed to a legal or policy change. ∏ alleged that there was a breach of the rules of natural justice and the rules governing institutional consultations. ∏ was not permitted to examine members of the Board. ∏’s application was dismissed, and the Ont. CA affirmed the decision. ∏ appealed. i.: Did the full Board improperly interfere with the decision of the three-member panel? r.: A change in reasons for a decision by a panel is not evidence enough that full Board consultations involved questions of fact and not questions of law or policy. Deliberative secrecy is essential to safeguard the independence of administrative adjudicators; it favours administrative consistency by granting protection to consultative processes between adjudicators and members who have not heard the case (within rules set out in Consolidated-Bathurst). a.: For ∆. ∏ appeal dismissed. Lebel J.: A change in reasons for a decision is not evidence that the full Board discussed questions of fact and not questions of law or policy (which, on its face, was shown in evidence). Without further evidence, must presume administrative regularity. ∏ cannot examine panel members because such a practice would cause a chilling effect on institutional consultations, and the removal of a means of achieving consistency in decisions. 34 Binnie J. (dissent): A close review of draft and final decision indicates that evidence was re- weighed (question of fact) at full Board meeting. Strength of evidence necessary to displace presumption of administrative regularity depends on nature of the case. Given the difficulty in this case for ∏ to gather evidence, ∏ has discharged evidentiary onus to displace the presumption of regularity. Payne v. Ontario (HRC) (2000), 192 DLR (4th) 315 (Ont. CA) (at 542) f.: ∏ (A) was an African-Canadian woman who, during organized opposition to a theatrical production, made an anti-Semitic remark on TV. She apologized. Her employer demoted her and subsequently terminated her employment. She filed a complaint with the ∆ (R). After investigations, the ∆ initially decided to refer the complaint to a board of inquiry, but then subsequently decided not to refer the complaint without given reasons to ∏. ∏ applied for judicial review. Her lawyer served a notice of examination on the ∆ requiring the Registrar to answer questions and produce all documents related to this case, including the contents of all files and communications between ∆ staff and its members who considered ∏’s complaint. ∏ filed affidavit of former ∆ member named Wharton, who was present at initial meeting concerning ∏’s complaint. He said that the ∆ considered strategic factors (facts) to decide whether to refer a complaint to a board of inquiry (fear of appearing to support anti-Semitic remark) and these factors had nothing to do with the merits of the complaint. ∆ applied to strike from the record ∏’s affidavit material. The court struck out extensive portions of ∏’s affidavit. Court allowed ∏ to examine the Registrar only about the initial meeting and to obtain documents provided at that meeting. ∏ appealed court order striking out portions of affidavit and limiting examination. i.: Is ∏ entitled to full disclosure and production of all facts, arguments and consideration that were presented to the ∆ when it considered her case? r.: In HR context, a complainant is entitled to a complete record of the HRC’s proceedings. In claiming a right to examination in judicial review proceedings of a HRC decision, a complainant need not prove any facts as a precondition, but must limit the scope of examination to a ground justifying judicial review. The examination would not be allowed if it was used for an improper purpose or if the application for judicial review was an abuse of process. If a HRC member who was privy to the decision-making process was examined, the right to conduct the examination had to be balanced against the principle of deliberative secrecy. Complainant must prove that a relevant legal right may have been infringed; examinations based on conjecture or mere speculation are not allowed. A HRC that deliberates in the presence of non-members (staff), rather than in private, are more exposed to judicial review. a.: For ∏. Appeal allowed in part. The order that struck out portions of ∏ affidavit was upheld. Sharpe JA.: Only legitimate factor to be considered by ∆ in exercise of its discretion is whether there is any merit in the complaint (cannot consider cost or “strategic factors”). If ∆ proceeds on different recommendation (than in Report) or base its decision on factors undisclosed to ∏, there would be no opportunity to respond and fairness would be infringed. ∏ has statutory right to reasons for ∆ decision (ground for review). 3 purposes for deliberative secrecy are: (1) practical concern that if no limits imposed, tribunal members would be exposed to unduly burdensome examinations; (2) need for finality and need for decisions to rest on reasons given; (3) need to protect process of debate, discussion, compromise inherent in collegial decision 35 making. Deliberative secrecy is not absolute and must yield to certain overarching principles, such as an allegation to the right to natural justice (it is not required to produce evidence to justify examination of decision maker). The ∆ chose to conduct its deliberations with the assistance of non-∆ members (staff). Its deliberations were therefore more exposed to review than if they were conducted privately. There was evidence that the ∆ did not comply with the principles of fairness. The ∆ record appeared to be incomplete. Abella JA. (dissent): Interaction between staff and ∆ commissioners during deliberations does not automatically pollute the final decision (Consolidated-Bathurst). There is no evidence that any staff made inappropriate comments, made comments not based on information contained in Reports, or made comments that unduly influenced or interfered with ∆ ability to make up it’s own mind based on relevant and appropriate factors. 5. Bias and Lack of Independence 5.1. Reasonable Apprehension of Bias Test for bias – what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. (Committee for Justice and Liberty at 582) Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 (at 57) f.: Π is Jamaican citizen living in Canada illegally since 1981. Has 4 Canadian children. In 1992 was diagnosed with schizophrenia but has shown improvement. Π ordered deported in December 1992 for working illegally and overstaying visitor’s visa. In 1993 Π applied for exemption from s. 9 requirement to apply for permanent residence outside Canada on humanitarian and compassionate grounds (h&c) under s. 114(2) of Immigration Act (IA). Had assistance from lawyer in filing application – contains letters from lawyer, doctor, social worker indicating that Π was making progress and that deportation would likely result in relapse, and that both she and her children would likely suffer emotional hardship if deported. 18 April 94 Officer Caden rejected request without reasons. Notes taken by Officer Lorenz provided upon request by Π (used in decision by Caden – at 59). 27 May 94 Π served deportation order for June 17. Order stayed pending appeal. a.: L’Heureux-Dube J.: Applying the 5 factors for determining the content of procedural fairness to bias, a reasonable apprehension of bias on the part of anyone who played a significant role in the actual decision would lead to a quashing of the relevant decision. In this case, a reasonable apprehension of bias in the reasons is present. Rather than looking at the evidence, Lorenz drew conclusions on the fact that Π was a single mother of many children and was psychologically ill (and therefore would be a burden to Canada), ignoring the evidence of Π doctor, who suggested that with treatment Π would be a productive member of society. 5.1.1 Pecuniary Bias Energy Probe v. Canada (Atomic Energy Control Board) (1984), 15 DLR (4th) 48 FCA; aff’g (1984) 8 DLR (4th) 735 (FCTD) (at 575) f.: ∆ proposed to renew operating license for nuclear generating station. ∏ objected to participation of Olsen on ∆ board, since he was president of a company that supplied cables to nuclear power plants and was a member of organizations that supported use of nuclear power. ∆ refused this objection and renewed license. ∏ appealed. 36 i.: Does a possible pecuniary interest in the outcome of a board decision raise a reasonable apprehension of bias that should automatically disqualify a participating member of the board? r.: A claim of bias can be advanced at administrative tribunals, but the test for bias will be more flexible in the administrative tribunal setting. a.: For ∆. ∏ appeal dismissed. Reed J.: The possibility that Olsen’s company would or would not get future K based on the outcome of the ∆ board’s decision was too remote to raise an apprehension of bias, particularly given the fact that cable K are awarded on a competitive basis. 5.1.2. Acting Outside Statutory Authority Brosseau v. Alberta (Securities Commission), [1989] 1 SCR 301 (at 593) f.: Notice of hearing issued against ∏ alleging that false/misleading statements were contained in company (that ∏ worked for) prospectus filed with ∆. ∏ alleged chair of ∆ was disqualified from sitting in adjudicative capacity because, at request of senior civil servant, chair had instructed commission staff to review their files and information in possession of police about the company. Chair also received the resulting report of commission staff; therefore ∏ argued there was a reasonable apprehension of bias because chair would be acting as both investigator and adjudicator. i.: Did chair of ∆, as acting as both investigator and adjudicator create a reasonable apprehension of bias? r.: The fact that a chairman acts as both an investigator and adjudicator for a securities commission is not in itself sufficient to give rise to a reasonable apprehension of bias. He must act outside statutory authority. In the case of securities commissions given broad investigative and adjudicative powers by statute, the chairman, as CEO, has implied authority to (1) order an informal investigation not expressly dealt with by statute; (2) receive information from an ADM or the RCMP, to pass this to the Director of the Commission, to require the Director to verify allegations/complaints, and receive a report of any review made by Director. In other words, statute authorized an investigative and adjudicative role for chairman. Absent a constitutional objection, statutory empowered situations that would normally give rise to bias are allowable. a.: For ∆. ∏ appeal dismissed. L’Heureux-Dube J.: One exception to “nemo judex in cause sua debet esse” (no one ought to be a judge in his own case) is where the overlap of functions is authorized by statute. However, because of the broad powers conferred, ∆ has implied authority to conduct a more informal internal review of the documents it has on file and to keep itself informed of the course of an RCMP investigation. To hold otherwise would make it mandatory for ∆ to resort to s. 28 investigation (full-out investigation) for mere administrative purposes, which would paralyze ∆. Other consideration includes fact that ∆ is specialized, integrated body that, by its nature (being the only securities commission), it will have repeated dealings, be it investigative or adjudicative, with a given party. ∆ also has protective role, which gives special character to such commissions that must be recognized when assessing their functions. 37 E.A. Manning Ltd. v. Ontario Securities Commission (1995), 125 DLR (4th) 305 (Ont. CA) (at 602), aff’g. (1994), 18 OR (3d) 97 (Div. Ct.). f.: ∆ released Policy 1.10 indicating it considered actions of 10 securities dealers/salespersons in dealing penny stocks to amount to unfair sales practices. ∆ issued two notices of hearing against ∏ (and its principals and various employees), on the same issues as that outlined in Policy 1.10, to consider whether ∏ registrations under Securities Act should be cancelled. In the interim, Ont. Ct. of Justice (affirmed by Ont. CA) declared policy statement was without statutory authority and in so doing stated that the ∆ had prejudged by that policy statement that certain dealers (including ∏) had been guilty of various abuses (Ainsley Financial Corp. v. Ontario Securities Commission). ∆ appealed decision, and issued press release reiterating concerns addressed in policy statement. Chair of ∆ also gave press interview to same effect. ∏ applied for a prohibition order to prevent ∆ from proceeding with the two hearings against ∏. Div. Ct. held that Commissioners appointed before the fall of 1993 and the Chair of the ∆ should be disqualified from sitting on the hearings against ∏ (but members appointed after that date can sit) since Policy 1.10 amounts to pre-judgment of ∏, which is beyond ∆ statutory power. ∏ appealed. i.: Whether the new Commissioners should be disqualified: (1) by the doctrine of corporate taint; (2) by reason of the media comments of the Chair; or (3) by reason of the ∆ defence of the Ainsley action. r.: Given that securities commissions are expert tribunals, and that members may have repeated dealings with the same parties in carrying out their statutory duties, it must be presumed, in the absence of any evidence to the contrary, that members will act fairly and impartially in discharging their adjudicative responsibilities. Therefore there is not authority for proposition of bias by corporate taint. If statements by a regulator relate to the very matters that he or she is considering, that, in itself, is not a basis for concluding that the regulator has prejudged the matter. Even if it could be said that the statements of the Chair exhibited some bias against the ∏, that, in itself, would not disqualify other Commissioners from conducting the hearings. a.: For ∆. ∏ appeal dismissed. Cubin CJO.: The ∆ is the investigator, the prosecutor, and the judge. But for statutory authority, the overlapping of these functions would be contrary to the principle of fairness. However, where authorized by statute, the overlapping of these functions in itself does not give rise to a reasonable apprehension of bias. New Commissioners can not be disqualified by reason of the comments of the Chair. 5.1.3. Institutional Bias Due to Internal Operational Choices – Court Intervention on C/L basis 2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool), [1996] 3 SCR 919 (at 612) f.: ∆ revoked ∏ liquor permits for violation of statute. ∏ sought declaration that various provisions of statute were invalid in terms of s. 23 of Quebec Charter, which require a tribunal, acting in a judicial or quasi-judicial fashion, be both “independent and impartial.” ∏ successful at trial and on appeal. ∆ appealed to SCC. 38 i.: Did the operational structure of the ∆ (specifically the multiple role of the ∆ lawyers) give rise to a reasonable apprehension of bias, contrary to s. 23 of the Quebec Charter, which requires judicial or quasi-judicial tribunals to be both “independent and impartial”? r.: Having multiple functions in a single administrative agency is not necessarily problematic. Having possibility of lawyers functioning as prosecutor and adjudicator raises a reasonable apprehension of bias. Similarly, having the possibility that a particular director could, following an investigation, decide to hold a hearing and then participate in the adjudication process would cause an informed person to have a reasonable apprehension of bias. a.: ∏ awarded writ of evocation quashing revocation of its license. Gonthier J.: (1) Although flexibility must be shown toward administrative tribunals when it comes to impartiality, a detailed review of the ∆ structure and multiple functions raises a reasonable apprehension of bias on an institutional level. Although the statute does not define the duties of jurists, the ∆ annual report and the description of their jobs show that they review files in order to advise the ∆ on the action to be taken, prepare files, draft notices of summons, present arguments to the directors and draft opinions. This leaves open the possibility of the same jurist performing these various functions in the same matter. The functions of prosecutor and adjudicator cannot be exercised together in this manner. Such a lack of separation of functions in a lawyer raises a reasonable apprehension of bias. (2) While the fact that the ∆, as an institution, participates in the process of investigation, summoning and adjudication is not in itself problematic, the possibility that a director could, following the investigation, decide to hold a hearing and could then participate in the adjudication process would cause an informed person to have a reasonable apprehension of bias. c.: Technically, the appeal should be allowed. The problem of institutional bias was not a statutory one but one caused by the way the ∆ operated; this could be addressed by internal changes as directed by the court. Therefore the claim that provisions of statute were invalid in terms of s. 23 of Quebec Charter are dismissed. 5.1.4. Institutional Bias Due to Statute – Court Intervention on a Constitutional Basis MacBain v. Canada (Human Rights Commission) (1985), 22 DLR (4th) 119 (FCA) (at 619) f.: If a complaint was made to ∆, it could appoint an official to investigate and report. ∆ could adopt report if it was satisfied complaint has been “substantiated” (s. 26(3) of the CHRA). Any time after complaint filed, ∆ could appoint a tribunal from a panel of prospective members “established and maintained by GIC” (s. 39). Tribunal was to hold hearing and if it finds complaint was “substantiated” it had power to make remedial orders. Potapczyk filed complaint that ∏ had discriminated against her on basis of sex during her employment. ∆ appointed staff member to investigate and after her report, ∆ decided complaint was substantiated and appointed tribunal. Hearing proceeded and complaint found to be substantiated. ∏ sought declaration that legislation violated Charter and BOR because arrangements under s. 39 (∆ investigates complaint, finds “substantiation” of complaint, and then selects judges to hear the case in which ∆ will argue that the complaint was “substantiated”) created an apprehension of bias. ∏ failed at trial but appealed. i.: Does the statute based requirement of the ∆ to “substantiate” the complaint before striking a tribunal (which will also “substantiate” the complaint) give rise to an apprehension of bias under 39 s. 2(e) of the BOR? Does the statute derived power of the ∆ to appoint the adjudicators (tribunal) in a case where it will be prosecutor give rise to an apprehension of bias under s. 2(e) of the BOR? r.: Requiring the HR commission, by statute, to “prove” a complaint before selecting the members of a tribunal who will consider whether the complaint was “proven” raises an apprehension of bias. Empowering a commission, by statute, to select the members of a decision- making tribunal which will hear a case in which the commission itself will be the prosecutor raises an apprehension of bias; both are contrary to s. 2(e) of the BOR (“determination” of “obligations” within “principles of fundamental justice”). a.: For ∏. Appeal allowed. Heald J.: S. 39 arrangements created a reasonable apprehension of bias in violation of s. 2(e) of the BOR (principles of fundamental justice). 