Availability of Judicial Review

 1) Public/Private
o Central Question: “Machinery of Government?”  CONSIDER non-exhaustive factors below:
 Function/Duties
 Source of Power
 Government Control
 If actor did not exist, then would government have to occupy the field?
o Private bodies may acquire a public flavour.
 Stock exchanges, corporations, government as contracting party?
 2) Standing? Right Court? Deadlines? Adequate alternative remedies? Court specific procedures?
 3) Is ADM supplanting the court? (Re Residential Tenancies Act):
o 1) Historical function – exclusive court jurisdiction? YES 
o 2) “Judicial” power? YES 
 Judicial power if (1) “a private dispute between parties,” (2) that must be adjudicated “through the
application of a recognized body of rules,” and (3) that must be adjudicated “in a manner consistent
with fairness and impartiality.”
o 3) Institutional setting – still conform with s. 96 power? (not creating a parallel court system)  YES (=ADM)
 EG ADM. Central function was adjudicating disputes between landlords and tenants (Re Residential
Tenancy Act)

- In answering questions:
o WHICH BODY?
o WHICH DECISIONS (break it down)
 Procedural Fairness Framework - Administrative Law

Rule of Law and the Administrative State

 Rule of law is an unwritten constitutional principle (Secession Reference; Roncarelli)
 Administrative action unauthorized by law is of no legal force or effect. (Roncarelli)
 The rule of law constrains legislative sovereignty and court’s ability to substitute their views for those of their executive
(idea of deference). (Secession Reference)

Threshold for Procedural Fairness

 Two key principles:
o Audi alterem partem – “hear the other side”
o Nemo judex in sua causia – “one cannot be one’s own judge”
 Threshold Questions:
o 1) What kinds of decisions for which some procedural rights should be given?
o 2) If yes to above, then what choice of procedures are required?
 Right to hearing is an independent, unqualified right  whether result would have changed is irrelevant (Cardinal)
 Concept of PF is eminently variable and its content is to be decided in the specific context of each case. (Knight)
 Consider if PF was waived by the person (Zeliony – offer of adjournment turned down)
 !Exam Note: Always discuss  But if process is given, then threshold is unnecessary.

Knight Factors
 (pre-test) Does the Statute contemplates or precludes process? (Knight)
o YES statute
 Statute list detailed PF?  must be followed (Singh – Immigration Act procedures oust common law)
 Does enabling statute delegate elements of PF to subordinate legislation?
 Does soft law/policy exist which PF is required? (still NOT the law)  “useful indicator” (Baker);
generally good for consistency, but not law (Thamotharem)
 General procedural statute? (AB, BC, ON, QC)
 Alberta Administrative Procedures and Jurisdiction Act: applies to – Land compensation board /
Surface rights board / Alberta transportation safety board / Natural resources conversation
board as per Regulations.
 Even if CL gives low or no PF/statute denies  Is PF required by (quasi) constitutional enactments?
 Is Charter s. 7 engaged? – life, liberty, security of person (Singh – removal from Canada)
 Is Canadian Bill of Rights engaged? – federal leg and must “deprive a person of the right to fair
hearing” outside of principles of fundamental justice.
 Is Quebec Charter of Rights engaged? – Quebec leg and requires every person have a right to a
full and equal, public and fair hearing by an independent, impartial tribunal for determination of
his rights and obligations.
o NO statute 
 Where statute is silent on issue of hearing, “common law will supply the omission of legislature” ( Cooper)
 EG Nicholson cannot be denied of any protection- need to be treated “fairly” still (Nicholson)
 Vs. Statute and other similar statutes are silent  no PF (Canadian Association of Regulated Importers –
FCCA)
  Existence of general duty to act fairly will depend on consideration of three factors (Knight)

1. Nature of the decision (Knight)

o NOTE: Look to substance, not form (ex. identify of decision maker). (Homex; Inuit Tapirisat)

o Legislative (general and policy) or Administrative (specific and adjudicative)?

  NO PF owed for decisions which are legislative and general in nature ( Knight)
  Discretionary may still provide for some process – treated “fairly” (Nicholson) or legitimate expectation
(FAI Insurances – rejection after 20 years of license renewal)
 No PF EG. Parliament enacting statute, barring claim of veterans (Authorson)
 No PF EG. Cabinet’s power to deal with pols/econ issues (rate increase) (Inuit Tapirisat)
 No PF EG. Legislature enacted Act that removed his position (Wells)
 No PF EG. Reducing health coverage for refuges (Can Doctors)
 No PF EG. Allocation of students vs. school closing, despite guideline (Valderkloet)
 No PF EG. Board setting up egg quota. (Can Ass of Regulated Importers – FCCA)
 No PF EG. Fed limiting provincial social assistance $ without notice to provinces – Act of previous
government CANNOT bind current government (Ref re Canada Assistance Plan) vs. PF EG. No basis for
new minister to overturn old minister’s decision to grant hospital license (Mount Sinai)
PF EG. By-law aiming specific rights of Homex (Homex – Dickson Dissent)
 PF EG. Discretion to grant insurance, but renewed for 20 years in the past (FAI Ins)
 PF EG. Close case: discretion to deport an individual (Idziak)
 PF EG. ADM ignores policies and decides on closing schools. (Bezair) vs. PF EG. School closing without
policies still trigger PF (Elliott)

o Final or Preliminary Decision? (Abel)

  Final decision with significant consequences PF. (Re Abel)
  Preliminary, but close proximity between decision and harm  PF (Abel)
 PF EG. Preliminary - Panel’s psychiatric evaluation and recommendation for release. (Re Abel)
 PF EG. Failure to provide report when teaching license was at stake. (Munro)
 PF EG. Screening decision  low level of PF. (Wall)

o Emergency Decision? (Randolph)

  No requirement for a hearing despite possible interference of PF if emergency.
 No PF EG. Interim order made without mail-provision notice when there was a belief that the mail was
being used for criminal purposes. (Randolph)

2. Relationship between THAT party and individual (ex. employer and employee) ( Knight) – Public duty?
o ADM (x) is a public body applying (legislation y) to z.
o For private employees, no PF owed (Irving Shipbuilding).
o PF is required for offices held at pleasure and office that can be dismissed only for a cause (Knight)  OVERTURNED:
Common law duty of PF can be modified OR abrogated by contract ( Dunsmuir) (Canadian Arab Federation –
relationship between Minister and the complainant was purely contractual)
 PF still applies only where: 1) EE not protected by contract, 2) EE subject to summary dismissal and 3) PF
flows from necessary implication from statutory power.

