LAW 503 – CANS - Table of Contents

I. THE ADMINISTRATIVE STATE 7

WHAT IS ADMINISTRATIVE LAW? 7
INSTITUTIONS OF THE ADMINISTRATIVE STATE 7

II. OVERSIGHT OF REGULATORY AGENCIES: THE RULE OF LAW AND THE ADMINISTRATIVE STATE 7
RONCARELLI V DUPLESSIS (SCC, 1959) 8
MANITOBA LANGUAGE RIGHTS REFERENCE (SCC, 1985) 8
SECESSION REFERENCE (SCC, 1998) 8

III. SOURCES OF THE OBLIGATION OF PROCEDURAL FAIRNESS 8

PROCEDURAL RIGHTS CAN BE DIVIDED INTO TWO MAJOR THEMES 8
SOURCES 8
COOPER V. BOARD OF WORKS FOR WANDSWORTH DISTRICT (1863) – HOUSE TORN DOWN 8
NICHOLSON V. HALDIMAND-NORFOLK POLICE COMMISSIONERS (1979) (SCC) – DISMISSED POLICE 9
KNIGHT V. INDIAN HEAD SCHOOL DIVISION NO. 19 (1990) (SCC) – DISMISSED DIRECTOR OF EDUCATION 9
THE DUNSMUIR EXCEPTION 9