5.1.5. Attitudinal Bias Paine v. University of Toronto, (1981), 131 DLR (3d) 325 (Ont. CA); rev’g. (1980), 115 DLR (3d) 461 (Ont. Div. Ct.) (at 626) f.: The ∏, a university professor, was denied tenure on the recommendation of a tenure committee which included a faculty member who had submitted a negative assessment and recommended against tenure before being appointed to the committee. The recommendation was affirmed by the appeal committee and the president did not award tenure. The applicant sought judicial review, claiming there had been procedural unfairness (apprehension of bias). ∏ won at Div. Ct. ∆ appealed. i.: Was ∏ denied procedural fairness when the chairman of the Tenure Committee appointed to the committee a tenured faculty member whom the chairman knew had submitted a negative assessment (recommending denial of tenure) of the ∏? r.: In order to justify judicial review of a decision by a Tenure Committee on which sat a member who submitted an unfavourable assessment of a candidate, the candidate must demonstrate “manifest unfairness” or “flagrant violations of procedural fairness.” The Court should exercise restraint and be slow to intervene in university affairs where the university provides adequate internal appeal mechanisms. a.: For ∆. Appeal allowed. AWeatherston JA. and Mackinnon ACJO.: The tenure process is inherently biased since all committee members know candidate – it is a form of “peer review”. The presence of one member on the multi-member Tenure Committee who submitted an unfavourable assessment of the candidate was not such manifest unfairness as to call for discretionary judicial intervention by judicial review. Great Atlantic & Pacific Co. of Canada v. Ontario (HRC) (1993), 12 Admin LR (2d) 267 (Ont. Div. Ct.) (at 628) f.: Constance Backhouse was appointed as the Board of Inquiry in an investigation of ∏ for violations of the CHRA (systemic sex discrimination). At the time of her appointment, Backhouse (an associate law professor at Western) was a party to a sex discrimination complaint, filed in 1987 with the ∆ by 120 people, against Osgoode Hall Law School and was part of a 12 40 member steering committee overseeing the complaint. Since 1989, the complaint was “outstanding” with the ∆. Backhouse withdrew her name from the complaint and resigned from the steering committee in 1993. i.: Does the fact that Backhouse was both an appointed Board for the ∆ as well as a complainant in an outstanding proceeding before the ∆ create a reasonable apprehension of bias? r.: A reasonable apprehension of bias arises when an individual who is an appointed adjudicator for a Commission becomes a personal party to a complaint pending in the same Commission. a.: For ∏. Application to quash Board proceedings granted. The Court: Simple justice requires a high degree of neutrality. That would not be obtained were Backhouse to continue as Board since she descended personally, as a party, into the very arena over which she was appointed to preside in relation to the very same issues she has to decide. Therefore there is a reasonable apprehension of bias. Large v. Stratford (City) (1992), 9 OR (3d) 104 (Div. Ct.) (at 630) f.: ∆ (A) argues board chair (a professor) was biased as evidenced by his public statements made after he released his decision in this case but before he dealt with compensation. Speaking as president of the Canadian Association of University Teachers, he said that retirement should be flexible and not mandatory, that it should be negotiated and that governments should be lobbied to abolish mandatory retirement. He also said “Human rights laws which recognize BFORs are the appropriate way to deal with those few situations where it [is] impractical to deal with each man or woman individually.” i.: Did the chair’s public statements (as president of CAUT) create a reasonable apprehension of bias in the proceedings? r.: A Board chair may take a public position on a public issue related to the nature of the Board so long as it is not an issue immediately before the Board. a.: ∆ action dismissed. Chair’s comment do not raise apprehension of bias. Archie Campbell J.: Professor took a public position on a public issue (mandatory retirement), which was never in issue before him in this case, since parties agreed that mandatory retirement age of 60 was prima facie discriminatory. HR boards are drawn from pool of experts. To exclude everyone who had an opinion on HR would exclude those best qualified to adjudicate this area of public policy fairly and knowledgeably. 5.1.6. Variations in Standards Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 SCR 1170 (at 633) f.: ∆ approved a proposed land development in Old St. Boniface, and adopted the recommendations of various committees that the land in question be rezoned to be sold to a developer. Prior to public hearings on the application for rezoning submitted by the developer, a municipal councillor had been personally involved in the planning of the proposed development and had appeared as advocate in support of the application at in camera private meetings of the Finance Committee. At the public meetings, he did not disclose his earlier involvement with the 41 application. Before the re-zoning by-law was passed, the ∏ attacked the process by a motion filed in the Court of Queen's Bench. The motions judge quashed the decision and prohibited the passing of the rezoning by-law. The ∆’s appeal to the Court of Appeal was allowed. ∏ appealed to SCC. i.: Whether the municipal councillor was disqualified by reason of bias from participating in the City Council proceedings to decide on the rezoning of the land in Old St. Boniface. r.: Flexible approach based on context now taken when applying test for disqualifying bias. In context of Municipal Councils, it is not appropriate to apply test of reasonable apprehension of pre-judgment with full vigour as Legislature could not have intended “free from bias” rule would apply equally to members of City Council (where a degree of prejudgment is inherent) as it does to a more “judicial” tribunal. The party alleging bias must establish that any representations at variance with the adopted view would be futile (improbability of persuasion). Statements by individual members of Council, while they may give rise to an appearance of bias, will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter. If councillor has a private interest in a matter, that person is disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that it might influence the exercise of that duty. a.: For ∆. ∏ appeal dismissed. Sopinka J.: The applicable test is that objectors or supporters be heard by members of Council who are capable of persuasion (consistent with role of municipal councilor). The party alleging disqualifying prejudgment must establish that any representations at variance with the adopted view would be futile. The councillor whose impartiality was in question had no personal interest in the development, either pecuniary or by reason of a relationship with the developer; no indication that he is incapable of persuasion. Save Richmond Farmland Society v. Richmond (Township), [1990] 3 SCR 1213 (at 638) f.: A by-law was introduced to turn agricultural lands into residential developments. An alderman was reported to have stated publicly that he would not change his mind regardless of what was said at the public hearings. There was other evidence that he had also stated that he would listen attentively to the proceedings. In a subsequent interview he is stated to have said that he favoured the rezoning of the land and that it would take something significant to change his mind. During the hearing, objections were raised to the alderman's continued participation on the ground that he had predetermined the issue. The alderman participated in the vote on the by-law, which passed by a five-to-four margin. The ∏ appeal to the BCCA was dismissed. ∏ appealed to SCC. i.: Whether the alderman was disqualified by reason of bias due to some of his public statements which indicated he would not change his mind no matter what he heard at a public hearing. r.: A member of a municipal council is not disqualified by reason of his bias unless he has prejudged the matter to be decided to the extent that he is no longer capable of being persuaded 42 (Old St. Boniface). The relevant test, therefore, is whether the alderman in fact had a closed mind. a.: For ∆. ∏ appeal dismissed. Sopinka J.: The alderman had not reached a final opinion which could not have been dislodged, and, accordingly, he was not disqualified by bias. La Forest J.: In this case, the rezoning was initiated by Council and driven by policy. The standard of fairness mandated by s. 956 placed on Council members little more than the obligation of ensuring that due notice was given to those who stood to be affected, as well as a reasonable opportunity to express their views. Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 SCR 623 (at 642) f.: ∆ (R), whose members are appointed by Cabinet subject only to the qualification that they not be employed by or have an interest in a public utility, regulates ∏ (A). One commissioner, a former consumers' advocate, made several strong statements which were reported in the press against ∏’s executive pay policies before a public hearing was held by the ∆ into ∏’s costs. When the hearing commenced, ∏ objected to this commissioner's participation on the panel because of an apprehension of bias. The ∆ found that it had no jurisdiction to rule on its own members and decided that the panel would continue as constituted. A number of public statements relating to the issue before the ∆ were made by this commissioner during the hearing and before the ∆ released its decision disallowed some of ∏’s costs. ∏ appealed both the order of the ∆ and the ∆’s decision to proceed with the panel as constituted to the CA. The CA found that the ∆ had complete jurisdiction to determine its own procedures and all questions of fact and law and that it declined to exercise its jurisdiction when it refused to remove the commissioner from the panel. Although the court concluded that there was a reasonable apprehension of bias, it held that the ∆’s decision was merely voidable and that, given that the commissioner's mind was not closed to argument, the ∆’s order was valid. ∏ appealed to SCC. i.: (1) The extent to which an administrative board member may comment on matters before the board and, (2) the result which should be obtained if a decision of a board is made in circumstances where a reasonable apprehension of bias is found. r.: The test to ensure fairness is whether a reasonably informed bystander would perceive bias on the part of an adjudicator. Those tribunals that are primarily adjudicative will be expected to comply with the standard applicable to courts: there must be no reasonable apprehension of bias with regard to their decision. However, those with popularly elected members have a lower standard: a reasonable apprehension of bias occurs if a board member pre-judges the matter to such an extent that any representations to the contrary would be futile. Administrative boards that deal with matters of policy will be closely comparable to the boards composed of elected members. A member of a board which performs a policy-formation function should not be susceptible to a charge of bias simply because of the expression of strong opinions prior to the hearing, as long as those statements do not indicate a closed mind. Statements manifesting a closed mind, even at the investigatory stage, constitute a basis for raising apprehended bias. Once the matter reaches the hearing stage a higher standard must apply (e.g. no apprehension of bias). 43 a.: For ∏. Appeal allowed. Cory J.: The statements at issue here indicated not only a reasonable apprehension of bias but also a closed mind on the commissioner's part on the subject. Once the order directing the holding of the hearing was given, the ∏ was entitled to procedural fairness. At the investigative stage, the "closed mind" test was applicable but once matters proceeded to a hearing, a higher standard had to be applied which required the ∆ members to conduct themselves so that there could be no reasonable apprehension of bias. 5.2. Lack of Independence/Impartiality Sethi v. Canada (Minister of Employment and Immigration), [1988] 2 FC 552 (CA) (at 651) f.: ∏ claimed to be Convention refugee, Minister disagreed and ∏ made application to Immigration Appeal Board (IAB) for re-determination. ∏ then claimed bias due to apparent effects of Bill C-55 on the IAB. Bill was to dissolve IAB, and put 49 members out of work, but form new Immigration and Refugee Board (IRB) that members could apply to sit on. ∏ argued that this would put pressure on board members to “please the government” by rejecting applications/appeals. ∏ succeeded at FCTD. ∆ appealed to FCA. i.: Does the introduction of Bill C-55 create an apprehension of a lack of independence amongst members of the IAB due to the job-insecurity that the Bill creates? r.: The mere expression of a government’s intentions toward a tribunal cannot give rise to an apprehension of a lack of independence. a.: For ∆. Appeal allowed. Mahoney JA.: Members of IAB are right minded. No informed, right minded person would conclude that members of IAB would think that rejecting applications would please the government. Government announcement of its intentions with regards to a tribunal are essential for the democratic process, as it allows those who disagree with the intentions to voice their concerns. Presuming that such announcements would create an apprehension of impartiality in the tribunal would have a chilling effect on government’s statements and public input into such matters would be lost. Alex Couture Inc. v. Canada (AG) (1991), 83 DLR (4th) 577 (Que. CA) (at 653) i.: What are the requirements that a tribunal must meet to be considered an independent and impartial tribunal under s. 11(d) of the Charter? r.: Rousseau-Joule JA.: Impartiality of a judge/tribunal is the absence of bias, actual or perceived. There is also a requirement of institutional independence/impartiality. For the purposes of s. 11(d) of the Charter the test for assessing the independence of judge/tribunal is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude.” Three conditions must be met – (1) Security of tenure (against interference by executive or other appointing authority in an arbitrary manner – most important), (2) Financial security (against arbitrary interference by the executive) and (3) Institutional independence with respect to administrative decisions bearing directly on the exercise of judicial functions (independence from government). 44 The test for institutional independence also applies to institutional impartiality. The fact that a judge sits part-time on a tribunal does not raise bias, but the activities that judges engage in while not sitting may give rise to an apprehension. Must apply a two-step test: (1) having regard for a number of factors, but not limited to, the nature of the occupation and the parties who appear before this type of judge, will there be a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases? (2a) If no, allegations of bias cannot be brought at an institutional level but must be dealt with on case-by-case basis. (2b) If yes, the occupation is per se incompatible with the function of the judge – but must consider the sufficiency of safeguards to minimize such prejudicial effects to determine if they meet the guarantee of impartiality under s. 11(d). Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 SCR 3 (at 662) f.: Amendments to the Indian Act enabled First Nations bands to pass their own by-laws for the levying of taxes against real property on reserve lands. The ∆ (A) bands each developed taxation and assessment by-laws which were implemented following the Minister's approval. The Matsqui Band's assessment by-law provided for the appointment of Courts of Revision to hear appeals from the assessments, the appointment of an Assessment Review Committee to hear appeals from the decisions of the Courts of Revision and, finally, an appeal on questions of law to the FCTD from the decisions of the Assessment Review Committee. All the by-laws provided that appeal tribunal members could be paid, but did not mandate that they be paid, and gave no tenure of office. Each ∆ sent the ∏ (R) ("CP"), a notice of assessment in respect of the land forming its rail line which ran through the reserves. The Matsqui Band also sent a notice of assessment to the ∏ (Unitel”), which laid fibre optic cables on the CP land. The ∏ commenced an application for judicial review in the FCTD, requesting that the assessments be set aside. The ∆ brought a motion to strike the ∏ application for judicial review on the grounds that the assessment by-laws provided for an adequate alternative remedy -- an eventual right of appeal to the FCTD. The motions judge accepted the argument and struck out the ∏’s application for judicial review. The FCA allowed ∏ appeal, and dismissed the ∆ motion to strike. i.: Was there a lack of institutional independence in the ∆ appeal tribunals? r.: The essential conditions of institutional independence in the judicial context need not be applied with the same strictness in the case of administrative tribunals. Conditions of institutional independence must take into account their operational context. The reasonable person, before making a determination of whether or not he or she would have a reasonable apprehension of a lack of independence, should have the benefit of knowing how the tribunal operates in actual practice. a.: Per Sopinka J (3 others concurring): The essential conditions of institutional independence in the judicial context need not be applied with the same strictness in the case of administrative tribunals. Conditions of institutional independence must take into account their operational context. This context includes that the band taxation scheme was part of a nascent attempt to foster Aboriginal self-government. Before concluding that the by-laws in question deprive the band tribunals of institutional independence, they should be interpreted in the context of the fullest knowledge of how they are applied in practice. The reasonable person, before making a determination of whether or not he or she would have a reasonable apprehension of bias, should 45 have the benefit of knowing how the tribunal operates in actual practice. Case law has tended to consider the institutional bias question after the tribunal has been appointed and/or actually rendered judgment. Per Lamer J. (Cory J. concurring): Principles of natural justice apply to the ∆ tribunals and are not diluted by a federal policy of promoting Aboriginal self-government. Judicial independence is a long standing principle of constitutional law which is also part of the rules of natural justice even in the absence of constitutional protection. Natural justice requires that a party be heard by a tribunal that not only is independent but also appears to be so. A strict application of the principles for judicial independence is, however, not always warranted. Therefore, while administrative tribunals are subject to these principles, the test for institutional independence must be applied in light of the functions being performed by the particular tribunal at issue. The requisite level of institutional independence (i.e., security of tenure, financial security and administrative control) depends on the nature of the tribunal, the interests at stake, and other indices of independence such as oaths of office. In this case, three factors lead to conclusion of apprehension of bias: (1) the complete absence of financial security for members of the tribunals; (2) the complete absence of or ambiguity in security of tenure and (3) the fact that the tribunals, whose members are appointed by the Band Chiefs and Councils, are being asked to adjudicate a dispute pitting the interests of the bands against outside interests. 2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool), [1996] 3 SCR 919 (at 672) f.: After finding the way ∆ operated in practice led to reasonable apprehension of bias in an institutional sense, court went on to deal with further argument of lack of independence. r. Security of tenure does not require appointment for life. Fixed-term appointments, which are common, are acceptable. However, the removal of adjudicators must not simply be at the pleasure of the executive – dismissal by executive for certain reasons, along with right to contest wrongful dismissal in court are satisfactory. Large number of points of contact between the board and the executive does not raise a reasonable lack of institutional independence so long as decision making lies with the board. The fact that a Minister is ultimately responsible for the Board does not infringe institutional independence. a.: Gonthier J.: The three main components of judicial independence are financial security, security of tenure and institutional independence. A certain degree of flexibility is appropriate where administrative agencies are concerned. In interpreting s. 23 of the Charter, it is necessary to consider the functions and characteristics of the administrative agencies in question. In this case, the directors have sufficient security of tenure, since sanctions are available for any arbitrary interference by the executive during a director's term of office. The directors' conditions of employment meet the minimum requirements of independence. Fixed-term appointments, which are common, are acceptable. However, the removal of adjudicators must not simply be at the pleasure of the executive. Here the orders of appointment state that the directors can be dismissed only for certain specific reasons. In addition, it is possible for the directors to apply to the ordinary courts to contest an unlawful dismissal. The large number of points of contact between the ∆ and the Minister of Public Security does not raise a reasonable lack of institutional independence. It is not unusual for an administrative agency to be subject to the general supervision of a member of the executive with respect to its management. The essential elements of institutional independence may be summed up as judicial control over the administrative 46 decisions that bear directly and immediately on the exercise of the judicial function. It has not been shown how the Minister of Public Security might influence the decision-making process. The fact that the Minister is ultimately responsible for both the ∆ and the various police forces conducting investigations would not cause an informed person to have a reasonable apprehension with respect to the independence of the directors. The directors swear an oath requiring them to perform the duties of their office honestly and fairly. NOTE: Tenure, salary, administration are guidance points to determining independence/impartiality and that lack of one may not necessarily be fatal for the tribunal. 