3. Impact of the decision on rights/privileges/interests of individual ( Knight/Cardinal)

o  Duty of PF in every public authority that makes an administrative decision which is not of a legislative nature
and affects rights, privileges or interests of an individual (Cardinal).
o  Allocation of benefit (Hutfield) or withdrawal of existing benefit (Webb)
o  Also consider impact on the public interest (Hutfield)
o PF EG. Loss of employment (Knight)
o PF EG. Personal property damaged/effected (Cooper)
o PF EG. Prisoner’s liberty and being kept for safety reasons. (Cardinal)
o PF EG. Psychiatric patient’s liberty at stake from Board’s decision (Re Abel)
o PF EG. Teaching license at stake (Re Munro)
o PF EG. Humanitarian & Compassionate concerns being considered for deportation (Baker)
o PF EG. Refusal of citizenship is extremely important to individual. (Lazarov) vs. No PF EG. PR sponsor application–
lesser issue. (Lukaj)
 4. Legitimate expectations (Mavi treated it as an independent concept; but Baker made it part of the test)
o If legitimate expectation as to type of procedure, may be entitled to that procedure.
 Representation must be “clear unambiguous and unqualified” AND such representation is
procedural in nature and do NOT conflict with decision maker’s statutory duty. (Mavi)
  Representation is sufficiently precise if had they been made under private law context, they
would be sufficiently certain to be capable of enforcement. (Mavi)
  Need “substantial deviation from authority’s deviation” to be triggered (North End)
 Legitimate expectations arise where
o Representations about the procedure to be followed (Agrairia; Green)
o Past adherence to certain procedural practices (Agrairia, Mavi)
o Representations on substantive result to be reached (Agrairia)
o BUT Threshold is high. (Mount Sinai)
 CANNOT
o Grant substantive rights or a result (Reference re CAP; Agraira; Mount Sinai)
o Bind act of previous government to current government (Reference re CAP; Canadian Union of
Public Employees)
o Conflict with a statutory duty (Agrairia)
o Override national security interest (Council of Civil Service Unions)
o Arise out of convention that is not Canadian law (Baker)
 LE EG. Government made representations to refugee sponsors about discretion in collecting $ (Mavi)
 LE EG. Minister promised to license hospital after relocations (Mount Sinai)
 LE EG. Guidelines created LE that factors other than ‘national interest’ would be considered (Agraira)
 LE EG. Committee will not decided on a tie vote based on statute (Green)
 NO LE EG. Federal gov decreasing $ to provincial social assistance without notifying provinces (Ref Re CAP)

*** PF is engaged in determination of whether DUTY TO CONSULT is triggered. ( Athabasca)

 Conclude: Threshold is met / not met.

 Degree of Procedural Fairness
Baker factors (Flexible and Variable application – Non-exhaustive and Non-determinative)
1. Nature of the decision being made and the process followed in making it.
o If adjudicative (eg. Winner/loser, about the individual, applies a rule)  More process
 EG. Worker’s compensation board (Djakovic).
o If legislative/policy/polycentric  Less process
o If discretionary  Less process
 EG. Minister had lots of discretion  Less Process (Baker)

2. Statutory scheme and “terms of the statute pursuant to which the body operates”
o Fact-finding or investigative power in the preliminary stage?  Less process.
o Internal Appeals process?
 If no appeal process (ie final decision) (Baker)  More process
 If there is internal appeals process  Less process
o If decision is whether to grant exception to statute (Baker)  Less process
o *General Statute – AB Administrative Procedures Act (applies to Land compensation board / Surface rights board /
Alberta transportation safety board / Natural resources conversation board per Regulations)  Parties will have an
opportunity to provide evidence and make submissions, right to disclosure of facts and allegations, written reasons
including findings of facts.
o **Guidelines – cannot be mandatory but good for consistency (Thamotharem)

3. Importance of the decision to the individual or individuals affected.

o Consider impact on average person and/or on the specific individual in their circumstance  Contextualized
Objective Test (Cardinal, Baker)
 Greater the possible impact  More process (Re Abel)
 EG. Impact to deport the single mother with mental health issues & CHILDREN (Baker)
 EG. Failing last year of law school hence delaying graduation (Khan)
 EG. Compensation for work injury (Napoli)
 EG. Low back injury compensation during physio (Djakovic)
 EG. Severe reprimand by hearing committee on teacher alleged unprofessional conduct (Green)
o Consider impact on public interest (Hutfield)
 EG. denying doctor hospital privileges hurts public interest (Hutfield)

4. Legitimate expectations (Mavi treated it as an independent concept; but Baker made it part of the test)
o If legitimate expectation as to type of procedure, may be entitled to that procedure.
 Representation must be “clear unambiguous and unqualified” AND such representation is
procedural in nature and do NOT conflict with decision maker’s statutory duty. (Mavi)
  Representation is sufficiently precise if had they been made under private law context, they
would be sufficiently certain to be capable of enforcement. (Mavi)
  Need “substantial deviation from authority’s representation” to be triggered (North End)
 Legitimate expectations arise where
o Representations about the procedure to be followed (Agrairia; Green)
o Past adherence to certain procedural practices (Agrairia, Mavi)
o Representations on substantive result to be reached (Agrairia)
o BUT Threshold is high. (Mount Sinai)
 CANNOT
o Grant substantive rights or a result (Reference re CAP; Agraira; Mount Sinai)
o Bind act of prev. gov to current gov (Reference re CAP; Canadian Union of Public Employees)
o Conflict with a statutory duty (Agrairia)
o Override national security interest (Council of Civil Service Unions)
o Arise out of convention that is not Canadian law (Baker)
 NOTE: even if decision turns out to be legislative, argument may exist on LE ( Mavi treat it as independent concept)
 LE EG. Government made representations to refugee sponsors about discretion in collecting $ (Mavi)
 LE EG. Minister promised to license hospital after relocations (Mount Sinai)
 LE EG. Guidelines created LE that factors other than ‘national interest’ would be considered (Agraira)
 LE EG. Committee will not decided on a tie vote based on statute (Green)
  NO LE EG. Federal gov decreasing $ to provincial social assistance without notifying provinces (Ref Re CAP)
5. Does statute give decision maker discretion to set procedures?
o Discretion to set procedures exists (any process in statute?)  Less process (more deference to subject matter
expertise and resource allocation).
 EG. Minister was given lots of flexibility on how to assess H&C issues. (Baker)

  Standard of review for procedural fairness is correctness with deference to ADM’s choice of procedure ( Forest Ethics)

  CONCLUDE: Degree of PF is high/med/low.

 Pre-Hearing Issues

Notice – Determination of whether notice was sufficient is context-specific. (Blood Inquiry).