IV. THE THRESHOLD FOR PROCEDURAL FAIRNESS 10

COMMON LAW THRESHOLD 10
R. V. LEGISLATIVE COMMITTEE OF THE CHURCH ASSEMBLY (1928) (KB) – ORIGINAL THRESHOLD 10
NICHOLSON: 10
MARTINEAU V MATSQUI INMATE DISCIPLINARY BOARD (1980) (SCC) – INMATES DISCIPLINED 10
CARDINAL V DIRECTOR OF KENT INSTITUTION (1985) (SCC) – PRISONER DISASSOCIATED 10
WELLS V NEWFOUNDLAND (1999) (SCC) – LEGISLATURE REMOVED JOB 10
AUTHORSON V CANADA (ATTORNEY GENERAL) (2003) (SCC) – INTEREST OWED TO DISABLED VETERANS 10
DECISIONS OF A LEGISLATIVE AND A GENERAL NATURE 10
CANADA (ATTORNEY-GENERAL) V. INUIT TAPIRISAT OF CANADA (1980) (SCC) – BELL RATE INCREASE 10
CANADIAN DOCTORS FOR REFUGEE CARE V CANADA (ATTORNEY GENERAL) (2014) (FC) – REFUGEE HEALTH COVERAGE 11
FAI INSURANCES V WINNEKE (1982) (HIGH COURT OF AUSTRALIA) – REJECTION AFTER 20 YEARS 11
HOMEX REALTY AND DEVELOPMENT CO. LTD. V. WYOMING (1980) (SCC) – MUNICIPALITY VS. HOMEX 11
VANDERKLOET V LEEDS & GRENVILLE (COUNTY BOARD OF EDUCATION) (1985) (ONCA) – ALLOCATE STUDENTS TO DIFF SCHOOLS 11
BEZAIRE V WINDSOR ROMAN CATHOLIC SEPARATE SCHOOL BOARD (1992) (DIV CT) – SCHOOL CLOSURE (ON) 11
ELLIOTT V BURIN PENINSULA SCHOOL DISTRICT NO 7 (1998) (NFCA) – SCHOOL CLOSURE (NF) 11
CANADIAN ASSOCIATION OF REGULATED IMPORTERS V. CANADA (ATTORNEY GENERAL) (1993) (FCTD), REV’D (1994) (FCCA) – EGG
IMPORT 11
INDIVIDUALIZED DECISION-MAKING BASED ON EXERCISE OF DISCRETION 12
IDZIAK V CANADA (MINISTER OF JUSTICE) (1992) (SCC) – SURRENDER AFTER DEPORTATION ORDER 12
DECISIONS AFFECTING RIGHTS, PRIVILEGES OR INTERESTS 12
RE WEBB AND ONTARIO HOUSING CORP (1978) (ONCA) – TERMINATION OF LOW INCOME HOUSING 12
HUTFIELD V. BOARD OF FORT SASKATCHEWAN GENERAL HOSPITAL (1986) (ABQB) – DOCTOR REFUSED JOB 12
KAHIN V CANADA (MINISTER OF TRANSPORT) (2010) (FC) – SECURITY CLEARANCE 12
LAZAROV V SECRETARY OF STATE OF CANADA (1973) (FCA) – NO CITIZENSHIP DUE TO RCMP REPORT 12
LUKAJ V CANADA (MINISTER OF CITIZENSHIP AND IMMIGRATION) (2013) (FC) – SPONSORSHIP APPLICATION PAUSE 12
EVERETT V CANADA (MINISTER OF FISHERIES AND OCEANS) (1994) (FCA) – NON-RENWAL OF FISHERY LICENSE 13
RE ABEL AND ADVISORY REVIEW BOARD (1979) (ONCA) – DISCLOSURE OF MENTAL HOSPITAL REPORT 13
RE MUNRO (1993) (SKCA) – TEACHING LICENSE 13
CONWAY V ONTARIO (ATTORNEY GENERAL) (1991) (ON DIV CT) 13
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ATHABASCA CHIPEWYAN FIRST NATION V ALBERTA (2018) (ABQB) – DUTY TO CONSULT 13
EMERGENCIES 13
THE QUEEN V RANDOLPH (1966) (SCC) – EMERGENCIES 13
LEGITIMATE EXPECTATION 13
OLD ST BONIFACE RESIDENTS ASSN INC V WINNIPEG (CITY) (1990) (SCC) – DEVELOPMENT 13
REFERENCE RE CANADA ASSISTANCE PLAN (1991) (SCC) – PROVINCE SOCIAL ASSISTANCE $ 14
CANADIAN UNION OF PUBLIC EMPLOYEES AND SERVICE EMPLOYEES INTERNATIONAL UNION V ONTARIO (MINISTER OF LABOUR) (2000)
(SCC) - UNION 14
COUNCIL OF CIVIL SERVICE UNIONS V MINISTER FOR THE CIVIL SERVICE (1985) (HL ENG) – NATIONAL SECURITY INFO 14
CANADA V MAVI (2011) (SCC) – RETURN OF BENEFIT $ IN PR SPONSORSHIP 14
NORTH END COMMUNITY HEALTH ASSN V HALIFAX (REGIONAL MUNICIPALITY) (2014) (NSCA) – DISPOSAL OF SCHOOL PROPERTIES 14
AGRAIRA V CANADA (2013) (SCC) – ‘NATIONAL SECURITY INTEREST’ 14
MOUNT SINAI HOSPITAL V. QUEBEC (2001) (SCC) – HOSPITAL LICENSE 15
NOEL & LEWIS HOLDINGS LTD V CANADA (1983) (FCTD) – FISHERY LICENSE 15

V. CONTENT OF PROCEDURAL FAIRNESS 15

BAKER V CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) (1999) (SCC) – JAMAICA CITIZENSHIP 15
GENERAL PROCEDURAL STATUTE – ALBERTA’S ADMINISTRATIVE PROCEDURES AND JURISDICTION ACT 16

VI. PRE-HEARING ISSUES 17

NOTICE 17
RE CENTRAL ONTARIO COALITION AND ONTARIO HYDRO (1984) (ON DIV CT) – POWER LINE (NO) 17
RE JOINT BOARD UNDER THE CONSOLIDATED HEARINGS ACT AND ONTARIO HYDRO ET AL (1985) (ON) – POWER LINE (YES) 17
RE CITY OF WINNIPEG AND TORCHINSKY (1981) (MBQB) – ASSESSMENT APPEAL 17
RE RYMAL AND NIAGARA ESCARPMENT COMMISSION (1981) (ONCA) – NOTICE BY MAIL 17
WILKS V CANADA (CITIZENSHIP AND IMMIGRATION) (2009) (FC) – MOVED W/O INFORMING NEW ADDRESS 17
ZELIONY V RED RIVER COLLEGE (2007) (MBQB) – COLLEGE SUSPENSION 17
R V ONTARIO RACING COMMISSION, EX PARTE TAYLOR (1970) (CA) – HORSE & PROHIBITED SUBSTANCE (YES) 17
MAYAN V WORLD PROFESSIONAL CHUCKWAGON ASSN (2011) (ABQB) – CHUCKWAGON (NO) 17
R V CHESTER (1984) (ONHC) – IMPRISONMENT & “AND” 18
CANADA V COMMISSION OF INQUIRY ON THE BLOOD SYSTEM (1997) (SCC) - HIV 18
DISCOVERY 18
CANADA LABOUR RELATIONS BOARD V QUÉBECAIR (1993) (SCC) - DISCOVERY 18
DELAY 18
STANDING AND INTERVENTION 18
FOREST ETHICS ADVOCACY ASSOCIATION V NEB (2014) (FCA) 18