6. Standard of Review Crevier v. Quebec (AG), [1981] 2 SCR 220 (at 46) Judicial review for jurisdictional error is a constitutional guarantee. Interpretation of ss. 96-101 the Constitution Act, 1867: given the necessity of an independent/impartial judiciary, there is little point in having that if Parliament can empower a tribunal to become the final arbiter of its jurisdiction, which was, at the time of Confederation, the role of the superior courts. This applies to the provinces, and in subsequent jurisprudence to the federal government. CUPE, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 SCR 227 (at 714) f.: During the course of a lawful strike the ∏ (A) union complained that the ∆ (R), the employer, was replacing striking employees with management personnel contrary to s. 102(3)(a) of the Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25. The issue centered on s. 102(3)(a) of the Act which provides that "the employer shall not replace the striking employees or fill their position with any other employee." The Public Service Labour Relations Board rejected the ∆’s argument that the only intent of the section was to ensure that the jobs remained open for the ∏ after the strike was over. The Board's view was that the Legislature intended through s. 102(3) to restrict the possibility of picket-line violence by prohibiting strike-breaking and picketing; an intention which would be frustrated if the ∆’s argument was accepted. The Appeal Division allowed an application by the ∆ for certiorari and quashed the decision of the Board, holding the interpretation of s. 102(3) as a “preliminary or collateral matter” wrongly decided by the Board which thereby assumed a jurisdiction that it did not have. ∏ appealed to SCC. i.: Is the interpretation of s. 102(3) a preliminary or collateral matter? Did the Board incorrectly interpret the section and thereby assume a jurisdiction it did not have (thus enabling judicial review)? r.: Examples of jurisdictional error include: acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into account, breaching the provisions of natural justice or misinterpreting the provisions of the Act so as to embark on an inquiry or answer a question not remitted to it. Board decisions protected by a privative clause will only be overturned if they are “patently unreasonable.” a.: For ∏. Appeal allowed. Dickson J.: The language of "preliminary or collateral matter" does not assist in determining the Board's jurisdiction. Court should focus instead on what the Board is supposed to do in relation to the question being asked. Examples of jurisdictional error include: acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into 47 account, breaching the provisions of natural justice or misinterpreting the provisions of the Act so as to embark on an inquiry or answer a question not remitted to it. The privative clause in s. 101 protects the decisions of the Board made within jurisdiction and that section is clear statutory direction that public sector labour matters be promptly and finally settled by the Board. This would dispose of the appeal were it not for the contention that the Board's interpretation was 'patently unreasonable'. In this case the tribunal could come to 4 different interpretations of the section, all of which are reasonable. Union des employes de service, Local 298 v. Bibeault, [1988] 2 SCR 1048 (at 726) f.: The question is whether s. 45 of the Labour Code applied to the case of two subcontractors who succeeded each other under two subcontracting contracts given to them by the same principal, without there being any legal relation between the two subcontractors. MBD and Netco handled janitorial services in six schools under contracts for janitorial services awarded annually through tender. At the time ∏ (A) represented the Netco and MBD employees. Following a strike by MBD and Netco employees, the school board legally terminated the K and, after tendering, assigned the janitorial services of the schools by K to Services Ménagers. ∏ filed applications with the labour commissioner citing ss. 45 and 46 of the Labour Code, seeking to have the transfer of the rights and obligations of MBD and Netco to Services Ménagers and so defeat ∆ (R) application for certification of the Services Ménagers employees. The commissioner granted ∏ applications and he dismissed ∆ application for certification Labour Court upheld the decisions of the commissioner. ∆ applied to the Superior Court. The Sup. Ct. allowed the motion and the judgment was affirmed by the CA. ∏ appealed. i.: Did the Labour Commissioner and, on appeal, the Labour Court act in excess of jurisdiction by holding that the “successor-employer” provisions of the Labour Code applied to a company that had successfully tendered for a K to provide janitorial services for schools run by the Board? (i.e. if the decisions of the Labour Court are in error, are they subject to judicial review by the superior courts?) r.: Must ask "Did the legislator intend such a matter to be within the jurisdiction conferred on the tribunal?” Now use pragmatic and functional analysis. First stage of the analysis involves determining the tribunal's jurisdiction. To do this, Court examines (1) wording of the enactment conferring jurisdiction on the administrative tribunal, (2) purpose of the statute creating the tribunal, (3) the reason for its existence, (4) the area of expertise of its members and the (5) nature of the problem before the tribunal. a.: For ∆. ∏ appeal dismissed. Beetz J.: Labour tribunals do not have jurisdiction to decide whether there had been an alienation (voluntary transfer of right of ownership) by another of an undertaking for 3 reasons. (1) the language of s. 45 did not make this question dependent on opinion formed by tribunal. (2) “alienation” is Civil Code concept – the specialized expertise of the tribunal was irrelevant to an understanding of whether the events constituted an “alienation” of an undertaking (this type of question is best dealt with by the courts); (3) by giving purely “functional” meaning to “undertaking”, and by dispensing with need for consensual transaction before there could be “alienation”, tribunal ignored essential structure of collective bargaining under Labour Code – “an employer, his undertaking and the association of employees connected with that employers undertaking”. 48 6.1. Deviations from the Standard of Review Canada (AG) v. Mossop, [1993] 1 SCR 554 (at 733) f.: The complainant (∆), a federal government employee, took a day off work to attend the funeral of the father of the man he described as his lover. The collective agreement between Treasury Board and the ∆ union provided for up to 4 days leave upon the death of a member of an employee's "immediate family", a term defined as including a C/L spouse. The definition of "common-law spouse" was restricted to a person of the opposite sex. The day after the funeral the ∆ applied for bereavement leave pursuant to the collective agreement, but his application was refused. The grievance he filed was rejected on the basis that the denial of his application was in accordance with the collective agreement. The ∆ then filed complaints with the ∏ (A) Canadian HRC against his employer and his union. The HR tribunal concluded that a discriminatory practice had been committed (discrimination on basis of "family status"). It ordered that the day of the funeral be designated as a day of bereavement leave and that the collective agreement be amended so that the definition of C/L spouse include persons of the same sex. The FCA granted the ∏’s application pursuant to s. 28 of the Federal Court Act and set aside the tribunal's decision. ∆ appealed. i.: What is the standard of review that the FCA should have applied when reviewing for error of law the tribunal’s interpretation of its enabling legislation pursuant to s. 28, given the lack of a privative clause? r.: When tribunals are acting under a privative clause the SCC has limited the power of review to cases of patent unreasonableness (Nipawin). Where there is no privative clause, deference will be given on questions of law only to certain specialized tribunals. HR tribunals are not such specialized tribunals, therefore deference will only be given to questions of fact, not law. a.: For ∏. ∆ appeal dismissed. Lamer CJC.: The general question raised in this appeal is one of statutory interpretation (definition of “family status) where FCA has jurisdiction. When tribunals are acting under a privative clause the SCC has limited the power of review to cases of patent unreasonableness (Nipawin). Where there is no privative clause, deference will be given on questions of law only to certain specialized tribunals. HR tribunals are not such specialized tribunals, therefore deference will only be given to questions of fact, not law (although some expertise can develop from experience – “field sensitivity”) L’Heureux-Dube J. (dissenting): The P&F approach articulated in Bibeault provides the proper framework to determine the appropriate standard of review in a specific case. It must be asked whether the legislator intended the question to be within the jurisdiction conferred on the tribunal. The Court will examine not only (1) the wording of the enactment conferring jurisdiction on the tribunal, but (2) the purpose of the statute creating the tribunal (the reason for its existence), (3) the nature of the problem before the tribunal and (4) the area of expertise of its members. If courts should answer question – correctness. If HR tribunal should answer question – patent unreasonableness. The Tribunal has the jurisdiction to determine questions of fact, and courts should defer to these findings unless they are patently unreasonable. The Tribunal also has jurisdiction to interpret the HR Act and, consequently, the meaning of the term "family status" in s. 3. Courts should defer to the Tribunal's interpretation (unless patently unreasonable) since the 49 legislature specifically intended that the Commission and its tribunals should carry out the task of interpreting the grounds of discrimination in the Act. United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 SCR 316 (at 745). f.: The ∏ (A) represents employees of the ∆ (R), which is affiliated with and carries on business on the same premises as N.D. Dobbin Ltd., a non-unionized company. The two companies use common facilities and are owned, managed and directed by the same persons. While a collective agreement between ∆ and the ∏ was in effect, Dobbin won K to construct a university building. To assist in carrying out this K, it hired non-unionized carpenters. The ∏ claimed that this amounted to a breach of the collective agreement it had with ∆ because Dobbin was an affiliated company of ∆. Article 3.01 of the agreement provides that "when the Employer shall perform any work of the type covered by this Agreement ... this Agreement shall be applicable to all such work". The arbitrator ruled for ∏. He noted that the existence of the two companies permitted ∆ to engage in the practice of "double-breasting", whereby the non-unionized arm, Dobbin, could bid on contracts and carry out work using the facilities, management personnel and equipment of the unionized arm, ∆, but could hire non-union personnel. The practice of double-breasting had led to a prolonged strike in 1986 which was settled by both: the ∏ agreed to wage concessions, while the companies agreed to stop engaging in "double-breasting". The arbitrator found that Article 3 was incorporated into the agreement in an effort to guarantee the companies' compliance with the "double-breasting" concession. In his view this case presented a clear example of double-breasting which the report was intended to terminate. Decision was upheld by the Nfld. SC-TD, but reversed by the CA, which found that both the arbitrator's determination that the meaning of the phrase "perform any work" was unclear and his resolution of the ambiguity were patently unreasonable. ∏ appealed. i.: What is the appropriate standard of review to be applied to the arbitrator’s decision given the absence of a full privative clause? Did the arbitrator, in finding ambiguity in Article 3 of the collective agreement and in concluding that the agreement had been breached by the ∆, make a reviewable error? r.: Where the relevant provision is a true privative clause, judicial review is limited to errors of jurisdiction resulting from an error in interpreting a legislative provision limiting the tribunal's powers or a patently unreasonable error on a question of law. Other forms of clauses may also have privative effect. Wording such as "final and conclusive" may be found to restrict review to matters of jurisdiction if the court concludes that the legislator clearly intended that the decision should be immune from review in the absence of an error as to jurisdiction. In this analysis a court should consider the clause in light of the (1) purpose, (2) nature and (3) expertise of the tribunal in question. a.: For ∏. Appeal allowed. Sopinka J.: The goal of mandatory arbitration is to arrive at an efficient and cost-effective manner of resolving. An unlimited scope of judicial review of an arbitrator's decision would thwart this goal, therefore the words "final settlement" must be taken to indicate the legislature's intention that the courts exercise some restraint in this area. The questions the arbitrator had to resolve here involved the interpretation of the collective agreement and its application to a particular factual situation, matters which constitute the core area of an 50 arbitrator's expertise. Combined with the purpose and wording of s. 88, the arbitrator's relative expertise mandates that the court defer to the decision of the arbitrator in this case unless his decision is found to be patently unreasonable. 6.2. Extending Deference – Statutory Appeals Even when there is a statutory right of appeal, the P&F approach must still be applied – a right of appeal is one factor to be considered (that favours review on standard of correctness). Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 SCR 557 (at 764) f.: BC Securities Commission had found ∏ (R) and others had failed to make timely disclosure in respect of certain transactions as required by the Securities Act. It suspended them from trading shares for a year and ordered them to pay costs. ∏ exercised right of appeal on a question of law under s. 149 of the Act, arguing Commission erred in its interpretation of the phrase “material change” in the affairs of a reporting issuer shares. CA allowed appeal and ∆ appealed to SCC. i.: What is the standard of review to be applied to a decision of a securities commission not protected by a privative clause and where there is a statutory right to appeal? r.: Where there is a specialized tribunal that is deciding a question of law on a matter that goes to the core of its expertise (e.g. securities commission interpreting the Securities Act), significant deference should be granted to its decisions notwithstanding the facts that there was a statutory right of appeal and that there was no privative clause. a.: For ∆. Appeal allowed. Iacobucci J.: The courts have developed a spectrum of review that ranges from patent unreasonableness (where deference is at its highest, for example, where a tribunal is protected by a privative clause in deciding a matter within its jurisdiction) to that of correctness (where deference is at its lowest, for example, where there is a statutory right of appeal or where the issue concerns the interpretation of a provision limiting the tribunal's jurisdiction). This case falls between these two. On one hand lies a statutory right of appeal pursuant to s. 149 of the Securities Act. On the other lies an appeal from a highly specialized tribunal on an issue which arguably goes to the core of its regulatory mandate and expertise. Given the nature of the securities industry, the Commission's specialization of duties and policy development role, and the nature of the problem before the court, considerable deference was warranted in the present case notwithstanding the facts that there was a statutory right of appeal and that there was no privative clause. Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 SCR 748 (at 769) f.: In 1989, ∆ began to acquire community and specialized newspapers in the Vancouver area, and one year later had obtained a controlling interest in 13 community newspapers (including the two strongest ones, the North Shore News and the Vancouver Courier), a real estate advertising publication, three distribution services and two printing concerns. The ∏ (R) applied for an order requiring ∆ to divest itself of the North Shore News, the Vancouver Courier, and the Real Estate Weekly, alleging that the concentration of these properties in the hands of one publisher was likely to lessen competition substantially in the retail print advertising and real estate print advertising markets in the Lower Mainland. The Competition Tribunal found a substantial lessening in competition in the real estate print advertising market in the North Shore. It ordered 51 ∆ to divest itself, at its option, of either the North Shore News or the Real Estate Weekly. It rejected ∆’s proposal that it sell the real estate section of the North Shore News. ∏ appealed the Tribunal's decision on the merits and ∆ appealed the Tribunal's decision on the remedy. The FCA allowed the first appeal and dismissed the second. i.: Whether the FCA erred in concluding that it owed no deference to the Tribunal's finding about the dimensions of the relevant market and in subsequently substituting for that finding one of its own. r.: Questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. Appellate courts should be reluctant to venture into a re-examination of the conclusions of the Tribunal on questions of mixed law and fact. Standard of reasonableness simpliciter - A standard more deferential than correctness but less deferential than "patently unreasonable" is required when several considerations, including particularly the expertise of the Tribunal, counsel deference while others suggest a more exacting form of review (no privative clause, right to appeal). An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable. a.: For ∏. Appeal on merits allowed; ∆ appeal on the remedy dismissed. Iocabucci J.: There is no privative clause (therefore counsels less deference). The Tribunal, however, has been recognized as being expert in overseeing a complex statutory scheme whose objectives are economic. A court is likely to encounter difficulties in understanding the economic and commercial ramifications of the Tribunal's decisions and consequently to be less able to secure the fulfillment of the purpose of the Competition Act. Therefore the purpose of the Act is better served by deference to the Tribunal's decisions. Expertise is the most important of the factors that a court must consider in settling on a standard of review. Law Society of New Brunswick v. Ryan, 2003 SCC 20 (at 780) f.: ∏ disbarred ∆ for professional misconduct. ∆ appealed to NB CA as provided for in Law Society Act of NB, who remitted matter to Discipline Committee mandating it reconsider matter in light of medical evidence submitted by ∆. Committee did so and reaffirmed decision. ∆ appealed to CA, which allowed appeal and substituted penalty of indefinite suspension. ∏ appealed to SCC. i.: Is there a fourth standard between unreasonableness and patent unreasonableness? In the alternative, are there floating concepts of unreasonableness depending on the circumstances? r.: There are only three standards for judicial review of administrative decisions: correctness, reasonableness simpliciter and patent unreasonableness. Additional standards should not be developed unless there are questions of judicial review to which the three existing standards are 52 obviously unsuited. The pragmatic and functional approach will determine, in each case, which of these three standards is appropriate. The reasonableness standard does not float along a spectrum of deference such that it is sometimes quite close to correctness and sometimes quite close to patent unreasonableness – were this so it would require that the court ask different questions of the decision depending on the circumstances. Satisfying reasonableness simpliciter: If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere. This means that a decision may satisfy the standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling. a.: For ∏. Appeal allowed. Iacobucci J.: Although there is a statutory appeal from decisions of the Discipline Committee, the expertise of the Committee, the purpose of its enabling statute, and the nature of the question in dispute all suggest a more deferential standard of review than correctness. A consideration of these four contextual factors leads to the conclusion that the appropriate standard is reasonableness simpliciter. There is nothing unreasonable about the Discipline Committee's decision to ban a member from practicing law when his repeated conduct involved an egregious departure from the rules of professional ethics and had the effect of undermining public confidence in basic legal institutions. Since the Discipline Committee provided reasons in support of its choice of sanction that were tenable and grounded in the evidence, its decision was not unreasonable and the CA should not have interfered. 