 Form of Notice/Manner of Service
o No requirement of certain form, can be informal, notice just needs to be effective (Webb; Knight)
 Yes Notice. Negotiations on employment contract was sufficient to alert that job at stake. (Knight)
 Yes Notice. Copies of expert report need not be provided under ADM’s own procedures (Alberta WCB)
o Reasonable effort to provide notice of hearing required. (Wilks)
 No Notice. “Southwestern Ontario” (Re Central Coalition) vs. Yes Notice. “Eastern Ontario” (Re Joint
Board)
 Yes Notice. Wilks moved without informing Immigration Appeal Division, mail not returned (Wilks)
o Expectation of notice is taken into consideration – uninformed bystander? (Blood Inquiry)
 Yes Notice. Corporate appellants were not uninformed bystanders. (Blood Inquiry).
 Timing of Notice
o Statutory requirement on when to give notice? (Blood Inquiry)
o Amount of information ADM needs to gather to provide notice taken into consideration. (Blood Inquiry)
o Must give parties sufficient time to prepare to meet the case in the circumstances  Length of time will depend on
interests and issues involved (Torchinsky; Chester; Blood Inquiry)
 No Notice. Receiving a letter describing right of appeal the day when hearing began (Torchinsky)
 No Notice. Insufficient deadline given for person to respond. (Re Rymal)
 Yes EG. Commission gave ample notice to parties that were informed throughout process. (Blood Inquiry)
 Contents of Notice
o Parties must have enough information to know their rights, privileges or interest may be affected (Ontario Racing;
Mayan), which event triggered the complaint (Chester) AND potential consequence of decision (Ontario Racing;
Mayan).
 No Notice. “Southwestern Ontario” (Re Central Coalition) vs. Yes Notice. “Eastern Ontario” (Re Joint
Board)
 Yes Notice. No mention of license at risk, but he ought to have known (Ontario Racing) vs. No Notice. No
mention of license at risk, therefore insufficient notice. (Mayan)
 No Notice. Could not be determined if “AND” was conjunctive or disjunctive (Chester)

Pre-hearing Discovery
 Power to compel disclosure must arise from statute (Quebecair)
o Power to decline disclosure must also arise from statute (Khela)
 Must disclose enough information for individual to know the case to be met (ex. sources, how much ADM relied) (Khela)
 ASK: Did the Discovery give the other party enough information to work with going in?

Delay
 Undue delay can violate procedural fairness if
o interferes with the capacity of the person to respond or
o is an abuse of process.
 But consider ADM’s limited resources  In any case, can s. 7 be engaged?

Pre- Hearing Standing

 Standing can be obtained through: private interest / public interest / statute
o Usually comes from statute, allowing interventions of people directly or adversely affected (Forest Ethics).
 ADM’s decision about standing is both procedural and substantive (Forest Ethics)
o Standard of review for PF is correctness with some deference to Board’s choice of procedure (Forest Ethics)
 No Standing. Sinclair’s application was not relevant to project; balance between fairness and efficiency (Forest Ethics).
 Hearing
Oral Hearing
 Oral hearing is not always required (Komo Construction); ADM generally has a broad discretion on this (Nicholson; Baker)
 Preference for oral hearing weakened as procedural fairness developed.
o No Oral Hearing. Allowed for written hearing (Baker)
o No Oral Hearing. Discretion left to whether to proceed by oral or written hearing. (Nicholson).
 Oral hearings required where necessary to ensure a fair process, where credibility is an issue – regardless of whether
decision-maker identifies credibility as an issue (Singh; Khan).
o Yes Oral Hearing. Law student’s credibility at issue on lying about 4th booklet; evidence was circumstantial (Khan)
vs. No Oral Hearing. Issue not about credibility – written submission already available to defend (Khan-Dissent)
 In some situations, inquisitorial method (judge asking questions) may be preferable – ex. sexual harassment.
 Balance of efficiency and fairness (Khan – Dissent).

Disclosure
 Party is entitled to be allowed an adequate opportunity to respond and know what evidence and representations given 
ADM cannot make a decision based on evidence which the other party didn’t have a chance to respond to – Audi Alteram
Partem
o No Disclosure. Kane not present when President in the meeting to discuss his suspension. (Kane)
o No Disclosure. 16-page summary of 30 reports not sufficient - report contained damaging statements (Napoli)
o No Disclosure. Report of accusation with anonymous sources; no info on why said sources were reliable;
Consequences is transportation to maximum security prison  Where liberty is at stake, evidence verification is
Required. (Khela)
 This common law notion supplements Access to Information Act (one does not preclude another).

Taking Official Notice

 Generally, ADM can take official notice of legislative facts, but not adjudicative facts. (KC Davis Article)
o Adjudicative – Facts about the particular case, the parties, their activities, their properties, must be supported by
evidence.
o Legislative facts – general info related to determination of questions of law or policy.
 Centrality of Facts – Avoid official notice on facts that are central to the complaint. (KC Davis Article)
 Uncertainty of Facts – Avoid official notice on facts that are uncertain. (KC Davis Article)

Admissibility of Evidence (ex. hearsay evidence)

 ADM has some discretion in admissibility of evidence, more relaxed than court. (Miller)
 BUT discretion on admissibility must not remove entitlement of affected persons to have a reasonable opportunity to make
case against it. (Larocque)  Therefore, may consider/admit hearsay evidence, but improper to decide solely on it. (Bond;
Re Clarke)
o PF met. Transcript from criminal proceeding relied on. (Re Clarke)
o PF NOT met. Arbitrator relied on hearsay evidence when victim did not testify. (Bond)
o PF NOT met. Board refused to hear from doctors who would have spoken specifically on the complainant
(Timpauer)

Cross-Examination
 Cross examination needed when necessary to ensure a fair process (Toronto Newspaper)
o Credibility at stake (Djakovic)
o No other way to challenge the case (Re Strathcona No. 20)
o Issues to be raised in cross-examination is central to the case (Djakovic)
o High degree of fairness required under Baker.
o PF Met. Written report gave parties sufficient opportunity to respond- cross not needed. (Re Strathcona No. 20)
o PF NOT met. Credibility of nurses was critical to injured Plaintiff’s case. (Djakovic)
 Post-Hearing Issues

Reasons
 Questions asked: (Nfld Nurses)
o 1) Is there a duty to provide reasons?
 Statute requires it?
 Generally, there is no requirement to provide reasons- Reasons are required when (Baker)
 The decision has important significance for the individual,
 There is a statutory right of appeal, or
 Where a high degree of procedural fairness is required.
 ADM should provide reason as otherwise make true deference diffulct if not impossible (Vavilov)
o 2) Were reasons actually provided? (just need to constitute as ‘reasons’)
 What will constitute as reasons will vary widely  Reasons need not be lengthy or complex; but they
need to answer the question “why?” (Wall)
 Quality of reasons is not a question of procedural fairness. (Nfld Nurses)
 Key Q: Can the individual can understand the rationale behind the decision ( Wall)
o PF met. Transcript of hearing was sufficient. (Unicity)
o PF met. Immigration officer’s notes was sufficient (Baker).
o PF met. Negotiation on employment contract (Knight).
o PF met. Speeches at the meeting showing LSBC was alive to the issue (Trinity Western)
o PF NOT met. Lack of transparent and failure to explain why? (Wall)
 Consider ABSENCE vs. ADEQUACY of reasons (Wall)
o Letter from director failed to give any reason (Wall – ONSC) vs. Letter did not contain
adequate reason (Wall – ONCA).
o BUT considering it as ‘lack of reason’ more beneficial for the applicant as standard of
review for PF is correctness, whereas Nfld Lab says once reasons are provided,
substantive review is entered (in which case the standard of review can be
reasonableness or correctness).
  Failure to provide reasons may violate procedural fairness (Baker)  However, once ANY reasons are provided, court
should enter substantive review (Nfld Lab)
o Generally, reasons must be requested before appeal – however not necessary. (Unicity Taxi)