VII. HEARING ISSUES 19

ORAL HEARINGS 19
KHAN V UNIVERSITY OF OTTAWA (1997) (ONCA) – LAW EXAM FAIL 19
DISCLOSURE & ACCESS TO AGENCY INFORMATION 19
KANE V BD OF GOVERNORS OF UBC (1980) (SCC) – PROFESSOR AND IMPROPER USE OF COMPUTER 19
NAPOLI V BRITISH COLUMBIA (1981) (BCCA) – WORK INJURY 20
MISSION INSTITUTION V KHELA (2014) (SCC) – INMATE & INFO ON SOURCES 20
OFFICIAL NOTICE 20
ADMISSIBILITY OF EVIDENCE 20
MILLER (TA) V MINISTER OF HOUSING AND LOCAL GOVERNMENT (1968) (CA) – LETTER VS. WITNESSES 20
UNIVERSITÉ DU QUÉBEC À TROIS-RIVIÈRES V LAROCQUE (1993) (SCC) – ARBITRATOR AND UNIVERSITY 20
NEW BRUNSWICK V BOND (MANAGEMENT BOARD) (1992) (CA) – ARBITRATOR AND SEXUAL ASSAULT 20
RE CLARKE AND SUPERINTENDENT OF BROKERS, INSURANCE, AND REAL ESTATE (1985) (BCCA) – REAL ESTATE LICENSE 20
TIMPAUER V AIR CANADA (1986) (FCA) – SECOND-HAND SMOKING AT WORK 21
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CROSS-EXAMINATION 21
TORONTO NEWSPAPER GUILD AND GLOBE PRINTING (1953) (SCC) – PRINTING COMPANY & CROSS EXAM 21
RE STRATHCONA NO. 20 AND MACLAB ENTERPRISES (1971) (AB SCAD) – POLLUTION REPORT & CROSS 21
DJAKOVIC V BRITISH COLUMBIA (2010) (BCSC) 21

VIII. POST HEARING ISSUES 21

REASONS 21
NEWFOUNDLAND AND LABRADOR NURSES’ UNION V NEWFOUNDLAND AND LABRADOR (TREASURY BOARD) (2011) (SCC) – STANDARD OF
REVIEW FOR REASONS 21
2127423 MANITOBA LTD. O/A LONDON LIMOS V UNICITY TAXI LTD ET AL (2012) (MBCA) – TAXI LICENSE 22
WALL V INDEPENDENT POLICY REVIEW DIRECTOR, 2013 (ONSC, ONCA) – POLICE COMPLAINT SCREENING 22
ALBERTA (INFORMATION AND PRIVACY COMMISSIONER) V ALBERTA TEACHERS’ ASSOCIATION (2011) (SCC) – IMPLIED DECISION 22