6.3. Reinforcing and Rearticulating the Modern Standard of Review CUPE, Local 301 v. Montreal (City), [1997] 1 SCR 793 (at 753) f.: The ∆ (A) requested the intervention of the Conseil des services essentiels (the "Council"), alleging that the ∏ (R) had instructed the ∆’s union workers to refuse to work overtime for the duration of a holiday weekend. Under their collective agreement, ∏ members have the right to refuse to work overtime without giving a reason. The Council held a public hearing at which witness testimony and argument by legal representatives on behalf of both parties were heard. The hearing was not taped. The Council ordered the ∏ to take all necessary measures to ensure that its members reported to work and fulfilled their usual duties, whether in regularly scheduled or overtime hours, as requested by the employer. The employees were similarly ordered to report to work if requested by the employer, again for regular hours or overtime. The Council found that the requisite elements to make an order pursuant to ss. 111.17 and 111.18 of the Quebec Labour Code, which authorize orders to ensure the maintenance of services to which the public is entitled where there exists a concerted action related to a labour conflict and either is currently or has the potential of prejudicing these services, were established. The ∏ filed motion for review of the Council's decision, on the grounds that the tribunal had interpreted the law and the evidence in a patently unreasonable manner. The motion was dismissed at trial. The CA overturned the judgment, granted the ∏ motion for review, and quashed the Council's order. It found that in ordering the suspension of a provision of the collective agreement, the Council had exercised a remedial power not conferred upon it (committing a jurisdictional error). ∆ appealed. i.: Did the Council commit a jurisdictional error by exercising a remedial power not conferred upon it (ordering the suspension of a provision of the collective agreement, that being the ability of union workers to refuse overtime without reasons)? 53 r.: To determine whether the question facing the Council was one which the legislature intended it to decide, a P&F interpretation of the statute is required, one which considers (1) the wording, purpose and underlying reasons of the legislation in creating the tribunal, (2) the tribunal's expertise and (3) the problem before it. a.: For ∆. Appeal allowed. L’Heureux-Dube J.: Quebec Labour Code establishes a system of collective bargaining between employers and employees in the province. The Council is created and granted various functions and remedial powers. The need for this specialized body is evident: when public employees strike, the pressure exerted on the employer arises from the disruption of services upon which society depends. The government must balance the right to strike against other entitlements and needs such as those established in human rights and social legislation. The health and safety of the greater populace will always take priority over the workers' and/or employers' interests in achieving a fair and equitable settling of the terms of employment. The legislation has granted the Council broad powers to make orders that maintain the public's ongoing access to fundamental services. The issue before the Council was one that lies logically at the heart of its specialized jurisdiction. The task faced by the Council was the fashioning of an effective order that is required and reasonable to secure the provision of services to which the public is entitled. In the presence of a strongly worded privative clause such as the one in s. 139 of the Labour Code, where the factual and legal aspects of the problem facing the tribunal place the question squarely within its sphere of expertise, the tribunal's decision will stand unless it is patently unreasonable Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982 (at 790) f.: In 1985, the ∏ (A) claimed refugee status under the UN Convention Relating to the Status of Refugees as implemented by the Immigration Act, but his claim was never adjudicated as he was granted permanent residence status in Canada. The ∏ was later arrested in Canada and charged with conspiracy to traffic a narcotic. He pleaded guilty and was sentenced to eight years in prison. In 1991, the ∏, then on parole, renewed his claim for Convention refugee status. Employment and Immigration Canada subsequently issued a conditional deportation order against him under ss. 27(1)(d) and 32.1(2) of the Act. Since the deportation pursuant to those sections is conditional upon a determination that the claimant is not a Convention refugee, the ∏’s claim was referred to the Immigration and Refugee Board. The Board decided that the ∏ was not a refugee by virtue of the exclusion clause in Art. 1F(c) of the Convention, which provides that the provisions of the Convention do not apply to a person who "has been guilty of acts contrary to the purposes and principles of the United Nations". The FCTD dismissed the ∏’s application for judicial review and certified the following as a serious question of general importance: Is it an error of law for the IRB to interpret Art. 1F(c) of the Convention to exclude from refugee status an individual guilty of a serious narcotics offence committed in Canada? The FCA answered "no" and upheld the judgment of the TD. ∏ appealed to SCC. i.: What is the proper standard of judicial review over decisions of IRB? r.: P&F approach for determining standard of review. Consider the following factors: 54 (1) Presence/absence of legislative indicia: presence of full privative clause compels court to show deference to tribunal’s decision, unless other factors show to contrary. Less than full clauses mean less deference. Presence of appeal compels court to show less deference; (2) Expertise of the agency: most important factor. It is relative concept. Court must characterize expertise of tribunal; it must consider its own expertise relative to tribunal; it must identify nature of specific issue before tribunal relative to this expertise. High relative expertise suggests higher deference even on generalized interpretation of tribunals empowering statute; (3) Purpose of Act and of Provision: where purpose of statute and decision maker are focused on delicate balancing between different constituencies (polycentricity) and not establishing rights between parties, more deference. Where issues dealt with are less strictly “legal” and more in line with policy, more deference; (4) Nature of problem: generally less deference on questions of law rather than fact. a.: For ∏. Appeal allowed. Bastarache J.: (1) Privative clauses – here there is no strong privative clause (does not say “decision is final” or “not subject to review”); there is a right of appeal beyond FCTD only on questions of general importance – correctness. (2) Expertise – here only 10% of IRB need to be lawyers, boards can be convened without a lawyer, question of importance is about general HR and International law which IRB has no expertise in (their expertise is in accurately evaluating whether the criteria for refugee status have been met and, in particular, in assessing the nature of the risk of persecution faced by the applicant if returned to his country of origin); In Mossop no deference given to HR tribunal on HR matters, therefore no deference on such matters for IRB – correctness. (3) Purpose of Act as Whole and Provision in Particular – here IRB is not engaged in significant policy making role – correctness. (4) Nature of Problem – here there is a “serious question” of law – correctness. 6.4. Focusing on the Nature of the Problem Trinity Western University v. BC College of Teachers, [2001] 1 SCR 772 (at 801) f.: ∏ is a private institution in B.C., associated with the Evangelical Free Church of Canada. ∏ established a teacher training program offering degrees in education in collaboration with Simon Fraser University ("SFU"). ∏ applied to the ∆ for permission to assume full responsibility for the teacher education program. One of the reasons for assuming complete responsibility for the program was ∏’s desire to have the full program reflect its Christian worldview. The ∆ refused to approve the application because it was contrary to the public interest (∏ appears to follow discriminatory practices against homosexuals). On application for judicial review, the BCSC found that it was not within the ∆’s jurisdiction to consider whether the program follows discriminatory practices under the public interest component of the Teaching Profession Act and that there was no reasonable foundation to support the ∆’s decision on that ground. The court ordered mandamus, allowing approval of the ∏’s proposed teacher education program for a five- year period subject to a number of conditions. The BCCA found that the ∆ had acted within its jurisdiction, but affirmed the trial judge's decision on the basis that there was no reasonable foundation for the ∆ finding of discrimination. ∆ appealed. i.: Did the ∆ act outside its jurisdiction in finding the ∏’s “Community Standards” discriminatory? Did the ∆ err in its finding of discrimination? r.: P&F approach for determining standard of review. 55 a.: For ∏. Appeal dismissed. Iacobucci and Bastarache JJ.: (1) There is no privative clause protecting ∆ decision. (2) While ∆ has the discretion to determine the public interest, the ∆ is not the only government actor entrusted with policy development in the area of teaching. Furthermore, its expertise does not qualify it to interpret the scope of human rights nor to reconcile competing rights. (3) Purpose of the Teaching Profession Act is to ensure that public schools fulfill various roles: develop civic virtue and responsible citizenship and to educate in an environment free of bias, prejudice and intolerance. It would not be correct, in this context, to limit the scope of s. 4 to a determination of skills and knowledge. The suitability for entrance into the profession of teaching must take into account all features of the education program at ∏.The ∆ had jurisdiction to consider discriminatory practices in dealing with the ∏ application. (4) The existence of discriminatory practices is based on the interpretation of the Π documents and HR values and principles. This is a question of law that is concerned with human rights and not essentially educational matters. Standard of review is correctness. L’Heureux-Dube J. (dissenting): (1) There is no privative clause. (2) ∆ has relative expertise in the area of setting standards for admission into the teaching profession. (3) The ∆ decision concerning ∏ teacher education program goes to the heart of the Teaching Profession Act's raison d'être. The ∆ is entrusted with policy development. Moreover, the ∆ has wide discretion to review teacher-training programs under the Act. Its polycentric decision in this case was made pursuant to s. 21(i) of the Act, which involves the application of vague, open-textured principles, requiring curial deference. (4) ∆ decision is fact-based, concerning an issue the nature of which implicates the tribunal's expertise. Determining how ∏ program may affect its graduates' preparedness to teach in the public schools is a factual rather than a legal inquiry and requires the specialized expertise of the ∆ members, the majority of whom have classroom experience. Standard of review is patent unreasonableness Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., [2001] 2 SCR 100 (at 812) f.: Under the Customs Act, value must be attributed to goods that are imported to Canada to determine duty. ∏ sought to include royalties paid by ∆ pursuant to a licence agreement between ∆ and a trademark licensor ("Licensor X") in the value for duty of the imported goods. ∆ also made periodic payments to Mattel U.S. in respect of agreements Mattel U.S. had made with various licensors ("Master Licensors"). The ∏ also sought to include these payments in the value for duty of the imported goods. The Canadian International Trade Tribunal ("CITT") held that duty should be calculated on the sale between Mattel U.S. and ∆ and that neither the royalties nor the periodic payments were dutiable because they were not paid "as a condition of the sale of the goods for export to Canada" in accordance with s. 48(5)(a)(iv) of the Act. The FCA reversed the CITT's decision in part, finding that the periodic payments fell within the ambit of s. 48(5)(a)(v). ∆ appealed. i.: What is the standard of review for CITT decisions? r.: P&F approach for determining standard of review. a.: The ∆ appeal should be allowed in part. Major J.: (1) Protection of CITT decisions by partial privative clause qualified by a statutory right of appeal to the FCA on "any question of 56 law". As a result CITT findings of fact are immune from review, but its findings involving questions of law are reviewable. (2) The indications that deference is owed to the CITT included its expertise in some economic, trade or commercial matters. (3) Purpose of Act is to determine duty to be paid on imported goods (economic, trade, commercial matters). (4) This appeal raises pure questions of law requiring the application of principles of statutory interpretation and other concepts that are intrinsic to commercial law therefore CITT's expertise does not speak to the questions at issue. Such matters are traditionally the province of the courts. 7. Review of Discretion Abuse of Discretion as Ground for Judicial Review • C/L grounds of judicial review for abuse of discretion are: decision maker acted in bad faith, wrongfully delegated its powers, fettered its discretion by laying down a general rule and not responding to individual situations, or acted under the dictation of another. • More common grounds are when an agency has exercised discretion to achieve a purpose not contemplated by its grant, or when irrelevant factors are considered or relevant factors are excluded. 7.1. Applying the Functional and Pragmatic Approach Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 (at 57) f.: Π is Jamaican citizen living in Canada illegally since 1981. Has 4 Canadian children. In 1992 was diagnosed with schizophrenia but has shown improvement. Π ordered deported in December 1992 for working illegally and overstaying visitor’s visa. In 1993 Π applied for exemption from s. 9 requirement to apply for permanent residence outside Canada on humanitarian and compassionate grounds (h&c) under s. 114(2) of Immigration Act (IA). Had assistance from lawyer in filing application – contains letters from lawyer, doctor, social worker indicating that Π was making progress and that deportation would likely result in relapse, and that both she and her children would likely suffer emotional hardship if deported. 18 April 94 Officer Caden rejected request without reasons. Notes taken by Officer Lorenz provided upon request by Π (used in decision by Caden – at 59). 27 May 94 Π served deportation order for June 17. Order stayed pending appeal. i.: Was discretion improperly exercised because of the approach taken to interests of Π kids? r.: Discretionary decisions are reviewable using the F&P approach to judicial review – (1) legislative indicia; (2) expertise of decision-maker; (3) purpose of the Act/provision; (4) nature of the question. Must consider if the treatment of the relevancy (not weighing) of factors in the decision are consistent with the particular standard of review being applied. Not considering the interest of the children of a person subject to a deportation order under the IA and is an unreasonable exercise of discretion (given the objectives of the legislation [“keeping families together”], international norms and Ministry guidelines). a.: For ∏. L’Heureux-Dube J.: Discretionary decisions may be reviewed on limited grounds such as (A) bad faith of decision makers, (B) use of discretion for improper purpose, (C) irrelevant considerations. Must use the P&F approach to review of discretionary decisions: (1) no privative clause and therefore no limits for judicial review (except require leave from FCTD) – lower deference; (2) Minister is decision maker (high relative expertise) – higher deference; (3) 57 Purpose of provision is to allow Minister to apply “open-textured” (broad) legal principles to “exempt” someone from provision of Act – higher deference. However, decision relates to rights/interests of an individual, not balancing those of various constituencies – lower deference; (4) h&c decisions are fact based (not law based) – higher deference. Therefore considerable but not total deference should be given to decision makers – use reasonableness simpliciter. An unreasonable decision is one that is not supported by any reasons that can stand up to a somewhat probing examination (usually a defect in evidentiary foundation or logic of decision). Not at all considering interest’s of ∏ children is an unreasonable exercise of discretion (since children’s rights are central h&c values in Canadian society). Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3 (at 954) f.: ∏ was determined by the Minister to be a threat to security of Canada and ordered deported to Sri Lanka. ∏ challenged decision arguing that he faced a substantial risk of torture if he was deported and that deporting someone to torture contravenes s. 7 of the Charter. i.: What is the standard of review for a Minister’s decision to determine if ∏’s presence in Canada constitutes a danger to national security and whether ∏ faces substantial risk of torture upon return to his native country (Sri Lanka). r.: The reviewing court should generally adopt a deferential approach to the Minister's decision on whether a refugee's presence constitutes a danger to the security of Canada. This discretionary decision may only be set aside if it is patently unreasonable (based on F&P approach) in the sense that it was made arbitrarily or in bad faith, cannot be supported on the evidence, or the Minister failed to consider the appropriate factors. Likewise, the Minister's decision on whether a refugee faces a substantial risk of torture upon deportation should be overturned only if it is not supported on the evidence or fails to consider the appropriate factors. The court should not reweigh the factors or interfere merely because it would have come to a different conclusion. a.: The Court: Insofar as the Act leaves open the possibility of deportation to torture (a possibility which is not excluded), the Minister should generally decline to deport refugees where on the evidence there is a substantial risk of torture. Apply the F&P approach. Minister’s decision is not protected by a privative clause but can only be appealed by leave to the FCTD and the leave decision may not be appealed – deference. The Minister is the decision maker and has to have high relative expertise on matters of national security – deference. Purpose of the legislation is to permit a humanitarian balancing of the danger posed to Canadians and the danger of persecution upon refoulement, where the Minister is better situated to decide – deference. Nature of the case is highly fact-based and contextual – deference. Therefore standard of review is one of patent unreasonableness. Court may not reweigh the factors considered but may intervene if decision is not supported by the evidence or fails to consider appropriate factors. 