 ***VAVILOV Amici Curiae Factum: although PF will not ALWAYS require reasons, from practical and analytical
perspective, absence of reasons make true deference difficult if not possible  ADM SHOULD provide reasons.
 Bias
General Test for Bias
 Nemo judex in sua causa – “one cannot be one’s own judge.”
 Standard for reasonable apprehension of bias varies with the context of fairness determined under Baker. This includes
the nature and impact of the decision. (Nfld Telephone)
 Objective Test: Reasonable apprehension of Bias “what would an informed person, viewing the matter realistically and
practically – and having thought the matter through – conclude” (National Energy Board)
o Certain interests traditionally giving rise to bias / Duty applies to ALL actors who play significant role:
o 1) Antagonism during hearing (ex. aggressive questioning / comments / may occur in writing).
o 2) Association between Party and Decision Maker
o 3) Involvement in preliminary stage of decision
o 4) Attitudinal bias.

1) Characterize the ADM BODY (Nfld Telephone)

 *In characterization  Consider terms of statute, nature of function and type of decision made (Old St Boniface)
 Standard  Primarily adjudicative board: No reasonable apprehension of bias
 Standard  Popularly elected boards: No closed mind (hence pre-judgment would not make submission futile) (Nfld
Telephone – 1992 SCC)
o Test requires one to be capable of being persuaded (Old St Boniface – 1990 SCC – Municipal councilor)
o BUT Impossibility of gauging one’s mind Decision maker is entitled to bring a closed-mind test provided that
“closed mind is the result of not corruption, but of honest opinions strongly held” (Save Richmond – 1990 SCC)
 ALSO consider view of constituents (Seanic – 2014 NLCA).
 No Bias. Municipal councilor had prior involvement, but no evidence that he had closed mind (Old St
Boniface)
 No Bias. Municipal councilor said he would not change his mind on approval of rezoning bylaw – just
strongly held opinion. (Save Richmond)
 No Bias. Councilor would not change his mind on zoning to comply with view of his constituents.
(Seanic - NLCA) Vs. Yes Bias. Councilor had a closed mind and was driven not by legitimate planning
considerations, but view of his constituents (Seanic – NLTD).
 Standard  Policy-setting board: No closed mind (EG Municipal board (Nfld Telephone))

2) Timing of the decision (Nfld Telephone)

 Investigative stage – “close mind” test
o No Bias. Improper comment made before hearing (Nfld Telephone)
 During hearing stage – greater impartiality is required  no reasonable apprehension of bias, but with flexible
application of the test as compared to adjudicative body.
o YES Bias. Improper comments made during pre-hearing/hearing stage  made up mind (Nfld Telephone)

3) WHAT CONSTITUTES AS BIAS?

 Attitudinal Bias
 Expressing antagonism to a party during proceeding (Canadian College of Business and Computers)
o YES Bias. Adjudicator asked about involvement with Tamil Tigers, which was irrelevant to hearing (Canadian
College of Business and Computers).
 Pre-commitment to an outcome or party ? (Paine)
 NO Bias. One member of tenure appeal committee was previously against tenure  Sat on committee 
Cannot have dominated proceeding and internal appeal mechanism held no bias (Paine - ONCA) Vs. YES Bias.
Presence of that member constituted as bias (Paine – ON Div Ct).

 Relationship Bias
 Personal Relationship
o OR “Kinship, friendship, partisanship, particular professional or business relationship with one of the parties,
animosity towards someone interested, predetermined mind as to the issue involved, etc” (Energy Probe)
 YES Bias. Board consisted of direct competitor, GF of disgruntled former partner (Gedge).
 YES Bias. Personal relationship w/ Commissioner and attending Commissioner’s BBQ (United
Enterprises)
  Past affiliation
o Prior involvement (including preliminary stage of decision) could bias the ADM (Vespra)
 YES Bias. Chairman of National Energy Board was president of study group that formed the applicant
company, discussing the same issue (National Energy Board).
 YES Bias. Director instigated investigation and was the one that made final decision. (Comeau)
 YES Bias. Board who originally heard case, re-heard the case. (Township of Vespra)
 No Bias. Municipal Councilor was involved in development as part of his job, but no evidence of
closed mind (Old St Boniface)
o But consider passage of time and whether nature and function of the ADM clearly requires people who will
inevitably have had past affiliations (Dylex)
 NO Bias. Member of labour board (lawyer) worked at a firm that represented union, but member did
not represent union (Dylex).
 YES Bias. Vice Chair of Board acted for one of the parties 7 years ago. (Terceira)

 Financial or pecuniary interest

 De Minimum exception (Locabali) BUT interest must be DIRECT and REAL, not too remote (Energy Probe)
o YES Bias. Zoning decision made by member who owned residence in the area. (Convent of Sacred Heart)
o No Bias. Mere possibility that board member may profit in the future not sufficient. (Energy Board).
o No Bias. Potential that committee is biased due to self-interest to reduce competition not sufficient
(Pearlman)
o No Bias. First Nations sitting in tax committee is okay because tax revenue is for community (Mastqui)

4) BUT – Statutory Authorization?

 Consider if the statute/composition of ADM necessitates having such people with these interests (Burnbrae Farms)
o No Bias. Statute mandated 7 out of 12 members of Canadian Egg Marketing Agency to be egg producers in other
province, despite potential conflict with applicant producer (Burnbrae Farms)
 Bias arising from a person’s involvement in multiple stages of a proceeding may be authorized (Brousseau)
o No Bias. Nature of Securities Commission is that it takes on both administrative and adjudicative functions 
Chairman was acting within statutory authority to act as an investigator (receive report only) and adjudicator
(Brosseau).
o YES Bias. Director instigated investigation and was the one that made final decision. (Comeau)
 Scope of statutory authorization?
o YES Bias. Policy statement noting misconduct of ten dealers, followed by hearing against them was outside
statutory authority (EA Manning- ON Div Ct)  No Bias. New commissioner that did not contain any old members
did not have institutional bias (EA Manning – ONCA).

5) Institutional Bias / Independence issue?