IX. BIAS 22
THE GENERAL TEST 23
1. ANTAGONISM DURING THE HEARING 23
CANADIAN COLLEGE OF BUSINESS AND COMPUTERS INC V ONTARIO (PRIVATE CAREER COLLEGES) (2010) (ONCA) – TAMIL TIGERS 23
2. ASSOCIATION BETWEEN PARTY AND DECISION MAKER 23
MARQUES V DYLEX LTD (1977) (ON DIV CT) – LAWFIRM ACTED FOR UNION IN THE PAST 23
TERCEIRA, MELO V LABOURERS INTERNATIONAL UNION OF NORTH AMERICA (2013) (ONSC) – VICE-CHAIR ACTED FOR ONE OF THE PARTIES
23
GEDGE V HEARING AID PRACTITIONERS BOARD (2011) (NLCA) – AUDIOLOGIST DISCIPLINARY PANEL 23
UNITED ENTERPRISES V SASKATCHEWAN (LIQUOR AND GAMING LICENSING COMMISSION) (1997) – BBQ AFTER HEARING 23
3. INVOLVEMENT OF DECISION-MAKER IN EARLIER STAGE OF PROCESS 24
COMMITTEE FOR JUSTICE AND LIBERTY V NATIONAL ENERGY BOARD (1978) (SCC) – STUDY GROUP AND PIPELINE 24
PROVINCE OF NEW BRUNSWICK V COMEAU (2013) (NBCA) – INVESTIGATION AND DM SAME PERSON 24
TOWNSHIP OF VESPRA V ONTARIO (MUNICIPAL BOARD) (1983) (ON DIV CT) – BOARD RE-HEARD CASE 24
4. ATTITUDINAL BIAS 24
PAINE V UNIVERSITY OF TORONTO (1980) (ON DIV CT, ONCA) – PROF APPLYING FOR TENURE 24
PECUNIARY AND OTHER MATERIAL INTERESTS 24
CONVENT OF SACRED HEART V ARMSTRONG’S POINT ASSOCIATION AND BULGIN (1961) (MBCA) – OWNING PROPERTY 24
ENERGY PROBE V CANADA (ATOMIC ENERGY CONTROL BOARD) (1984) (FCA) – NUCLEAR POWER PLANT CABLES 24
PEARLMAN V MANITOBA LAW SOCIETY JUDICIAL COMMITTEE (1991) (SCC) – SELF-INTEREST REDUCE COMPETITION 25
CANADIAN PACIFIC LTD V MATSQUI INDIAN BAND (1995) (SCC) – INDIAN RESERVE & TAX 25
BURNBRAE FARMS V CANADIAN EGG MARKETING AGENCY (1976) (CA) – CEMA MEMBERS 25
NEWFOUNDLAND TELEPHONE CO. V. NEWFOUNDLAND (BOARD OF COMMISSIONERS OF PUBLIC UTILITIES) (1992) (SCC) – EXECUTIVE
OVER-COMPENSATION 25
OLD ST. BONIFACE RESIDENTS ASSN. INC. V. WINNIPEG (CITY) (1990) (SCC) – MUNICIPAL COUNCILOR & DEVELOPER 25
SAVE RICHMOND FARMLAND SOCIETY V RICHMOND (1990) (SCC) – REZONING & PUBLIC APPROVAL 26
SEANIC CANADA V ST JOHNS (2014) (NLTD, NLCA) – ZONING & PUBLIC DISAPPROVAL 26
STATUTORY AUTHORIZATION 26
BROSSEAU V. ALBERTA (SECURITIES COMMISSION) (1981) (SCC) – INVESTIGATIVE & ADJUDICATIVE ROLE 26
EA MANNING V. ONTARIO SECURITIES COMMISSION (1995) (ON DIV CT, ONCA) – POLICY STATEMENT & HEARING 26

X. INSTITUTIONAL DECISION-MAKING 26
IWA V CONSOLIDATED BATHURST (1990) (SCC) – FULL BOARD MEETING 26
AGENCY GUIDELINES 27
THAMOTHAREM V CANADA (MINISTER OF CITIZENSHIP AND IMMIGRATION) (2007) (FCA) – IRB GUIDELINES 27