7.2. Wrongful Considerations CUPE v. Ontario (Ministry of Labour) 2003 SCC 29 (supplemental materials) f.: Ontario's hospitals, nursing homes and their employees (∏ unions) resolve disputes by compulsory arbitration under the Hospital Labour Disputes Arbitration Act ("HLDAA"). If the parties cannot agree on an arbitrator, a panel of three members is struck, two designated by the 58 parties and the third chosen by the two designates or, if they fail to agree, appointed by the ∆ Minister of Labour (normal practice to identify arbitrators with expertise acceptable to both management and the unions). In 1998 the ∆ appointed four retired judges to chair several arbitration boards. They were not appointed by mutual agreement nor were they on the "agreed" list. The ∏ objected that retired judges lack expertise, experience, tenure and independence from government. ∏ sought declarations that ∆’s actions denied natural justice and lacked institutional independence and impartiality. The Div. Ct. dismissed the application for judicial review. The CA allowed the ∏ appeal, concluding that the ∆ had created a reasonable apprehension of bias and interfered with the independence and impartiality of the arbitrators, as well as defeating the legitimate expectation of the unions contrary to the requirements of natural justice. The ∆ was ordered not to make any further appointments "unless such appointments are made from the long- standing and established roster of experienced labour arbitrators". ∆ appealed. i.: What is the appropriate standard of review of a Minister’s discretionary decision to appoint retired judges as labour arbitrators under the HLDAA? Can Minister appoint judges to sit as labour arbitrators when they have no expertise or experience in this area of the law? r.: Apply P&F approach. A Minister of Labour’s decision to appoint arbitrators under HLDAA is subject to patent unreasonableness review. A patently unreasonable appointment is one whose defect is immediate, obvious and so flawed in terms of implementing the legislative intent that no amount of curial deference can justify letting it stand. Not considering experience and expertise in making such appointments is patently unreasonable. a.: For ∏. ∆ appeal dismissed. Binnie J.: The P&F approach applies to the judicial review of the exercise of a ministerial discretion. (1) there is a privative clause – deference. (2) Decision maker is Minister who has high expertise in labour relations – deference. (3) Fundamental purpose and object of HLDAA was to provide an adequate substitute for strikes and lock-outs and to ensure the parties perceive the system as neutral and credible. Minister is in best position to ensure this purpose is achieved – deference. (4) Nature of question is one of fact – deference. Therefore standard is patent unreasonableness. A patently unreasonable appointment is one whose defect is immediate, obvious and so flawed in terms of implementing the legislative intent that no amount of curial deference can justify letting it stand. The appointments were not patently unreasonable simply because the ∆ did not restrict himself to the list of arbitrators. However courts are entitled to have regard to the importance of the factors the ∆ altogether excluded from his consideration. In this case, the ∆ expressly excluded relevant factors (expertise and experience in labour law) that went to the heart of the legislative scheme. Therefore the ∆ approach to the appointments was patently unreasonable. Re Sheehan and Criminal Injuries Compensation Board, (1975), 52 DLR (3d) 728 (Ont. CA), rev’g (1973), 37 DLR (3d) 336 (Ont. Div. Ct.) (at 964) f.: The applicant, an inmate of Kingston Penitentiary, was assaulted and injured by other inmates during a riot of prisoners inside the institution. An application for compensation was made to the respondent Board under the Law Enforcement Compensation Act, R.S.O. 1970, c. 237 (repealed and superseded by the Compensation for Victims of Crime Act, 1971 (Ont.), Vol. 2, c. 51). The Board refused the application and in doing so considered as relevant the following circumstances: the fact that, as the applicant had himself been convicted of an offence and sentenced to 59 imprisonment in the penitentiary, he had "contributed" to his injury (s. 3(1)); the fact that the assault took place inside a federal penitentiary wherein the applicant and his assailants were in the custody and control of the federal Government, and the fact that the applicant had taken no other proceedings to obtain compensation (as he was entitled to under s. 7(2)). Sheehan applied for judicial review to quash the decision of the Board and was successful. The Board appealed. i.: Has the Board in refusing the application done so within the proper limits of its discretionary function established by its parent statute, or has the Board, in ascribing its refusal to one or more of the circumstances above, exceeded it statutory jurisdiction so as to bring its decision within reach of judicial review? r.: A Board granted broad discretion to determine what circumstances are relevant to their consideration of an application for an order to make payments under the Act are not subject to review so long as the Board acted in good faith (and did not consider something that was patently irrelevant). a.: For Board. Appeal allowed. Kelly JA.: A distinction must be made between the Board giving consideration to certain circumstances and the Board holding that a particular circumstance disqualified an applicant from benefiting from the Act. The Board is granted broad discretion to decide what is relevant; the payments provided by the statute are gratuitous and funding for such payments is limited; the Board did not hold out any of the factors considered as prerequisites for eligibility; therefore the Board did not exceed its jurisdiction and is therefore its discretionary decision is not subject to judicial review. The Board did not consider anything that was patently irrelevant and its disposition indicates a careful and thoughtful review of the circumstance and a considered decision as to their relevancy. My opinion – the analysis is appropriate, but the statutory interpretation of the word “contributory behaviour” by the Board was patently irrelevant. 7.3. Wrongful Purpose Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 SCR 231 (at 968) f.: The ∏ (A) is a subsidiary of Shell Canada Ltd. and is involved in retail and wholesale marketing of petroleum products in Vancouver. It was periodically invited to tender bids for municipal contracts to supply petroleum products until ∆ Council passed resolutions that the City would not do business with ∏ "until Royal Dutch/Shell completely withdraws from South Africa". Vancouver purchases petroleum products from another company which, through one of its subsidiaries, also does business with South Africa. The BCSC quashed the resolutions as being ultra vires the municipality. The CA reversed the judgment. ∏ appealed. i.: Did the ∆, in considering the conduct of the ∏ outside the city, take into consideration matters irrelevant to municipal concerns, when it decided to boycott the ∏’s products, and thus makes its decision ultra vires and subject to judicial review? Did the ∆ act for other than Municipal Act purposes? r.: A municipality making procurement decisions under power of statute are subject to public law judicial review. Generally, a municipal authority is authorized to act only for municipal purposes. 60 Attempting to influence matters in another part of the world is a purpose outside the City’s territorial limits. a.: 5-4 decision for ∏. Sopinka J.: Under the Vancouver Charter, Council "may provide for the good rule and government of the city" (broad discretion with respect to commercial powers). This places a territorial limit on Council's jurisdiction. While Council can have regard for matters beyond its boundaries in exercising its powers, any action taken in so doing must have as its purpose benefit to the citizens of the City. Generally, a municipal authority is authorized to act only for municipal purposes. The explicit purpose of the resolutions at issue here is to influence Shell to divest itself of its South African holdings by expressing moral outrage against the apartheid regime and to join the alleged international boycott of its subsidiaries and products until Shell "completely withdraws from South Africa". ∆ was seeking to use its powers to do business to affect matters in another part of the world, a purpose which is directed at matters outside the City's territorial limits. Even if there were a municipal purpose, the resolutions constitute unauthorized discrimination. McLachlin J. (dissenting): In cases where powers are not expressly conferred but may be implied, courts must be prepared to adopt the "benevolent construction" which this Court referred to in Greenbaum, and confer the powers by reasonable implication. Such a generous, deferential approach to municipal powers will aid the efficient functioning of municipal bodies, avoid the costs and uncertainty of excessive litigation, is more in keeping with the true nature of modern municipalities, and with the flexible, more deferential approach to the judicial review of un- elected administrative agencies. Council may properly take measures related to fostering and maintaining a sense of community identity and pride, and among such measures may be found community expression of disapproval or approval of different types of conduct. The resolutions discriminate against ∆, but that discrimination is authorized by the Vancouver Charter. While discrimination in the granting of licences, taxes and municipal privileges is generally viewed as requiring express authorization by the empowering legislation, the presumption regarding the exercise of a municipality's business powers is that the municipality has the power to make distinctions between citizens and firms on a wide variety of grounds. 7.4. Constitutional Considerations Slaight Communications Inc. v. Davidson, [1989] 1 SCR 1038 (at 987) f.: ∆ (R) had been employed by ∏ (A) as a "radio time salesman" for three and a half years when he was dismissed on the ground that his performance was inadequate. ∆ filed a complaint and an adjudicator appointed by the Minister of Labour under s. 61.5(6) of the Canada Labour Code held that ∆ had been unjustly dismissed. Based on s. 61.5(9)(c) of the Code, the adjudicator made an initial order imposing on ∏ an obligation to give respondent a letter of recommendation certifying (1) that he had been employed by the radio station from June 1980 to January 20, 1984; (2) the sales quotas he had been set and the amount of sales he actually made during this period; and (3) that an adjudicator had held that he was unjustly dismissed. The order specifically indicated the amounts to be shown as sales quotas and as sales actually made. A second order prohibited ∏ from answering a request for information about ∆ except by sending the letter of recommendation. The FCA dismissed an application by ∏ to review and set aside the adjudicator's decision. 61 i.: Whether s. 61.5(9)(c) of the Code authorizes an adjudicator to make such orders; whether the orders infringed ∏’s freedom of expression guaranteed by s. 2(b) Charter, and if so, whether the orders are justified under s. 1. a.: For ∆. Appeal dismissed. Adjudicator’s decision re-instated. Dickson CJC: (1) Just because a section in an Act has capacity to be invoked or used in ways that violate the Charter does not mean that section is constitutionally invalid (attack is on exercise of discretion in the particular circumstances). (2) Section 1 justifications can be advanced with respect to discretionary violations and not just statutory violations (effectively eliminates “prescribed by law” from s. 1). (3) Given the heavy burden on government to provide a s. 1 justification of the discretionary decision, once that onus is met no one can then argue that, notwithstanding the s. 1 justification, the exercise of discretion was patently unreasonable. 7.5. Unwritten Constitutional Considerations Lalonde v. Ontario (Commission de restructuration des services de sante) (2001), 56 OR (3d) 505 (CA) (at 1000) f.: ∆ ordered Montfort Hospital, the only francophone hospital in Ottawa, to downsize (as part of massive restructuring of health care services in Ontario). ∏ sought judicial review of this decision alleging that the order violated Ontario’s French Language Services Act (FLSA) and also an unwritten principle of the Constitution, that being the respect for and protection of minorities. ∏ successful at trial. ∆ appealed. i.: What is the relevance to Montfort of the unwritten constitutional principle of respect for and protection of minorities (from Reference re Secession of Québec)? Are the ∆ directions reviewable pursuant to the unwritten constitutional principle? Do the ∆’s directions violate the FLSA? a.: Appeal dismissed. Case remitted back to Minister. Weiler and Sharpe JJA.: The unwritten constitutional principle protecting minority interests is a normative consideration; this, together with the principles that apply to the interpretation of language rights, require that the FLSA be given a liberal and generous interpretation. By enacting the FLSA, Ontario bound itself to provide the services offered at Montfort at the time of designation under the Act unless it was "reasonable and necessary" to limit them. Ontario did not offer the justification that it was reasonable and necessary to limit the services offered in French by Montfort to the community. In fact it did not consider the minority interest at all. Therefore decision is subject to judicial review. Administrative Law Principles and Rules – Fall 2003 1. PROCEDURAL FAIRNESS.....................................................................................................................................4 1.1. DEVELOPMENT OF PROCEDURAL FAIRNESS...................................................................................................................4 Cooper v. Board of Works for Wandsworth District (1863), 143 ER 414 (Eng. CP)....................................................4 Nicholson v. Haldimand-Norfolk (Regional) Police Commissioners [ 1979] 1 SCR 311.............................................5 Knight v. Indian Head School Division No. 19 [1990] 1 SCR 653...............................................................................5 1.2. DECISIONS OF A LEGISLATIVE AND A GENERAL NATURE................................................................................................6 1.2.1. Cabinet and Cabinet Appeals......................................................................................................................6 Canada (AG) v. Inuit Tapirisat of Canada [1980] SCR 735.........................................................................................6 62 1.2.2. By-laws and Rule-making............................................................................................................................7 Homex Realty and Development Co. Ltd. v. Wyoming (Village) [1980] 2 SCR 1011.................................................7 1.2.3. Policy Making..............................................................................................................................................7 Bezaire v. Windsor RCSSB (1992), 9 OR (3d) 737 (Div. Ct.).....................................................................................8 Canadian Association of Regulated Importers v. Canada (AG) [1994] 3 FC 247 (CA)................................................8 1.2.4. Decisions Affecting Rights, Privileges, or Interests.....................................................................................8 Re Webb and Ontario Housing Corp. (1978), 93 DLR (3d) 187 (OCA).......................................................................8 Hutfield v. Board of Fort Saskatchewan General Hospital District No. 98 (1986), 24 Admin. LR 250 (Alta. QB)......9 Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817.........................................................10 1.2.5. Non-final (Investigative) Decisions...........................................................................................................11 Re Abel and Advisory Review Board (1979), 97 DLR (3d) 304 (Ont. Div. Ct.); affíd (1981), 119 DLR (3d) 101 (OCA)........................................................................................................................................................................11 Dairy Producersí Co-operative Ltd. v. Saskatchewan (HRC) [1994] 4 WWR 90 (Sask. QB)....................................11 Irvine v. Canada (Restrictive Trade Practices Commission) [1987] 1 SCR 181.........................................................12 Summary of Non-Final Decisions..............................................................................................................................13 1.3. PROCEDURAL FAIRNESS ARISING FROM LEGITIMATE EXPECTATIONS..............................................................................13 Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 SCR 1170.........................................................13 Reference re Canada Assistance Plan [1991] 2 SCR 525...........................................................................................13 Furey v. Roman Catholic School Board for Conception Bay Centre (1991), 2 Admin. LR (2d) 263 (Nfld. SCTD); rev’d at Nfld. CA........................................................................................................................................................14 Mount Sinai Hospital v. Quebec (Minister of Health and Social Services) [2001] 2 SCR 281...................................14 1.4. PROCEDURAL FAIRNESS AND THE CANADIAN BILL OF RIGHTS.......................................................................................15 NAPO v. Canada (AG) (1990), 60 DLR (4th) 712 (FCA)..........................................................................................15 Authorson v. Canada (AG) 2003 SCC 39...................................................................................................................15 1.5. PROCEDURAL FAIRNESS AND THE CHARTER................................................................................................................16 Paul v. BC (Forest Appeals Commission) 2003 SCC 55............................................................................................16 NS (Workerís Comp. Bd.) v. Martin 2003 SCC 54....................................................................................................16 Singh v. Canada (Minister of Employment and Immigration), [1985] 1 SCR 177.....................................................16 Wilson v. BC (Medical Services Commission) (1988), 53 DLR (4th) 171 (BCCA)...................................................17 Blencoe v. BC (HRC), [2000] 2 SCR 307..................................................................................................................18 2. CHOICE OF PROCEDURES................................................................................................................................20 Goldberg v. Kelly 397 US 254 (1970) (USSC)..........................................................................................................20 Mathews v. Eldridge 424 US 319 (1976) (USSC)......................................................................................................20 Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3..........................................................21 Statutory Powers Procedures Act (Ont.).....................................................................................................................22 3. SPECIFIC CONTENT ISSUES.............................................................................................................................22 3.1. PRE-HEARING ISSUES..............................................................................................................................................22 3.1.1. Notice.........................................................................................................................................................22 Re Hardy and Minister of Education (1985), 22 DLR (4th) 394 (BCSC)...................................................................23 Re Central Ontario Coalition and Ontario Hydro (1984), 10 DLR (4th) 341 (Ont. Div. Ct.)