 Generally ADM’s should be limited to hearings. (Consolidated Bathurst)
o Parties should have a right to right to new grounds/issues the ADM is considering.
o Exception: Full Board Meeting on policy issues, non-voluntary attendance, no evidence that meeting affected
outcome (Consolidated Bathurst) vs. no record or attendance (transparency issue), influential on decision makers,
parties to dispute have no access (Consolidated Bathurst – Sopinka Dissent)
 Look for evidence discussion touched on new issues/grounds and key facts.
 ADM can rely on guidelines (good for consistency), but CANNOT be mandatory ( Thamortharem).
 Institutional Bias Test: “Would reasonably informed person have a reasonable apprehension of bias in “a substantial
number of cases?” (Lippe; Regie)
o For Quebec, consider guarantee to independent tribunal - Yes Bias. Director involved in various stages of case
(prosecution and adjudication) is against s. 23 of Quebec Charter (Regie)
 Institutional bias acceptable if authorized by statute and ADM acts within the statutory authorization. (Regie)
o No Bias. Alberta Securities Commission statutorily authorized to have some overlapping functions. (Brosseau)
o BUT Statute permitting institutional bias may be set aside under s. 7 of the Charter
  Is there an independence issue?
o Judicial independence: security of tenure / financial security/ administrative control
o Judicial independence cannot be strictly applied to ADM (Regie)  There may be express statutory language on
this (Ocean Port)
 No Bias. Statute clear that office is held at pleasure; therefore lack of security of tenure did not breach
judicial independence (Ocean Port)
 No Bias. Statute authorized termination of chair and two vice-chairs of LRB (Sask Fed Labour)
 Substantive Judicial Review Framework

*****FOR EXAM: Frame the issue (core issue? Sub issue? Remedies granted? Other requests?

The Dunsmuir Framework

 Holistic Approach to Standard of Review balances the Rule of Law and Legislative Supremacy.
o Rule of Law: Leg. cannot defeat court’s constitutional power to review as tribunals are not s. 96 courts. (Crevier) 
BALANCE: maintained when courts have last word on jurisdiction (Dunsmuir).
o Legislative Supremacy: Courts should avoid undue frustration of legislative intent  BALANCE: maintained because
standard of review chosen on basis of legislative intent (Dusmuir).
  Narrowed the standard of review to two: Correctness and Reasonableness
o  Standard of review is the same for ALL appellant courts once you are out of fact-finding stage. ( Dr. Q)
o Despite Dunsmuir, “patent unreasonableness” will live in BC with BC Administrative Tribunals Act – but its content
and degree of deference will depend on Dunsmuir analysis (Khosa)

Step 1: Past Case Law (*Dunsmuir treated this as type of questions; but later courts applied it as a binding precedent)
 Courts ascertain whether jurisprudence has already found the degree of deference to be accorded with regard to a
particular category of question. – On EXAM: note that will be looking for same ADM, same provision, same Act, AFTER
Dunsmuir.
o Precedent followed. Arbitral award under collective agreement = reasonableness (Nor-Man)
o Precedent NOT followed. Consistent line of jurisprudence on standard of correctness on human rights legislations 
BUT Dunsmuir came long  Since home statute/within expertise  Standard of reasonableness. (Canadian Human
Rights Commission)

Step 2: (I) Nature of Question The Nature of the Q should give rise to one of two presumptive Standard of Review
 Nature of the Question
 *** IMPLICIT Decision  still attract deference (Alberta Teacher’s Association)

 1) Factual Questions  Reasonableness

o Error arises from Court’s factual conclusions after examining the relevant evidence.
o Southam Definition: What actually took place between the parties.
 EG. Finding of Credibility is a quintessential question of fact. (Dr. Q)
 EG. Weight of expert evidence on assessment of WCB claim. (Alberta WCB)

 2) Mixed Question of Fact and Law (Law, not guideline)  Reasonableness

o Southam Definition: Whether the facts satisfy the legal tests (application of rule to facts)
o Extricable question of law is: was the test laid out correctly? (Alberta WCB)

 3) Questions of Law (Law, not guideline)  Reasonableness OR Correctness (depends on type)

o Southam Definition: What is the Correct legal test?
o Key Q: Is the legal issue clearly separable from factual determinations? (Pushpanathan)
 EG. No need to know type of narcotics (facts) to apply to UN convention – BUT prior to Dunsmuir
(Punshpanathan)
 Correctness (Dunsmuir)
o Federalism and other Constitutional Questions (Dunsmuir)
o Review of ADM’s decision with respect to jurisdiction over constitutional challenge  Correctness
(Marin; Conway)
o Review of ADM’s determination of constitutional validity of legislation or award of constitutional
remedy  NS Worker’s Comp TEST  Conway Remedy Test  Correctness (NS Worker’s Comp)
o Review of ADM’s decision that allegedly violates a Charter (or Aboriginal) right  Reasonableness (=
proportionality) (Dore/Rio Tinto)  See separate framework.
o Question of law of central importance to legal system and outside ADM expertise.
o Consider: Immigration Relations Board – “ a serious question of general importance” – same thing?
(Pushpanathan – relied on this)
o EG. Principle of religious neutrality of the state (Saguenay).
o EG. Principle of solicitor client privilege (University of Calgary).
o TRUE Questions of vires and jurisdiction: arises where ADM was must explicitly determine whether its
statutory grant of power gives it the authority to decide a particular matter ( Dunsmuir; Public Service Alliance)
o  Narrowly understood to avoid abuse by Courts. (Public Service Alliance)
o EG TRUE Jurisdictional. Jurisdiction over two competing tribunals (Dunsmuir)
o EG TRUE Jurisdictional. Whether city of Calgary was authorized under Municipal Act to enact bylaws
limiting the number of taxi plate licenses (United Taxi)
o EG Jurisdictional. Whether Agreement on Internal had jurisdiction to hear non-Canadian supplier’s case
(Northrop)
o Option of going to court or ADM  Correctness (Rogers)
o ***VAVILOV Amici Curiae Factum: True questions of jurisdictions should be put to rest  only for
constitutional questions, jurisdictional boundaries between ADM, persistent discord that renders law
unintelligible and questions of law of central importance to legal system  Correctness.

 Reasonableness
o Fact, discretion, policy (Jump down for analysis)
o Mixed Law and Fact (because intertwined)
o Interpreting own statute (Pezim; Dunsmuir; Nor-Man; McLean)
 Deference just based on this not warranted  Requires Indicia of expertise (Smith)
 YES EG. Securities Commission interpreting Securities Act (Pezim; McLean)
 YES EG. Labour board interpreting Public Service Labour Relations Act (Dunsmuir)
o BUT Analysis started from common law of dismissal of EE  Correctness (Dunsmuir-
Deschamps)
 YES EG. Human rights tribunal interpreting Human Rights Act (despite consistent line of jurisprudence
on standard of correctness)  reasonableness (Canadian Human Rights Commission)
 YES EG. Labour arbitrator interpreting home statute to determine estoppel as a remedy (Nor-Man)
 YES EG. Information and Privacy Commissioner interpreting Personal Information Protection Act (Alberta
Teachers’ Association)
 NO EG. Copyright Board interpreting Copyright Act  Complainant had option of disputing in court or
ADM  CORRECTNESS (Rogers)
o Decision maker has expertise outside rule (ex. non-home statute)
o NO EG. Term “dependent” not specific to Worker’s Compensation setting, but legal terms of art –
Commission relied on Black’s Law Dictionary  CORRECTNESS. (Elgie)
Step 2 (II) Where Presumptions fail to yield a Standard of Review ( Dunsmuir)
 Courts proceed to a contextual analysis of the set of pragmatic and functional factors to identify the proper Standard of
Review: 1) Presence or absence of a privative clause, 2) Purpose of the tribunal as determined by interpretation of enabling
legislation, 3) The nature of the question at issue and 4) The expertise of the tribunal.