XI. INDEPENDENCE 28
INDEPENDENCE 28
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2747-3174 QUEBEC INC. V QUEBEC (1996) (SCC) – QUEBEC LIQUOR LICENSING BOARD 28
KATZ V VANCOUVER STOCK EXCHANGE (1995) (SCC) – NOT FIXED TERM TENURE 28
BARREAU DE MONTRÉAL V QUÉBEC (PROCUREURE GÉNÉRALE) (2001) (CA) 28
SETHI V CANADA (MINISTER OF EMPLOYMENT AND IMMIGRATION) (1998) (FCA) – PROPOSED LEGISLATION TO RESTRUCTURE BOARD 28
OCEAN PORT HOTEL LTD. V BRITISH COLUMBIA (2001) (SCC) – STATUTORY AUTHORIZATION 28
OCEAN PORT IN MCKENZIE V MINISTER OF PUBLIC SAFETY AND SOLICITOR GENERAL (2006) (BCSC) – JUDICIAL INDEPENDENCE APPLIES TO
ADM 29
SASKATCHEWAN FEDERATION OF LABOUR V SASKATCHEWAN (2010) (SKCA) – STATUTORY AUTHORIZATION 29
BELL CANADA V CANADIAN TELEPHONE EMPLOYEES ASSOCIATION (2003) (SCC) – STATUTORY AUTHORIZATION 29

XII. AN INTRODUCTION TO SUBSTANTIVE JUDICIAL REVIEW 29

INTRODUCTION 29
PRIVATIVE CLAUSES 29
HIBERNIA MANAGEMENT AND DEVELOPMENT COMPANY LTD V CANADA-NEWFOUNDLAND AND LABRADOR OFFSHORE PETROLEUM BOARD
(2008) (NLCA) – FINAL AND NOT SUBJECT TO REVIEW BY GOV OR MINISTER 29
STATUTORY RIGHTS OF APPEAL 30
CONSTITUTIONAL LIMITS OF PRIVATIVE CLAUSES 30
COURTS AND TRIBUNALS: CONSTITUTIONAL BACKGROUND 30
STATUTORY REMOVAL OF JUDICIAL REVIEW 30
CREVIER V AG (QUEBEC) ET AL (1981) (SCC) – PROFESSIONAL TRIBUNAL NOT VALID 30
THE CONCEPT OF JURISDICTIONAL ERROR 31
PUBLIC SERVICE ALLIANCE OF CANADA V CANADIAN FEDERAL PILOTS ASSOCIATION (2009) (FCA) – BOARD EXCEEDED THE JURISDICTION 31
CUPE, LOCAL 963 V NEW BRUNSWICK LIQUOR CORPORATION (1979) (SCC) – BOARD DID NOT EXCEED JURISDICTION (REPLACING EE WITH
MANAGEMENT) 31
GREEN V ATA (2016) (ABCA) – COMMITTEE’S DECISION EXCEEDED JURISDICTION 31

XIII. DUNSMUIR V. NEW BRUNSWICK AND ITS BACKGROUND 32

AFTER CUPE: EVOLUTION OF THE PRAGMATIC AND FUNCTIONAL APPROACH 32
PUSHPANATHAN V CANADA (CITIZENSHIP & IMMIGRATION) (1998) (SCC) - SOR BEFORE DUNSMUIR (UN REFUGEE) 32
EXPERTISE AS A FACTOR IN STANDARD OF REVIEW ANALYSIS 32
PEZIM V BRITISH COLUMBIA (SUPERINTENDENT OF BROKERS) (1994) (SCC) – QUESTION FELL WITHIN ADM’S EXPERTISE (BC SECURITIES
COMMISSION – MATERIAL CHANGE) 33
CANADA (DIRECTOR OF INVESTIGATION & RESEARCH) V SOUTHAM (1997) (SCC) – COMPETITION - DEFERENCE 33
LAW SOCIETY OF NEW BRUNSWICK V RYAN (2003) (SCR) – LAW SOCIETY - DEFERENCE 33
BISHOP V ALBERTA COLLEGE OF OPTOMETRISTS (2009) (ABCA) – COLLEGE OF OPTOMETRIST - DEFERENCE 33
TERVITA CORP V CANADA (COMMISSIONER OF COMPETITION) (2015) (SCC) – LANGUAGE IN COMPETITIONS ACT - CORRECTNESS 33
DR. Q. V COLLEGE OF PHYSICIANS AND SURGEONS (2003) (SCC) – WRONG STANDARD OF REVIEW APPLIED (DOCTOR/PATIENT SEX) 34
DUNSMUIR V. NEW BRUNSWICK (2008) (SCC) 34
CANADA (CANADIAN HUMAN RIGHTS COMMISSION) V CANADA (ATTORNEY GENERAL) (2011) (SCC) – ROLE OF PRECEDENT POST-DUNSMUIR
35
CANADA (CITIZENSHIP AND IMMIGRATION) V KHOSA (SCC) – POST-DUNSMUIR PATENT UNREASONABLENESS 35