......................................23 R. v. Ontario Racing Commission, ex parte Taylor (1970), 15 DLR (3d) 430 (Ont. CA)...........................................23 Canada (AG) v. Canada (Commission of Inquiry on the Blood System in Canada ñ Krever Commission) [1997] 3 SCR 440.....................................................................................................................................................................23 3.1.2. Discovery...................................................................................................................................................24 Canadian Pacific Airlines Ltd. v. Canadian Air Line Pilots Association, [1993] 3 SCR 724......................................24 3.1.2.1. Documents in Possession of 3rd Party................................................................................................................24 Ontario (HRC) v. Ontario (Board of Inquiry into Northwestern General Hospital) (1993), 115 DLR (4th) 279 (Ont. Div. Ct.).....................................................................................................................................................................24 3.1.2.2. Documents in Possession of Decision-Maker (Tribunal)....................................................................................25 CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review Board), [1994] 3 FC 425 (CA)...............................25 3.1.3. Delay..........................................................................................................................................................25 Kodellas v. Saskatchewan (HRC) (1989), 60 DLR (4th) 143 (Sask. CA)...................................................................26 3.2. ORAL HEARINGS....................................................................................................................................................26 Masters v. Ontario (1994), 18 OR (3d) 551 (Div. Ct.)................................................................................................26 Khan v. University of Ottawa (1997), 35 OR (3d) 535 (CA)......................................................................................27 3.3. DISCLOSURE AND OFFICIAL NOTICE..........................................................................................................................28 3.3.1. Access to Agency Information....................................................................................................................28 Re Napoli and Workersí Compensation Board (1981), 126 DLR (3d) 179 (BCCA)..................................................28 63 3.3.2. Identity of Sources of Information.............................................................................................................28 Gallant v. Canada (Deputy Commissioner, Correctional Service Canada) (1989), 36 Admin. LR 261 (FCA)...........28 Gough v. Canada (National Parole Board) (1990), 45 Admin. LR 304 (FC TD)........................................................29 3.3.3. Commercially Sensitive Information..........................................................................................................30 Magnasonic Canada v. Anti-Dumping Tribunal, [1972] FC 1239 (CA).....................................................................30 3.3.4. Staff Studies................................................................................................................................................30 CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review Board), [1994] 3 FC 425 (CA)...............................30 Toshiba Corporation v. Anti-Dumping Tribunal (1984), 8 Admin. LR 173 (FCA)....................................................30 Trans-Quebec & Maritimes Pipeline Inc. v. National Energy Board (1984), 8 Admin. LR 177 (FCA)......................30 Re League for Human Rights of BíNai Brith and Commission of Inquiry on War Criminals (1986), 28 DLR (4th) 264 (FCA)..................................................................................................................................................................31 3.3.5. Official Notice............................................................................................................................................31 SPPA (s. 16)...............................................................................................................................................................31 Township of Innisfil v. Township of Vespra..............................................................................................................31 4. INSTITUTIONAL DECISIONS............................................................................................................................31 4.1. DECIDING WITHOUT HEARING..................................................................................................................................31 International Woodworkers of America, Local 2-69 v. Consolidated-Bathurst Packaging Ltd., [1990] 1 SCR 282...31 Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 SCR 952.............................................................33 Commentary by Mullan on Consolidated-Bathurst and Tremblay..............................................................................34 Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 SCR 221....................................................................34 Payne v. Ontario (HRC) (2000), 192 DLR (4th) 315 (Ont. CA).................................................................................35 5. BIAS AND LACK OF INDEPENDENCE............................................................................................................36 5.1. REASONABLE APPREHENSION OF BIAS.......................................................................................................................36 Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817.........................................................36 5.1.1 Pecuniary Bias............................................................................................................................................36 Energy Probe v. Canada (Atomic Energy Control Board) (1984), 15 DLR (4th) 48 FCA..........................................36 5.1.2. ACTING OUTSIDE STATUTORY AUTHORITY......................................................................................37 5.1.2. Acting Outside Statutory Authority...........................................................................................................37 Brosseau v. Alberta (Securities Commission), [1989] 1 SCR 301..............................................................................37 E.A. Manning Ltd. v. Ontario Securities Commission (1995), 125 DLR (4th) 305 (Ont. CA)...................................38 5.1.3. Institutional Bias Due to Internal Operational Choices ñ Court Intervention on C/L basis.....................38 2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool), [1996] 3 SCR 919...................................................38 5.1.4. Institutional Bias Due to Statute ñ Court Intervention on a Constitutional Basis.....................................39 MacBain v. Canada (Human Rights Commission) (1985), 22 DLR (4th) 119 (FCA)................................................39 5.1.5. Attitudinal Bias..........................................................................................................................................40 Paine v. University of Toronto, (1981), 131 DLR (3d) 325 (Ont. CA); rev’g. (1980), 115 DLR (3d) 461 (Ont. Div. Ct.).............................................................................................................................................................................40 Great Atlantic & Pacific Co. of Canada v. Ontario (HRC) (1993), 12 Admin LR (2d) 267 (Ont. Div. Ct.)................40 Large v. Stratford (City) (1992), 9 OR (3d) 104 (Div. Ct.).........................................................................................41 5.1.6. Variations in Standards.............................................................................................................................41 Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 SCR 1170.........................................................41 Save Richmond Farmland Society v. Richmond (Township), [1990] 3 SCR 1213.....................................................42 Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 SCR 623..43 5.2. LACK OF INDEPENDENCE/IMPARTIALITY.....................................................................................................................44 Sethi v. Canada (Minister of Employment and Immigration), [1988] 2 FC 552 (CA)................................................44 Alex Couture Inc. v. Canada (AG) (1991), 83 DLR (4th) 577 (Que. CA)..................................................................44 Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 SCR 3.................................................................................45 2747-3174 Quebec Inc. v. Quebec (Regi des permis díalcool), [1996] 3 SCR 919.....................................................46 6. STANDARD OF REVIEW.....................................................................................................................................47 Crevier v. Quebec (AG), [1981] 2 SCR 220...............................................................................................................47 CUPE, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 SCR 227...........................................................47 Union des employes de service, Local 298 v. Bibeault, [1988] 2 SCR 1048..............................................................48 6.1. DEVIATIONS FROM THE STANDARD OF REVIEW............................................................................................................49 Canada (AG) v. Mossop, [1993] 1 SCR 554..............................................................................................................49 64 United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 SCR 316.............................................................................................................................................................................50 6.2. EXTENDING DEFERENCE Ñ STATUTORY APPEALS.........................................................................................................51 Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 SCR 557..............................................................51 Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 SCR 748...............................................51 Law Society of New Brunswick v. Ryan, 2003 SCC 20.............................................................................................52 6.3. REINFORCING AND REARTICULATING THE MODERN STANDARD OF REVIEW.....................................................................53 CUPE, Local 301 v. Montreal (City), [1997] 1 SCR 793...........................................................................................53 Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982...........................................54 6.4. FOCUSING ON THE NATURE OF THE PROBLEM.............................................................................................................55 Trinity Western University v. BC College of Teachers, [2001] 1 SCR 772................................................................55 Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., [2001] 2 SCR 100.......................................56 7. REVIEW OF DISCRETION..................................................................................................................................57 7.1. APPLYING THE FUNCTIONAL AND PRAGMATIC APPROACH.............................................................................................57 Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817.........................................................57 Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3..........................................................58 7.2. WRONGFUL CONSIDERATIONS...................................................................................................................................58 CUPE v. Ontario (Ministry of Labour) 2003 SCC 29.................................................................................................58 Re Sheehan and Criminal Injuries Compensation Board, (1975), 52 DLR (3d) 728 (Ont. CA)..................................59 7.3. WRONGFUL PURPOSE..............................................................................................................................................60 Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 SCR 231.........................................................................60 7.4. CONSTITUTIONAL CONSIDERATIONS...........................................................................................................................61 Slaight Communications Inc. v. Davidson, [1989] 1 SCR 1038.................................................................................61 7.5. UNWRITTEN CONSTITUTIONAL CONSIDERATIONS..........................................................................................................62 Lalonde v. Ontario (Commission de restructuration des services de sante) (2001), 56 OR (3d) 505 (CA).................62 1. PROCEDURAL QUESTIONS...............................................................................................................................66 1.1. PROCEDURAL FAIRNESS...........................................................................................................................................66 1.1.1. C/L Dimensions..........................................................................................................................................66 1.1.1.1. Decisions That Garner No/Limited Procedural Fairness Rights..........................................................................67 1.1.1.2. Decisions That Garner Procedural Fairness Rights.............................................................................................67 1.1.2. Statutory Dimensions.................................................................................................................................68 1.1.2.1. Statutory Powers Procedures Act (Ontario)........................................................................................................68 1.1.3. Constitutional Dimensions.........................................................................................................................69 1.1.3.1. Canadian Bill of Rights.......................................................................................................................................69 1.1.3.2. Canadian Charter of Rights and Freedoms..........................................................................................................69 1.2. DUTY OF FAIRNESS Ñ SPECIFIC CONTENT ISSUES........................................................................................................70 1.2.1. Pre-Hearing Issues....................................................................................................................................70 1.2.1.1. Notice.................................................................................................................................................................70 1.2.1.2. Discovery............................................................................................................................................................70 1.2.1.3. Delay..................................................................................................................................................................71 1.2.2. Oral Hearings............................................................................................................................................71 1.2.3. Disclosure..................................................................................................................................................71 1.2.3.1. Agency Information............................................................................................................................................71 1.2.3.2. Source of Information.........................................................................................................................................72 1.2.3.3. Commercially Sensitive Information..................................................................................................................72 1.2.3.4. Staff Studies........................................................................................................................................................72 1.2.4. Official Notice............................................................................................................................................72 1.2.5. Deciding Without Hearing.........................................................................................................................73 1.2.5.1. Full Board Meetings...........................................................................................................................................73 1.2.5.2. Ability to Examine Board Members...................................................................................................................73 1.3. BIAS AND LACK OF INDEPENDENCE...........................................................................................................................73 1.3.1. Reasonable Apprehension of Bias..............................................................................................................73 1.3.1.1. Presence of Bias..................................................................................................................................................74 1.3.2. Institutional Impartiality............................................................................................................................75 1.3.3. Institutional Independence.........................................................................................................................75 2. SUBSTANTIVE QUESTIONS...............................................................................................................................76 65 2.1. STANDARD OF REVIEW............................................................................................................................................76 2.1.1. Pre-Pushpanathan.....................................................................................................................................76 2.1.2. Deviations from the Standard....................................................................................................................76 2.1.3. Extending Deference..................................................................................................................................77 2.1.4. Pragmatic and Functional Approach ñ Pushpanathan.............................................................................77 2.2. REVIEW OF DISCRETION...........................................................................................................................................78 2.2.1 The P&F Approach (Case Studies).............................................................................................................78 2.3. CONSTITUTIONAL DIMENSIONS..................................................................................................................................80 2.4. UNWRITTEN CONSTITUTIONAL PRINCIPLE OF PROTECTION OF MINORITIES.......................................................................80 1. Procedural Questions 1.1. Procedural Fairness – principles of procedural fairness and natural justice: (i) audi alteram partem (listen to the other side) and (ii) unbiased, independent decision-maker. 