Privative Clauses
 Parliaments Legislative instrument to limit the scope or intensity of Judicial Review.
o Presence indicates greater deference but is ultimately undeterminative (note it forms part of framework).
(Dunsmuir)

 1) Full Privative Clause

o Look to Legislative intent to discern if legislature intended for a full privative clause. (Pasiechynk)
o Relies on broad language to preclude any form of judicial review
 “Final and conclusive” / No Appeal / No Judicial Review
 EG. “Final and shall not be reviewed in any court” (Dunsmuir)
 EG. No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any
court, and no order shall be made or process entered, or proceedings taken in any court, whether by way
of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to
question, review, prohibit or restrain the Board or any of its proceedings. (Labour Relations Act)
 2) Weak Privative Clause
o Relies on less intense language than full privative clauses.
 Establishes that the decision makers have sole/exclusive jurisdiction.
 Refers to the ADM’s decision as final and conclusive.
 BUT no express exclusion of courts.
 EG. The decision and finding of the board under this Act upon all questions of fact and law are final and
conclusive. (Workers Compensation Act)
 EG. “final and not subject to review to government or minister” – ambiguous as no reference to courts
(Hibernia)
 3) No Privative Clause indicates less deference (Pezim; Southam)

 ***Constitutional Limits
o Inherent power of courts to review ADM and ensure jurisdiction from ss.96-101 of Constitution Act. (Dunsmuir)
o Legislature does not have the constitutional authority to oust the court’s power to review and administrative
decision or the agency’s statute. (Crevier; Dunsmuir)
 EG. Privative clause cannot cover division of powers issue – can’t determine own jurisdiction (Crevier)
 EG. Privative clause cannot preclude judicial review when ADM exceeds – ruling when tie vote. (Green)

 Statutory Rights of Appeal? (Alberta WCB)

o Starting point: Standard of review analysis applies EVEN where right of appeal exists – not determinative
(Saguenay)  Still consider statutory right of appeal:
o No Right of Appeal Clause  more deference? (no consensus in case law)
o Broad Right of Appeal Clause  less deference? (Ryan; Stewart – but no consensus in case law)  Appeal
should be approached like judicial review, where the nature of question is the main consideration for
deference (Saguenay).
 BUT still deference in Pezim despite broad statutory appeal based on other factors (ex. expertise)
o Consider: Ability to go to court or ADM  CORRECTNESS (Rogers)
o May provide a Right of Appeal to a specific court for Q’s of Law.

Expertise of the ADM

 Starting point: Highly specialized Tribunals should be owed greater deference. ( CUPE – Labour board)
a.  Expertise may extend to home statute and rules of common/civil law. (Dunsmuir)
 Expertise of Individual ADMs and Institution RELATIVE to the Court (Pushpanathan; Dr. Q)  CONSIDER general
expertise and expertise on particular question (Alberta WCB)
o Personal or professional background of individual ADM (ex. qualifications).
o EG. Only 10% of the Board is required to be lawyers  less deference (Pushpanathan)
o EG. Judges are outnumbered by lay members by 2:1  more deference (Southam)
o Collective history and institutional expertise of ADM (ex. statement of purpose, remedial powers ADM has).
o EG. Commission routinely hears medical opinion evidence and makes findings of fact. (Alberta WCB)
  Factors:
o Interpretation of own statute (Pezim)
o Statute provides broad powers (investigation, audits, hearing) and orders are treated as court decisions (Pezim)
o EG. Labour arbitrators – broad power to order remedy. (Nor-Man)
o Regulation is complex and specialized – Securities Commission (Pezim)
o Play a role in policy development – Securities Commission (Pezim)
o Field sensitivity acquired from years of operation in an area (Southam)
o Superior understanding in a Particular Area / Technical Superiority (Bishop – optometry; Ryan – law society)
 EG Expertise. Securities Commission interpreting Securities Act; Act grants commission broad powers and
orders are treated as courts (Pezim).
 EG Expertise. Competition tribunal’s expertise in economics and commerce (Southam)
 EG Expertise. College of optometrists plays an important role in setting and enforcing optometry practice
standards. (Bishop)
 EG NO Expertise. Term “dependent” not specific to Worker’s Compensation setting, but legal terms of art –
Commission relied on Black’s Law Dictionary  CORRECTNESS. (Elgie)
 ***VAVILOV Amici Curiae Factum: Expertise is unstable  Legislative Intent.

Legislative Intent
 Purpose of the Statute and Provisions in particular should be considered to discern legislative intent (Pushpanathan)
o  Less deference:
o Dispute between private parties on rights/entitlements (Pushpanathan; Alberta WCB)
o Express statutory language that defeats reasonableness review- decision by ADM appealable as if
it was determined by federal court. (Tervita)
o Option of going to court/ADM  same SoR should apply  CORRECTNESS (Rogers)
o  More deference:
o Delicate balancing between different constituencies (Pushpanathan).
o “Polycentric” (involves a large number of intertwined interests and considerations) decisions
(Pushpanathan).
o Creation of experienced boy that leverages its accumulated experience (CUPE; Southam)
o Creation of highly discretionary / policy-making body (Pezim)
o Creation of body that deals with specific regulatory issues for public interest (Pezim (securities);
Bishop (practice of optometry); McLean (securities) / Trinity Western (law society))
o Provision of efficient alternative to courts (Dunsmuir – labour board)
o Broad statutory power to grant remedies (Nor-Man)
o Protection of public, engages policy issues (Alberta WCB)
o EG. Securities Commission = policy-making body  deference (Pezim)
o EG. Competition tribunal = deals with “economic” issues than “legal”  deference (Southam)
o EG. Labour Board = Broad statutory power and ability to assess collective bargaining agreement
(Nor-Man)
o Unclear. Balancing of competing interests vs. adjudicative function of college of physician (Dr. Q)
 ***VAVILOV Amici Curiae FACTUM:
  Dunsmuir is inefficient and does not have precedential effect given reliance on contextual analysis 
Should focus on legislative intent (as a primary factor) at an institutional level NOT as a contest of
expertise (expertise is problematic and unstable ground)

Nature of the Question (As noted above, ____ appears to be a question of ______ Thus ________)

Discretionary and Policy Questions  Reasonableness

 Discretionary power should always be exercised in good faith and for the purpose that the legislature connected to the
statute in question. (Roncarelli)
 Look to Relevant Statute to determine whether the ADM’s authority is framed generally such that it requires choices to be
made from a range of options. (Dunsmuir)
o Key Phrases: “In the public interest” “In the circumstances” “In the opinion of”
 EG. Discretion granted to board to determine something is “sufficient” “humanitarian and compassionate
considerations.” (Khosa)
 EG. Appellant is seeking discretionary privilege (Khosa).
 Applying the Standard of Review

The Disaggregation Dilemma – CAN ISSUE BE BROKEN DOWN?