XIV. STANDARD OF REVIEW 35

FACTUAL QUESTIONS 35
QUESTIONS OF LAW 36
PUSHPANATHAN V CANADA (CITIZENSHIP & IMMIGRATION) (1998) (SCC) – PRE-DUNSMUIR – QUESTION OF LAW – CORRECTNESS (IRB)
36
ELGIE V ALBERTA (WORKERS’ COMPENSATION, APPEALS COMMISSION) (2009) (ABCA) – QUESTION OF LAW – CORRECTNESS (WCB) 36
NOR-MAN REGIONAL HEALTH AUTHORITY INC V MANITOBA ASSOCIATION OF HEALTH CARE PROFESSIONALS (2011) (SCC) – QUESTION OF
LAW - REASONABLENESS (LABOUR ARBITRATOR) 36

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CANADA (CANADIAN HUMAN RIGHTS COMMISSION) V CANADA (ATTORNEY GENERAL) (2011) (SCC) – QUESTION OF LAW –
REASONABLENESS (HUMAN RIGHTS LEGAL COST) 36
ALBERTA (INFORMATION AND PRIVACY COMMISSIONER) V ALBERTA TEACHERS’ ASSOCIATION (2011) (SCC) – REASONABLENSS (PERSONAL
INFORMATION PROTECTION ACT) 36
ROGERS COMMUNICATIONS INC V SOCIETY OF COMPOSERS, AUTHORS AND MUSIC PUBLISHERS OF CANADA (2012) (SCC) – CORRECTNESS
(COPYRIGHT ACT) 36
MCLEAN V BRITISH COLUMBIA (SECURITIES COMMISSION) (2013) (SCC) – REASONABLENESS (BC SECURITIES COMMISSION) 37
INVESTMENT DEALERS ASSOCIATION OF CANADA V DASS (2008) (BCCA) – REASONABLENESS (IDA) 37
ALBERTA WORKERS COMPENSATION BOARD V APPEALS COMMISSION (2005) (ABCA) – PRE-DUNSMUIR – PATENT UNREASONABLENESS
(WCB) 37
DISCRETIONARY AND POLICY QUESTIONS 37
CANADA (CITIZENSHIP & IMMIGRATION) V KHOSA (2009) (SCC) – REASONABLENESS (IAD) 37
THE DISAGGREGATION DILEMMA: LEVIS AND VIA RAIL 38
LÉVIS (CITY) V FRATERNITÉ DES POLICIERS DE LÉVIS INC (2007) (SCC) - DISAGGREGATION 38
COUNCIL OF CANADIANS WITH DISABILITIES V VIA RAIL CANADA INC (2007) (SCC) 38
MOUVEMENT LAÏQUE QUÉBÉCOIS V SAGUENAY (2015) (SCC) - DISAGGREGATION 38
SMITH V. ALLIANCE PIPELINE LTD. (2011) (SCC) 38
ALBERTA (INFORMATION AND PRIVACY COMMISSIONER) V. ALBERTA TEACHERS' ASSOCIATION, 2011 SCC 61 38
WILSON V. ATOMIC ENERGY OF CANADA LTD., 2016 SCC 29 38
MINISTER OF CITIZENSHIP AND IMMIGRATION V ALEXANDER VAVILOV (AMICI CURIAE FACTUM) (2018) 38