1.1.1. C/L Dimensions From Knight/Baker, 5 factors to determine if the initial threshold for procedural protections are met: (1) Nature of interest at stake – a more serious interest (personal liberty, property, Charter right) requires greater protection. (2) Circumstances under which authority may take action – less protection where decisions are polycentric, discretionary and policy-based, than trial-type “Who did what to whom” questions. (3) Character of decision-maker – general no protection for Ministerial, legislative, preliminary decision makers. (4) Seriousness of consequences – the degree of the loss (complete as opposed to partial) (5) Statutory indicia – does the statute indicate greater procedures? Ability to appeal may preclude a hearing at first instance (Nicholson) while lack of an appeal may oblige greater protections (Baker). From Baker, must first consider 5 factors to determine the content of duty of fairness: (1) Nature of the Process – closeness of administrative process to judicial process indicates degree of duty (e.g. "Who did what to whom?" judicial application of law to facts as opposed to policy-related, polycentric and discretionary decisions); (2) Nature of the Statutory Scheme – i.e. legislative indicia (e.g. purpose of Act, presence or absence of appeal); (3) Importance of Decision to Individual(s) Affected – serious interest, large impact of loss of interest indicative of greater procedural protections; (4) Legitimate Expectations – for certain procedures or results create extensive procedural rights, but not substantive rights; 66 (5) Choices of Procedure by Agency – do the procedures already in place satisfy the requirements for procedural fairness? Context will often determine the extent of the procedural rights: hearings (written or oral) and requirement of reasons for decision (Baker at 9) After Nicholson, no need to distinguish between judicial, quasi-judicial and administrative processes in determining requirements for procedural fairness, but some processes left open to require no fairness at all. In the subsequent jurisprudence (e.g. Dickson J. in Martineau), it was made clear that only where the old classification process had been enshrined in statute should the courts continue to differentiate between judicial and quasi-judicial functions, on the one hand, and administrative functions on the other. (The threshold for the application of the Ontario SPPA can be seen as an example of where traditional classification is still necessary - Webb) 1.1.1.1. Decisions That Garner No/Limited Procedural Fairness Rights: • Legislative decisions (Martineau, Knight at 4); o reassigning students within a school board (Vanderkloet at 7); o applying for qualified right of subsidized housing (Webb) (“privilege” seeker); o no legitimate expectation to prevent Parliament from introducing legislation (re Canada Assistance Plan at 12) • Ministerial decisions on broad grounds of public policy (Martineau); o GIC decision on polycentric problem (Inuit Tapirisat at 6); o setting of quota policy for chickens (Canadian Association of Regulated Importers at 7); o no legitimate expectation to prevent Parliament from introducing legislation (re Canada Assistance Plan at 12) • Preliminary/non-final decisions (Knight at 4); o investigative decisions that do not affect rights (Dairy Producers’ at 11) o investigation into unlawful trade practices (Irvine at 11) 1.1.1.2. Decisions That Garner Procedural Fairness Rights: • Decisions affecting individual rights and property (Cardinal); o Municipality with statutory power to destroy a house (Cooper at 4) o refusing to accept K renewal for director of education (office holder at pleasure) (Knight at 4) o firing of police constable on probation (office holder at pleasure) (Nicholson at 4) o municipal by-law de-registering subdivision plan as quasi-judicial (Homex at 6); o individual chicken quota decisions (Canadian Association of Regulated Importers at 7); o eviction from qualified right of subsidized housing (Webb at 8); o applying for permanent residence status (Baker at 9) (“privilege seeker”); o applying for hospital privileges with strong statutory indicia supporting fairness (Hutfield at 8) (“privilege seeker”); o investigative decisions that affect rights (Dairy Producers’ at 11) 67 o termination of welfare payments (U.S. Goldberg at 19 but see Mathews at 20 for limits on procedural fairness for termination of disability benefits) • Specific administrative decisions (Knight at 4); o school closings with statutorily authorized procedural guidelines (Bezaire at 7); • Final decisions (Knight at 4; Hutfield at 8); o applying for hospital privileges with strong statutory indicia supporting fairness (Hutfield at 8) (“privilege seeker”); o close proximity between investigative decision and final decision (Re Abel at 10) • Legitimate expectations o Where (1) representations; (2) past practice and (3) nature of the interest at stake create an opportunity to make representations to a public official in circumstances in which there otherwise would be no such opportunity (Old St. Boniface at 12) o Where a previous Minister said that if a hospital moved it would have its license renewed and where a new Minister made a patently unreasonable decision to deny the license (Mount Sinai Hospital at 14) o no legitimate expectation to prevent Parliament from introducing legislation (re Canada Assistance Plan at 12) o no legitimate expectations from wording of Convention (Baker) • Public Law Estoppel o Estoppel may be available against a public authority, but the requirements for it go well above those for legitimate expectations. The claimant must establish reliance on the representation and that he acted on it or in some way changed his position. However, must be sensitive to factual and legal context. If statutory decision maker has high status and broad power, estoppel will not apply (Mount Sinai Hospital at 14) 1.1.2. Statutory Dimensions 1.1.2.1. Statutory Powers Procedures Act (Ontario) (at 21) (1) Prevails over all other Acts (prior and subsequent) unless express legislative override (s. 32) (2) Application: (i) to a proceeding of a tribunal in exercise of statutory power of decision conferred by or under an Act of Legislature (primary and subordinate (regulations) legislation) that requires tribunal to hold a hearing [s. 3(1)] (ii) tribunal requires a hearing “otherwise by law” (C/L – prior to Nicholson) [s. 3(2)]. (3) If tribunal’s rules made under s. 25.1 deal with pre-hearing conferences, the tribunal may direct the parties to engage in such conferences [s. 5.3(1)] (4) If tribunal’s rules made under s. 25.1 deal with disclosure, the tribunal may order for (a) the exchange of documents, (b) oral/written examination of a party, (c) exchange of witness statements, (d) provision of particulars, (e) any other form of disclosure, at any time before hearings are complete [s. 5.4(1)] (5) Where good character of party is in issue, party is entitled to reasonable info regarding allegations prior to the hearing [s. 8]. 68 (6) A tribunal may take judicial notice facts [s. 16] (7) A tribunal must give written reasons for a decision if requested by any party [s. 17(1)] (only apply Baker if SPPA does not apply). (8) S. 25(1) – an appeal from a decision of a tribunal to a court operates as a stay in the matters unless tribunal says otherwise or unless there is a provision in the empowering Act that states that an appeal does not act as a stay. S. 25(2) – An application for judicial review is not considered an appeal under s. 25(1). Must then make an application to the court for a stay of the proceedings. (9) A tribunal has the power to determine its own procedures and make rules governing the practice and procedures before it [s. 25.1] 1.1.3. Constitutional Dimensions 1.1.3.1. Canadian Bill of Rights – S. 1(a) provides for observance of "due process of law" when the right to "life, liberty, security of person and the enjoyment of property" is at stake. S. 2(e) calls for a "fair hearing" in accordance with the "principles of fundamental justice" whenever a person's "rights and obligations" are being determined. • S. 2(e) of the BOR does not apply to the GIC (Cabinet) decisions (NAPO at 14) • S. 2(e) applies to the human rights process (McBain at 38) • S. 1(a) of the BOR only provides procedural rights (notice and representations) with regards to the right of enjoyment of property only in context of adjudication of such rights before a court/tribunal, but not where government unambiguously legislates to completely eliminate such rights. S. 2(e) only guarantees the fundamental justice of proceedings before any court/tribunal/administrative body that determines individual rights and obligations; it does not apply to Parliament while it is enacting legislation. The BOR does not provide substantive rights. (Authorson at 15) 1.1.3.2. Canadian Charter of Rights and Freedoms – s. 7 provides that no one will be deprived of “life, liberty or security of the person” unless in accordance with the principles of fundamental justice. • s. 7 of the Charter has both procedural and substantive guarantees (Re BC Motor Vehicle Act). It entitles one to know the case to be met (Singh at 16, Suresh at 20), to make written submissions (Suresh at 20) [orally where credibility is in issue – Singh at 16], and to receive reasons (Suresh at 20). • Administrative tribunals can determine constitutional issues within their jurisdiction (Paul, Martin at 16) • “Life, liberty and security of the person” are 3 distinct and separate interests and each must be given meaning. “Security of the person” must encompass freedom from the threat of physical punishment or suffering as well as freedom from actual punishment/suffering. To deny a refugee convention status when there is a threat to one’s life or freedom if deported from Canada is a deprivation of security of the person. To deny access to Ministerial policies and information concerning a refugee’s application for Convention status, when the applicant must demonstrate that the Minister was wrong in denying such status, makes one unable to know the case to be met, which accordingly this violates fundamental justice. Administrative convenience is not a justifiable s. 1 limit to the rights under s. 7. (Singh at 16) • “Security of person” engaged when there is state interference with bodily integrity (criminal sanction) and serious state-imposed psychological stress (e.g. regulating 69 abortion– Morgentaler [1988]). Two requirements: (1) the psychological harm must be state imposed; (2) psychological prejudice must be serious. S. 7 does not create a constitutional right to dignity, however human dignity/reputation is an underlying value that must guide the courts in interpreting the Charter. (Blencoe at 17) • “Liberty” is engaged in narrow circumstances where state compulsion/prohibitions affect important and fundamental life choices that go to the core what it means to enjoy individual dignity and independence (ex. Parental decisions regarding medical care for their children [B(R)]; where a municipal worker can establish his/her home [Godbout]; the custody of children [G(J)]; right to choose one’s occupation and where to pursue it [Wilson at 17 – now of questionable authority]). This does not include economic liberty or economic security (Blencoe at 17) • Where a Convention refugee has made a prima facie case of risk of torture upon deportation – entitled to the following procedures in accordance with his/her right of fundamental justice under s. 7 of the Charter: 1. ∏ must be know case to be met. This includes material which Minister bases decision on (subject to reduced disclosure for safeguarding confidential public security documents); 2. There must be an opportunity to respond to the case presented by the Minister. Written submissions must be accepted from the subject of the Minister’s order after the ∏ has been provided with an opportunity to examine the material being used against him; 3. Minister must then consider the submissions and provide written reasons for decision. They must rationally sustain a finding that there are no substantial grounds to believe that ∏ will be subject to torture, execution or other cruel/unusual punishment if deported. Minister must also outline, subject to valid legal reasons for non-disclosure, why the refugee is a danger to the security of Canada. The Minister must make the written decision herself. (Suresh at 20) 1.2. Duty of Fairness – Specific Content Issues 1.2.1. Pre-Hearing Issues 1.2.1.1. Notice – (1) problems about form, (2) problems about the manner of service, (3) problems about time, (4) problems about the contents. • Where there are indefinite interested parties, public notice (in newspapers of wide circulation) is required (Re Hardy at 22); However the notice must be clear enough that the majority of those who may be affected are effectively made aware (Re Central Ontario Coalition at 22). Notice of hearing must be given far enough in advance to allow time to prepare. The content of a notice must provide sufficient information to indicate to the party served what is at stake at the hearing (Ontario Racing Commission at 22) • Regarding Commissions of Inquiry, notices should be as detailed as possible, even if content appears to amount to a finding that would exceed jurisdiction of Commissioner (this limit only applies to final report). There is no statutory requirement that Commissioner give notice as soon as foresee possibility of allegation of misconduct. Where evidence is extensive/complex, may be impossible to give notice before end of hearings, and vice versa. So long as adequate time is given to make submissions in response to notice, delivery of notices late in hearings will not constitute unfair procedure. (Krever Commission at 22) 1.2.1.2. Discovery 70 • SCC ruled that Canada Labour Code did not empower Labour Relations Board to order pre-hearing discovery (Canadian Pacific Airlines at 23) • SPPA s. 5.4(1) allows full disclosure only if tribunal has established rules under s. 25.1. • Apply criminal rules of Stinchcombe to Ontario HR tribunals – full disclosure of Board of Inquiry’s pre-hearing discovery justified to eliminate element of surprise and since fruits of investigation are public property (Northwestern General Hospital at 23) • However, tribunal that has an economic regulatory function (in the public interest) that does not affect human rights in a way akin to criminal proceedings will only need to provide information such that accused can meet its case if, in pursuing its mandate, the board/tribunal is required to receive confidential information from its staff/investigators (CIBA-Geigy at 24) 1.2.1.3. Delay • In determining whether a delay is so unreasonable as to breach a duty of fairness, but consider and weigh the following factors to determine if there has been an “unreasonable delay” in context of s. 7 of the Charter: (1) whether delay is prima facie unreasonable, having regard of time requirements inherent to such proceedings; (2) reason/responsibility for delay – conduct of complainants, Commission, alleged discriminator; inadequacy of resources; (3) prejudice caused to alleged discriminator by delay (adapted from SCC decision in Rahey) (Kodellas at 25) • There must be proof of significant prejudice which results from the delay for there to be a C/L remedy. It must be a delay that has caused significant psychological harm to a person, or attached a stigma to a person’s reputation such that the HR system would be brought into disrepute. Whether delay results in breach of duty of fairness depends on nature of case, facts and issues, purpose and nature of proceedings, whether Π contributed to delay; contextual factors, like nature of the various rights at stake, must also be considered to determine if community’s sense of fairness would be offended by delay. (Blencoe at 17) 1.2.2. Oral Hearings • Recall that a claim for an oral hearing is highest when credibility is an issue in the proceedings (Wilson in Singh at 16), and also when BOR or Charter is invoked (Beetz in Singh at 16; Suresh at 20). • In employment context, must look at nature of employment, the nature of the decision (broad policy or individualistic), nature of investigatory procedures (e.g. reliance on directives), and availability of opportunity to make representations. o Where someone is an office holder at pleasure who has the ability to respond in writing, an oral hearing is not required (Masters at 26) o A university law student, whose credibility is in issue concerning whether she wrote a 4th exam booklet, is entitled to an oral hearing (Khan at 26) 1.2.3. Disclosure 1.2.3.1. Agency Information 71 • Rules of natural justice apply to proceedings before the WCB and Commissioners and require full disclosure of the contents of a worker’s file (medical files included). (Re Napoli at 27) 1.2.3.2. Source of Information • In circumstances where application of rules of procedural fairness would endanger the lives of informants, the obligation of those rules to give more detailed notice do not apply. It is sufficient to provide the ‘gist’ (or outline) of the accusations against an inmate. (Gallant at 28) • However a parolee on the least restrictive form of parole is entitled, under s. 7 principles of fundamental justice, to disclosure of information relied upon in a decision to revoke his/her parole (not simply the ‘gist’ of the allegations), unless there is ample evidence justifying the restriction under s. 1 that disclosure would reveal the identity of the informers or that there was a probability that their safety would be threatened, or that the parole system would be undermined (Gough at 28) 1.2.3.3. Commercially Sensitive Information • Where disclosure requires the release of commercially sensitive information, it will be disclosed to an outside expert who will assess the information in confidence (Canadian International Trade Tribunal Act at 29) 1.2.3.4. Staff Studies • tribunals exercising economic regulatory function in public interest that do not affect human rights in a way akin to criminal proceedings are entitled to benefit of confidential communication with staff (CIBA-Geigy at 30) • staff papers prepared for a board/tribunal prior to hearing need not be disclosed. However, if information in staff papers (made prior to a hearing) is available to decision makers and is not brought forward in another form at tribunal, principles of procedural fairness are breached (Toshiba Corporation, Trans-Quebec & Maritimes Pipeline Inc. at 30) • A report that would clearly be relied upon and given significant weight by the Commission in determining whether there were legal means to bring suspected war criminals to justice in Canada was required to be disclosed (War Criminals Commission at 30). 1.2.4. Official Notice • SPPA (s. 16) – incorporates into rules of tribunal proceedings (a) the rules of judicial notice; (b) allowance of tribunal to take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge [expectation of panel members to apply ‘wisdom’ of their expertise]. • When OMB takes judicial notice it should be obliged to inform the parties that it will be doing so and allow a response (Township of Innisfil – Ont. Div. Ct. at 30) • Refugee Division to take notice of facts, information or opinion, other than facts that may be judicially noticed, in any proceedings as long as it notifies the Minister and the person subject to the proceedings (Immigration Act s. 68(5) at 30) 72 1.2.5. Deciding Without Hearing 1.2.5.1. Full Board Meetings • The rules of natural justice are not violated if an adjudicator who heard evidence speaks with others who did not hear evidence (non-hearers) so long as: (1) the discussions do not induce him/her to decide against his/her own conscience or opinion. (2) the discussions with non-hearers focus on policy or legal issues surrounding the case; but is violated if discussions focus on factual issues surrounding the case, and any new evidence or grounds raised in discussions with non-hearers are (i) not reported to the parties and (ii) are not given a chance to respond. (Bathurst at 31) • No Violation of Natural Justice o Where a Labour Relations Board meets as a full Board to discuss broad policy implications of panel decisions (there is no voting and no minutes taken) and there is no evidence that facts were discussed or that the discussions induced panel members to decide against their will (Bathurst at 31) o A change in reasons for a decision is not evidence that the full Board discussed questions of fact and not questions of law or policy (which, on its face, was shown in evidence). Without further evidence, must presume administrative regularity. (Ellis-Don at 33) • Violation of Natural Justice o Where there is compulsory consultation in the form of ‘consensus tables’ called by the President or legal counsel (when a decision is contrary to previous decisions of Board) the purpose of which is to come to a consensus on a decision by commissioners (voting by show of hands, minutes kept) and President invites commissioners to reconsider their decision. (Trembley at 32) 1.2.5.2. Ability to Examine Board Members • Cannot examine Labour Board members because such a practice would cause a chilling effect on institutional consultations, and the removal of a means of achieving consistency in decisions. (Ellis-Don at 33) • In HR tribunal context, the right to conduct the examination of tribunal members had to be balanced against the principle of deliberative secrecy. A HRC that deliberates in the presence of non-members (staff), rather than in private, are more exposed to judicial review. Examination allowed but scope limited to a ground justifying judicial review. (Payne at 34) 1.3. Bias and Lack of Independence 1.3.1. Reasonable Apprehension of Bias Test for bias – More flexible approach to bias in an administrative setting (Energy Probe at 36). Apply the 5 Baker factors to determine the degree of bias that is acceptable in the specific context of the administrative agency. Then ask: “would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. (Committee for Justice and Liberty). • A reasonable apprehension of bias on the part of anyone who played a significant role in the actual deportation decision under the Immigration Act would lead to a quashing of the relevant decision (Baker at 35). May apply to other tribunals? 