 Breaking down issues so much that narrow issue is subject to correctness review  Should be apply carefully.
 May be appropriate where a presumption of correctness arises and there are extricable questions of law that should be
reviewed on reasonableness. (Dunsmuir implies)
o BUT: lawyers may always argue for disaggregation to obtain correctness review (Abella in Saugenay)
o Yes Disaggregation. Arbitrator’s resolution of the conflict was reviewed on a correctness standard while the rest of
the decision attracted a reasonableness standard (Levis).
o No Disaggregation. Agency makes a decision with many component parts which fall squarely and inextricably
within its expertise and mandate  single deferential standard (VIA Rail).

Correctness Review (Intrusive Standard)

 Ask: Was the tribunal’s decision correct? (Decision is either CORRECT or INCORRECT – BINARY)
 Reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own
analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the
decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court
must ask whether the tribunal’s decision was correct (Dunsmuir)
o Analysis should be independent of the ADM’s decision. (Pushpananthan)
o Consider broader policy issues to avoid frustrating legislature. (Northrop Grunman)

 EG. Justice Bastarache conducts a complete treaty interpretation on UN convention to derive purpose of subject Article and
whether drug trafficking offence constitute as being contrary to the purpose and principles of UN. (Pushpanathan)
 EG. SCC conducts a full analysis on problems of non-Canadian suppliers able to bring a complaint under Agreement on
Internal Trade including policy considerations (Northrop).
 EG. Court found Appeals tribunal erred in importing the definition of “accident” from one statute to another. (Stewart)
Reasonableness Review (Deferential Standard)
 Reasonableness is a deferential standard that certain questions that come before administrative tribunals do not lend
themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions
(Dunsmuir)
 The ADM’s decisions may give rise range of reasonable conclusions. (Dunsmuir)
o Tribunals are given a “margin of appreciation” within the range of acceptable and rational solutions. Decisions
falling under the reasonable range should be undisturbed by the courts. (Dunsmuir)
o  Deference as a respect for legislative intent to allow ADM to render own decisions given their expertise.
(Dyzenhaus; Dunsmuir)
o  Meets the hallmark of “Justification, Transparency AND Intelligibility” ( Dunsmuir)  SEPARATE ANALYSIS
o Justification: action of showing something to be right or reasonable (Oxford)
o Transparency: condition of being easy to perceive or detect (Oxford)
o Intelligibility: state or quality of being able to understand, be comprehensible (Oxford)
 EG failure. Irving majority later criticized for failing to meet the above standard for applying
different evidentiary standard than past labour board  problem of justification and
transparency.
o  Do NOT go line by line treasure hunt for error – this is NOT deference ( Abella majority in Irving)
o EG. Ambiguity in statute  Existence of two reasonable outcomes are fine. (McLean)
o  Look at reasons together with outcomes (Dunsmuir; Nfld Lab)
o Sufficient if it allows the Reviewing court to understand ADM’s decision and decide if it falls within the
range of reasonable outcomes; perfection is NOT the standard (Nfld Lab)
 EG. Reasons, although not perfect, showed arbitrator turned his mind to issues and decided
within the range of reasonable alternative (Nfld Lab).
 EG. Although no reasons, speeches from meeting showed that LSBC was alive to question of
balance (Trinity Western)
o **VAVILOV Amici Curiae Factum: where reasons are provided, it should be the starting point of review.
o  Implicit decision (Alberta Teachers’ Association)
o When there is no duty to give reasons/limited reasons provided  OK for court to consider reasons that
could be offered for the implicit decision  ONLY remit back to ADM if necessary (efficiency issue)
o  Badges of unreasonableness (Paul Daly): illogicality, disproportionality, inconsistency with statute,
unexpected changes in policy and (Kislowicz) failure to consider required factors or consideration of irrelevant
factors.
 CONSIDER: AFTER reasonableness review, could be argued that court ACTUALLY engaged in correctness review  Can
appeal based on this.

 Reasonable. Board’s decision to strike down ER’s random alcohol testing was reasonable as arbitral jurisprudence says
danger in workplace does not automatically justify testing AND evidence of alcohol problem insufficient (Irving)
o Vs. Board applied a different evidentiary standard than arbitral jurisprudence and drew unreasonable inference
from 10% of testing as indicating the level of problem (Irving – Rothstein and Moldaver dissent).
 Reasonable. BC Securities Commission’s interpretation of statute was fine as statute was ambiguous and subject to two
interpretations (McLean).
 Reasonable. Labour arbitrator’s decision to disallow part-time EE from carrying over seniority when converted to fulltime
EE
Jurisdiction on Charter Issues
 Administrative tribunals can apply the Charter to impugned provisions. (NS Worker’s Comp; Cuddy Chicks)
1. The Charter is the supreme law of Canada as per s. 52(1); ADM provides access to Charter in most accessible form.
2. Charter disputes do not take place in a vacuum, they are contextual.
3. Administrative decisions on Charter is subject to correctness standard of review.

 NS Worker’s Compensation Board Jurisdiction Framework:

o 1) Look for explicit jurisdictions on questions of law
  Presumption that ADM has jurisdiction to decide constitutionality of provisions.
 EG. Act/Regulations clearly confer power to decide questions of law to the Appeals Tribunal. (NS Worker’s
Comp)
o 2) Look for implicit jurisdiction – look at statute as a whole.
 Statutory mandate of the tribunal.
 Tribunal intended to deal with the issue? (NS Worker’s Comp)
 Interaction of the tribunal with other elements of the admin system.
 Whether the tribunal is adjudicative in nature. (NS Worker’s Comp)
 Fully adjudicative in nature? (NS Worker’s Comp)
 Practical considerations (ADM’s capacity to consider questions of law  CANNOT override clear
implication of statute).
 Existence of backlog cannot supplant legislative intent to grant jurisdiction (NS Worker’s Comp)
o 3) Can presumption be rebutted?
 Burden of proof lies on party who alleges presumption should be rebutted.
 Presumptions can be rebutted where:
 Explicit withdrawal of jurisdiction or
 Examination of statutory scheme clearly leads to the conclusion that the legislature intended to
exclude the Charter from the scope of the questions of law to be addressed by the tribunal, this
CANNOT be from practical/external considerations(Conway)
o EG. Fact that board of directors can respond to issues insufficient  Board can refer
complex Charter issues to Appeal Tribunal (NS Worker’s Comp)
o Charter Remedies (Conway) – once threshold passed (does ADM have jurisdiction to grant Charter remedies
generally? – ie. Does ADM have jurisdiction over questions of law?) 
 4) If so, does legislative intent give power to grant remedy sought?
 Consider past cases, ADM’s mandate, structure and function (Conway)
 EG. Ontario Review Board cannot give remedy of absolute discharge after finding dangerousness
in NCR offender (Conway).
 EG. Ontario Review Board is NOT allowed to prescribe treatment as this is not within the
mandate of ORB (Conway).