XV. APPLYING THE STANDARD OF REVIEW 39

CORRECTNESS REVIEW 39
PUSHPANATHAN V CANADA (MINISTER OF CITIZENSHIP AND IMMIGRATION) (SCC) (1998) – CORRECTNESS APPLICATION (INTERPRETATION OF
UN PRINCIPLES AND APPLICATION) 39
NORTHROP GRUMMAN OVERSEAS SERVICES CORP V CANADA (AG) (2009) (SCC) – CORRECTNESS APPLICATION (AIT REVIEW) 39
STEWART V WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMITTEE (2008) (NBCA)- CORRECTNESS APPLICATION (IMPORT DEF’N
FROM ONE STATUTE TO ANOTHER) 40
REASONABLENESS REVIEW 40
COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA V IRVING PULP & PAPER LTD. (2013) (SCC) – APPLICATION OF
REASONABLENESS (ALCOHOL TESTING  REASONABLE) 40
MCLEAN V BRITISH COLUMBIA SECURITIES COMMISSION (2013) (SCC) – APPLICATION OF REASONABLENESS (BC SECURITIES COMMISSION
 REASONABLE) 41
NFLD AND LAB. (TREASURY BD) V NFLD AND LAB. NURSES’ UNION (2011) (SCC) – APPLICATION OF REASONABLENESS (PART TIME NURSE 
REASONABLE) 41
ALBERTA (INFORMATION AND PRIVACY COMMISSIONER) V ALBERTA TEACHER’S ASSOCIATION (2011) (SCC) – IMPLICIT DECISION 41
REASONABLENESS: CORRECTNESS IN DISGUISE? 42

XVI. JURISDICTION OF TRIBUNALS AND THE CONSTITUTION 42

NOVA SCOTIA (WORKERS' COMPENSATION BOARD) V MARTIN (2003) (SCC) – WORKER’S COMPENSATION APPEAL TRIBUNAL
HAS JURISDICTION OVER CHARTER ISSUES 42
R. V CONWAY (2012) (SCC) – ONTARIO REVIEW BOARD HAS JURISDICTION TO GRANT S. 24(1) REMEDIES 43
DORÉ V BARREAU DU QUÉBEC (2012) (SCC) – DECISION OF COUNCIL WAS REASONABLE (ANGRY LAWYER) 43
TRINITY WESTERN UNIVERSITY V LAW SOCIETY OF BRITISH COLUMBIA – LSBC’S DECISION WAS REASONABLE 43

XVII. ADMINISTRATIVE LAW AND INDIGENOUS RIGHTS 44

RIO TINTO ALCAN INC V CARRIER SEKANI TRIBUNAL COUNCIL (2010) (SCC) – COMMISSION HAD JURISDICTION TO CONSIDER DTCA 44
CHIPPEWAS OF THE THAMES V ENBRIDGE PIPELINES INC. (2017) (SCC) – NEB’S DECISION MET DTCA 45
CLYDE RIVER (HAMLET) V PETROLEUM GEO-SERVICES INC. (2017) (SCC) – NEB’S DECISION DID NOT MEET DTCA 45

XVIII. REMEDIES IN ADMINISTRATIVE LAW 45

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DISCRETIONARY BARS TO REMEDIES 45
OLD WRITS: 46
JUDICIAL REVIEW AVAILABLE? 46
STATUTORY REFORM: 46
ALBERTA RULES OF COURT: 47
ODHAVJI V WOODHOUSE (2003) (SCC) – TORT OF MISFEASANCE (PRIVATE LAW) 47

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 I. The Administrative State
What is administrative law?
- Field of law that has its concern the statutes, principles, and the rules that govern the operations of government and its
various emanations.
o Law governing the implementation of public programs, particularly at the point of delivery, where they are likely to
have their most immediate impact on the lives and rights of individuals.
- Administrative law plays a role in a wide range of specialized areas of regulation and dispute resolution:
o Employment / Regulated Industries / Economic Activities / Profession and Trades / Social Control (ex.
incarceration) / Human Rights / Income Support / Public service

Institutions of the administrative state

o Legislatures: leading public forum where the most important political decisions taken in the name of the electorate are
explained, debated, and potentially approved.
o Cabinets and ministers: Cabinets are made up of various ministers and is chaired by the PM or premier, who assigns
ministerial responsibilities.
o Municipalities
o Crown corporations
o Private bodies and public functions (ex. universities, stock exchange)
o Independent administrative agencies:
 Independent from government department /Typically engage with individuals, though some set policy /
Specialized
 Varies in the spectrum of  Court like --- Policy-Making 
 As compared to the governmental department:
 Less partisan pressure, longer-term consistent policies, impartiality in appearance and fact.
 As compared to courts:
 Polycentric decision / wider array of tools / expertise / cheaper / informal