73  In order for there to be an apprehension of bias attributed to members of an elected Municipal Council (Old St. Boniface at 40, Save Richmond at 41) or a Board which performs a policy-formation function (Nfld. Telephone at 41) it must be shown that the member had a “closed-mind” incapable of persuasion.  Statements manifesting a closed mind, even at the investigatory stage, constitute a basis for raising apprehended bias. Once the matter reaches the hearing stage a higher standard must apply (e.g. no apprehension of bias) (Nfld. Telephone at 41). 1.3.1.1. Presence of Bias  Basing a deportation decision on irrelevant factors (∏ being single mother of many children; was psychologically ill and therefore would be a burden to Canada) while not considering relevant factors (doctor indicated ∏ would be productive member of society with treatment) raises a reasonable apprehension of bias (Baker at 35).  The appearance of influence of other Board members during a “consensus meeting”, as well as having the Board President first recommend to the commissioners to reconsider their decision and then become the decision maker himself, creates an apprehension of bias (Trembley at 32)  Where the operational structure of a tribunal allows jurists to act both as prosecutor and adjudicator, and allows a director to act both as investigator and adjudicator, a reasonable apprehension of bias is justified (Quebec Regie at 37)  Requiring a HR commission, by statute, to “prove” a complaint before selecting the members of a tribunal who will consider whether the complaint was “proven” raises an apprehension of bias. Empowering a commission, by statute, to select the members of a decision-making tribunal which will hear a case in which the commission itself will be the prosecutor raises an apprehension of bias; both are contrary to s. 2(e) of the BOR (“determination” of “obligations” within “principles of fundamental justice”). (MacBain at 38)  A reasonable apprehension of bias arises when an individual who is an appointed adjudicator for a Commission becomes a personal party to a complaint pending in the same Commission. (Great A&P Co. at 39)  If Municipal councillor has a private interest in a matter, that person is disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that it might influence the exercise of that duty (Old St. Boniface at 40) 1.3.1.2. Absence of Bias  A board member with a potential pecuniary interest in the approval of a nuclear plant license is not disqualified. There must be a real connection between the board decision and the interest of the member (Energy Probe at 35)  Where a statute authorizes a Chairmen of a Securities Commission to act as both an investigator and adjudicator (which normally gives rise to bias) there is no bias absent a constitutional objection (Brosseau, E.A. Manning at 36)  An apprehension of bias against some Commissioners of a Securities Commission does not lead to the “corporate taint” of other Commissioners, who are presumed, in the absence of any evidence to the contrary, to act fairly and impartially in discharging their adjudicative responsibilities (E.A. Manning at 36) 74  For there to be disqualifying bias of a Tenure Committee on which sat a member who submitted an unfavourable assessment of a candidate, the candidate must demonstrate “manifest unfairness” or “flagrant violations of procedural fairness.” (Paine at 39)  A Board chair may take a public position on a public issue related to the nature of the Board so long as it is not an issue immediately before the Board. (Large at 40)  A Municipal Alderman who says publicly that it would take “something significant” to change his mind on a re-zoning issue does not have a closed mind (Save Richmond at 41) 1.3.2. Institutional Impartiality A lack of impartiality at the institutional level can be raised if a reasonable apprehension of bias arises in the mind of a fully informed person in a substantial number of cases (Matsqui at 43)  Two-step test: (1) having regard for a number of factors, but not limited to, the nature of the occupation and the parties who appear before this type of judge, will there be a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases? (2a) If no, allegations of bias cannot be brought at an institutional level but must be dealt with on case-by-case basis. (2b) If yes, the occupation is per se incompatible with the function of the judge – but must consider the sufficiency of safeguards to minimize such prejudicial effects to determine if they meet the guarantee of impartiality under s. 11(d). (Alex Couture Inc. at 43) o The fact that Native Band members serving on appeal tribunals assessing taxation by-laws does not raise an apprehension of institutional bias. An apparent pecuniary interest these members may have in increasing Band revenues is too remote (Lamer CJC: Matsqui at 43) 1.3.3. Institutional Independence Test for lack of independence – what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude (Alex Couture Inc. at 43)  Three conditions must be met – (1) Security of tenure (against interference by executive or other appointing authority in an arbitrary manner – most important), (2) Financial security (against arbitrary interference by the executive) and (3) Institutional independence with respect to administrative decisions bearing directly on the exercise of judicial functions (independence from government). (Alex Couture Inc. at 43) o The introduction of a Bill that will dissolve the Immigration Appeal Board (IAB) and replace it with the Immigration and Refugee Board (IRB), and thus create job insecurity for IAB members, does not create a lack of independence of IAB members since no informed, right minded person would conclude that members of IAB would think that rejecting applications would please the government (and ensure they are re-hired to the IRB) (Sethi at 42)  The essential conditions of institutional independence in the judicial context need not be applied with the same strictness in the case of administrative tribunals. Conditions of institutional independence must take into account their operational context. The reasonable person, before making a determination of whether or not he or she would have a reasonable apprehension of a lack of institutional independence, should have the benefit of knowing how the tribunal operates in actual practice (Sopinka J.: Matsqui at 43).  Security of tenure does not require appointment for life. Fixed-term appointments, which are common, are acceptable. However, the removal of adjudicators must not simply be at 75 the pleasure of the executive – dismissal by executive for certain reasons, along with right to contest wrongful dismissal in court are satisfactory. Large number of points of contact between the board and the executive does not raise a reasonable lack of institutional independence so long as decision making lies with the board. The fact that a Minister is ultimately responsible for the Board does not infringe institutional independence (Quebec Regie at 45)  NOTE: Tenure, salary, administration are guidance points to determining independence or impartiality and that lack of one may not necessarily be fatal for the tribunal. 2. Substantive Questions 2.1. Standard of Review 2.1.1. Pre-Pushpanathan  Judicial review for jurisdictional error is a constitutional guarantee. Interpretation of ss. 96-101 the Constitution Act, 1867: given the necessity of an independent/impartial judiciary, there is little point in having that if Parliament can empower a tribunal to become the final arbiter of its jurisdiction, which was, at the time of Confederation, the role of the superior courts. This applies to the provinces, and in subsequent jurisprudence to the federal government (Crevier at 45)  Examples of jurisdictional error include: acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into account, breaching the provisions of natural justice or misinterpreting the provisions of the Act so as to embark on an inquiry or answer a question not remitted to it (New Brunswick Liquor at 46)  Must ask "Did the legislator intend such a matter to be within the jurisdiction conferred on the tribunal?” Now use pragmatic and functional analysis. First stage of the analysis involves determining the tribunal's jurisdiction. To do this, Court examines (1) wording of the enactment conferring jurisdiction on the administrative tribunal, (2) purpose of the statute creating the tribunal, (3) the reason for its existence, (4) the area of expertise of its members and the (5) nature of the problem before the tribunal (Bibeault at 46) 2.1.2. Deviations from the Standard 76  When tribunals are acting under a privative clause the SCC has limited the power of review to cases of patent unreasonableness (Nipawin). Where there is no privative clause, deference will be given on questions of law only to certain specialized tribunals. HR tribunals are not such specialized tribunals, therefore deference will only be given to questions of fact, not law (Mossop at 47)  Where the relevant provision is a true privative clause, judicial review is limited to errors of jurisdiction resulting from an error in interpreting a legislative provision limiting the tribunal's powers or a patently unreasonable error on a question of law. Other forms of clauses may also have privative effect. Wording such as "final and conclusive" may be found to restrict review to matters of jurisdiction if the court concludes that the legislator clearly intended that the decision should be immune from review in the absence of an error as to jurisdiction. In this analysis a court should consider the clause in light of the (1) purpose, (2) nature and (3) expertise of the tribunal in question (Bradco at 48) 2.1.3. Extending Deference  Where there is a specialized tribunal that is deciding a question of law on a matter that goes to the core of its expertise (e.g. securities commission interpreting the Securities Act), significant deference should be granted to its decisions notwithstanding the facts that there was a statutory right of appeal and that there was no privative clause (Pezim at 49). Note this was prior to introduction of standard of reasonableness simpliciter.  Standard of reasonableness simpliciter - A standard more deferential than correctness but less deferential than "patently unreasonable" is required when several considerations, including particularly the expertise of the Tribunal, counsel deference while others suggest a more exacting form of review (no privative clause, right to appeal). An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable. (Southam at 50)  There are only three standards for judicial review of administrative decisions: correctness, reasonableness simpliciter and patent unreasonableness. Additional standards should not be developed unless there are questions of judicial review to which the three existing standards are obviously unsuited. The P&F approach will determine, in each case, which of these three standards is appropriate. The reasonableness standard does not float along a spectrum of deference such that it is sometimes quite close to correctness and sometimes quite close to patent unreasonableness – were this so it would require that the court ask different questions of the decision depending on the circumstances (Ryan at 51)  Satisfying reasonableness simpliciter: If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere. This means that a decision may satisfy the standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling. (Ryan at 51) 2.1.4. Pragmatic and Functional Approach – Pushpanathan at 53 77 P&F approach for determining standard of review. Consider the following factors: (1) Presence/absence of legislative indicia: presence of full privative clause compels court to show deference to tribunal’s decision, unless other factors show to contrary. Less than full clauses mean less deference. Presence of appeal compels court to show less deference; (2) Expertise of the agency: most important factor. It is relative concept. Court must characterize expertise of tribunal; it must consider its own expertise relative to tribunal; it must identify nature of specific issue before tribunal relative to this expertise. High relative expertise suggests higher deference even on generalized interpretation of tribunals empowering statute; (3) Purpose of Act and of Provision: where purpose of statute and decision maker are focused on delicate balancing between different constituencies (polycentricity) and not establishing rights between parties, more deference. Where issues dealt with are less strictly “legal” and more in line with policy, more deference; (4) Nature of problem: generally less deference on questions of law rather than fact. 2.2. Review of Discretion • C/L grounds of judicial review for abuse of discretion are: decision maker acted in bad faith, wrongfully delegated its powers, fettered its discretion by laying down a general rule and not responding to individual situations, or acted under the dictation of another. • More common grounds are when an agency has exercised discretion to achieve a purpose not contemplated by its grant, or when irrelevant factors are considered or relevant factors are excluded (e.g. considering fact that woman is single mother with many children, has mental disorder and is likely a burden on society are patently irrelevant factors in assessing an application for permanent residence – Baker; not considering expertise and experience when appointing individuals to be labour arbitrators is a patently unreasonable decision – CUPE v. Ontario; factors in Re Sheehan at 58 are not patently irrelevant) • Can apply the P&F approach to discretionary decisions, but must not engage in a re- weighing of the factors considered (Baker, Suresh at 56) 2.2.1 The P&F Approach (Case Studies) (1) Presence/absence of legislative indicia:  Strong privative clause – deference (New Brunswick Liquor at 46); (CUPE v. Montreal at 52); CUPE v. Ontario at 57; o The words “final settlement” in conjunction with statutory purpose promoting privative nature of labour decision – deference (Bradco at 48)  Weak privative clause – less deference (Mattel at 55)  No privative clause – less deference (Southam at 50; Pushpanathan at 53; Trinity at 54; Baker at 56;) Exception: see Pezim at 49 (note prior to standard of reasonableness simpliciter in Southam)  Right of appeal – less deference: Pushpanathan at 53; Mattel at 55; Exception: see Pezim at 49 (note prior to standard of reasonableness simpliciter in Southam); Ryan at 51.  Absence of appeal – deference 78  Appeal only with leave – deference (Suresh at 56) (2) Expertise of the agency (most important factor – Southam at 50): Deference  “Field sensitivity” with experience can lead to more expertise (Mossop at 47)  Interpretation/application of collective agreement to facts by labour arbitrator (Bradco at 48)  Interpretation of Securities Act by Securities Commission (Pezim at 49)  Competition Tribunal (Southam at 50)  Labour Council applying appropriate remedies under the Labour Code (CUPE v. Montreal at 52)  Canadian International Trade Tribunal expertise in some economic, trade or commercial matters (Mattel at 55)  Minister as decision maker (Baker, Suresh at 56); (CUPE v. Ontario at 57) Less Deference  IRB with less than 10% lawyers deciding if an applicant is a Convention (Pushpanathan at 53)  College of Teachers not only policy makers and have no expertise to interpret HR and balance competing interests (Trinity at 54) (3) Purpose of Act and of Provision: Deference  Polycentric balance of interests o The goal of mandatory arbitration is to arrive at an efficient and cost-effective manner of resolving disputes (Bradco at 48) o Balancing the right to strike under the Labour Code with the service entitlements in HR and social legislation (CUPE v. Montreal at 52)  Application of broad legal legal principles to “exempt” someone from a provision of the Immigration Act pertaining to the application for permanent residence (Baker at 56)  Complex commercial/economic issues in Competition Act (Southam at 50)  Regulation of lawyers in NB Law Society Act (Ryan at 51)  Where Immigration Act requires humanitarian balancing of the danger posed to Canadians and the danger of persecution upon deportation (Suresh at 56)  Ensuring that public schools develop civic and responsible citizenship and create an environment free of bias, prejudice and intolerance under the Teaching Profession Act (Trinity at 54)  Determining duties on imported goods under Customs Act (Mattel at 54)  Fundamental purpose and object of HLDAA was to provide an adequate substitute for strikes and lock-outs and to ensure the parties perceive the system as neutral and credible (CUPE v. Ontario at 57) 79 Less Deference  Decision that affects individual rights (Baker at 56)  IRB not engaged in any significant policy making (Pushpanathan at 53)  Municipal procurement decision that focuses on influencing political events outside its geographical boundaries (apartheid South Africa) contrary to purpose of Municipal Act (Shell Canada at 59) (4) Nature of problem:  Question of fact – deference to: HR tribunals (Mossop at 47); Law Society Discipline Committee (Ryan at 51); Minister making decision on humanitarian & compassionate grounds (Baker at 56); Minister deciding whom to appoint as labour arbitrators (CUPE v. Ontario at 57)  Question of law – no deference to: Labour tribunal interpreting the Civil Code concept of ‘alienation’ (Bibeault at 46); HR tribunals (Mossop at 47); IRB answering “serious question of law” (Pushpanathan at 53); College of Teachers applying HR values and principles (Trinity at 54); International Trade Tribunal deciding interpreting commercial law (Mattel at 54)  Question of law – deference to: certain specialized tribunals (Mossop at 47) o e.g. securities commission (Pezim at 49);  Question of fact & law – deference to Labour Council where issue fall within their expertise (CUPE v. Montreal at 52). 2.3. Constitutional Dimensions (1) Just because a section in an Act has capacity to be invoked or used in ways that violate the Charter does not mean that section is constitutionally invalid (attack is on exercise of discretion in the particular circumstances). (2) Section 1 justifications can be advanced with respect to discretionary violations and not just statutory violations (effectively eliminates “prescribed by law” from s. 1). (3) Given the heavy burden on government to provide a s. 1 justification of the discretionary decision, once that onus is met no one can then argue that, notwithstanding the s. 1 justification, the exercise of discretion was patently unreasonable (Slaight at 60) 2.4. Unwritten Constitutional Principle of Protection of Minorities The unwritten constitutional principle protecting minority interests is a normative consideration; this, together with the principles that apply to the interpretation of language rights, require that the FLSA be given a liberal and generous interpretation. By enacting the FLSA, Ontario bound itself to provide the services offered at Montfort at the time of designation under the Act unless it was "reasonable and necessary" to limit them. Ontario did not offer the justification that it was reasonable and necessary to limit the services offered in French by Montfort to the community. In fact it did not consider the minority interest at all. Therefore decision is subject to judicial review. (Lalonde at 60) 80 81