 If ADM’s decision engages Charter by limiting its protections (both rights and values) ( Dore) 
o 1) whether ADM’s decision limit Charter values and rights – Charter test (Trinity Western majority)
o 2) standard of review = reasonableness with proportionality (= robust proportional analysis instead of s. 1
analysis)  whether, in assessing the impact of the relevant Charter  protection and given the nature of the
decision and the statutory and factual contexts, the decision reflects a proportionate balancing of
the Charter protections at play and the relevant statutory mandate (Dore; Trinity Western)
 Must consider if other alternative exist that protect Charter better (Trinity Western)
 Must consider how substantial limitation on Charter protection was compared to benefits (Trinity
Western)
 Burden of proof falls on the state (Trinity Western- McLachlin concurring)

o EG Reasonable. Proportionality between the legislative purpose of prevent incivility in the legal profession and the
Charter Value of protecting open criticism of public institution. Dore’s response was not justified. The Disciplinary
Council’s decision was not unreasonable, it was proportional. (Dore)
o EG Reasonable. Approving the law school would NOT have been reasonable because would not advance statutory
objectives to regulate the law school in public interest in administration of justice determining the requirements
for admission to profession, as mandatory covenants of school would impose an inequitable barrier to LGBTQ
students. (Trinity Western)
 Duty to consult and accommodate
o 1) Can ADM conduct duty to consult and accommodate on behalf of Crown?  In principle yes, ADM is acting on
behalf of the Crown  But separated into two questions (Rio Tinto)
 1) whether consideration of duty to consult and accommodate was within the mandate of ADM 
Question of law  SoR is correctness (Rio Tinto)
 If ADM has jurisdiction over question of law, then they have jurisdiction over constitutional
questions including DTCA (Rio Tinto)
 EG. Statute provided ADM with a power to decide on questions of law (“any other factor
commission considers relevant to public interest”) – BC Administrative Tribunals Act restricted
constitutional questions, however defined narrowly to only constitutional validity or applicability
of the law or application of constitutional remedy (Rio Tinto)
 EG. NEB had powers to hear and determine all matters of fact and law (Clyde River; Chippewas)
 When is consultation required? (Rio Tinto)
o 1) Real or constructive knowledge of potential claim  Rio Tinto - yes
o 2) Crown conduct or decision (includes strategic decisions – setting up a policy that
might infringe a right in the future)  Rio Tinto - yes (Energy Power Agreement is a
Crown conduct)
o 3) Possibility that conduct affects claim/right
 Causal link between Crown conduct and the infringement of the right
 Not speculative or past conduct (focus on conduct now)
 Not adverse effect on negotiating position
 Restricted to particular decision – not underlying infringement (topic is EPA,
not the dam itself)
o Degree of consideration will depend on circumstances of each case (Clyde River).
o If Crown’s duty NOT fulfilled  ADM must withhold approval (Clyde River).
 2) whether ADM can carry out the duty to consult and accommodate?  NOT a question of law  SoR
is facts & mixed fact/law = reasonableness; pure law = correctness; so likely reasonableness as this
question is usually mixed fact/law (Rio Tinto).
 Consultation is a distinct and complex process that involves facts, law, policy and compromise 
ADM must possess remedial powers necessary to do what it is asked to do with consultation (Rio
Tinto).
  There must be EXPRESS AUTHORITY to discern legislative intent for ADM to carry out DTCA
(Rio Tinto).
  Any shortfall in meeting the DTCA will fall on the Crown (Rio Tinto).
 If delegated  Crown must make clear to Indigenous groups it is relying on process for duty to
consult and accommodate (Clyde River); but Crown does not need to be a party to the process
(Chippewas)
 EG NOT met. Deep consultation required as treaty right at issue  did not consider
environmental impact; not made clear to Inuit that NEB was fulfilling DTCA; no oral hearings; no
participant funding; inaccessible answers to questions (Clyde River).
 EG met. Adequate opportunity to participate in decision making process (early notice, made
aware NEB as the final decision-maker, funding provided, oral hearings); sufficiently address
potential negative impact; for potential negative impact, imposed conditions on Enbridge
(Chippewas).
Remedies (Christie Ford article)
 Old Writs
o Ceritorari – Quashes (Effectively invalidating) a tribunal’s order or decision.
o Prohibition – ADM has no jurisdiction  Prohibit the ADM from exercising power.
o Mandamus – Unfairness or jurisdictional issue  Compels a lower court or agency to perform a duty it is mandated to
perform.
o Declaration – Court determines and states the legal position of the parties or the law that applies to them. They are
not enforceable legally.
o Quo Warranto – Show source of ADM’s authority. (Rare)
o Habeaus Corpus – Ensures a person’s imprisonment / detention is not illegal. (Rare)

 Statutory Reform to the Old Writes in Alberta (S.35(1) Rules of Court)

o Prescribes remedies in the nature of old writs.
o S. 35(a) an order in the nature of mandamus, prohibition, certiorari, quo warranto or habeas corpus; (b) a
declaration or injunction.
o Statutory Reforms:
1. Simplified application procedures
2. Simplified remedies
3. Greater clarity as to who can be a Party
4. Right of Appeal
5. Mechanisms for interlocutory matters.

 CONSIDER: Whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory
framework of the particular tribunal. (Conway)
o Consider Public interest. (Conway – absolute discharge of dangerous NCR offender)

 CONSIDER- Discretionary Bars to Remedies : Courts have discretion in deciding whether to provide remedy.
o Adequate alternative remedies (EG. Internal appeals)?
 Knight: in order to be entitled to fairness, the decision must be final.
o Prematurity – internal appeals not yet exhausted or full course has not yet taken place.
 Exceptions include Special circumstances (Challenge to legality of the tribunal, challge to jurisdiction, and
absence of effective remedy after proceedings).
o Delay/Acquiescence – sometimes limitation period in statute
o Mootness - Remedy doesn’t really matter to you anymore
o Clean Hands – remedy to facilitate illegal conduct or obtain an unfair advantage or flouting the law.
o Balance of convenience – Between parties (Mining Watch) – convenience favours not granting remedy.
o Abuse of Process (Collateral attack) – goes to another court to avoid ruling of previous court.

 EVEN IF PUBLIC REMEDY FAILS, consider PRIVATE LAW REMEDIES

o Government agencies can be sued for under private law for the tort of misfeasance in public office. (Oldhavji)
 Plaintiff must establish, in addition to the basic elements of negligence, (1) deliberate and unlawful
conduct by someone in public office, and (2) the public officer’s subjective knowledge that the conduct
was unlawful and likely to harm the plaintiff.
o EG. One of few successful tort actions Large-footed prisoner requests new shoes, intentional delay results in
knee injury. (McMaster)