II. Oversight of Regulatory Agencies: The Rule of Law and The Administrative
State
- Before we get to Judicial Review – we should consider:
o Legislative oversight of administrative process: however limited resources.
 Alternative - Ombudsperson: investigates, obtains information & recommends remedy.
o Administrative Remedies: reconsideration of the decision / internal appeals.
- How do things end up in court?
o Original Jurisdiction (s. 24 remedy, other cause of action) / Appeals created by statute / Inherent jurisdiction held
by courts.
o Remedies 
 Certiorari: quash or set aside a decision
 Prohibition: order a tribunal not to proceed in a matter. (very rare)
 Mandamus: order the performance of a public duty (orders certain decision)
 Quo Warranto: order to show the basis for the decision (very rare).
 Habeas Corpus: issues to determine the legality of a person’s detention with a view to ordering the
release of a person who is unlawfully imprisoned.
o Grounds of Review – four principal grounds of judicial review when no statutory right to appeal:
 Procedural impropriety
 Illegality
 Unreasonableness
 Unconstitutionality

- Dicey and the Rule of Law:

o That no one should be made to suffer except for a distinct breach of the law
o That government and citizens alike are subject to the general law of the land
o That the law of government should be administered in the ordinary courts and not in specialized system of
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 administrative courts.
- The Functionalist Critique
o Because Law & Policy intertwined  we need to give more to specialized agencies more likely to appreciate
specific contexts.
o Courts do have a role, but should show deference which they are not expert.

Roncarelli v Duplessis (SCC, 1959)

- Facts: Case concerning a discretionary order by Premier Duplessis to the liquor licensing commission to revoke the
restaurant license.
- Held: Quashed decision to revoke the license.
- Rule of law is an “unwritten principle”  “No untrammeled discretion” in Canadian Law
o No government official has a freedom to do whatever they want.

Manitoba Language Rights Reference (SCC, 1985)

- Facts & Held: In coming to the conclusion to issue a temporary suspension while the province translates all statutes to
French, the court used the followed reason.
- Rule of Law includes Principle of Legality, which means:
o No one above the law (Dicey)
o Law and order are indispensable in organized political community

Secession Reference (SCC, 1998)

- Rule of Law constrains legislative sovereignty AND courts’ ability to substitute their views for those of their executive
(Functionalist view).

III. Sources of the Obligation of Procedural Fairness

Procedural rights can be divided into two major themes
- 1) the entitlement to procedural rights, or the “threshold.” What are the kinds of decisions for which some procedural
rights should be given?
o Threshold  Are you owed fairness in your set of circumstances?
- 2) the choice of the procedures to be required, assuming the threshold will be crossed.
o Choice of procedures  what does fairness require? / what rights are appropriate?
 Notice? Oral/Written? Disclosure? Cross-X? Representation?
- These two themes are interdependent.

Sources
- Enabling Statute: may set out a detailed list of procedural requirements that decision-makers must follow in making specific
decisions.
- Subordinate Legislation: delegates authority to set procedural rules.
- Policies and Guidelines: “soft law”
- General Procedural Statutes: Alberta Administrative Procedures and Jurisdiction Act
- Constitutional and quasi-constitutional enactments
o Canadian Charter of Rights and Freedoms: s. 7 … in accordance with principles of fundamental justice.
o Quasi-Constitutional
 Canadian Bill of Rights: Right to fair hearing
 Québec Charter of Human Rights and Freedoms: full and equal, public and fair hearing by an independent
and impartial tribunal
- Common Law
o Entitled to be heard by the authority (audi alteram partem, the decision-maker must “hear the other side”)
o In an impartial and independent hearing (nemo judex in sua causa, the decision-maker must not be “a judge in his
own cause”).

Cooper v. Board of Works for Wandsworth District (1863) – House torn down
- Facts: Cooper built a house  claimed that he sent required notice to Board of Works  Board did not receive it, therefore
tore it down pursuant to Metropolis Local Management Act.

8
 - Held: Board had an obligation to provide notice prior to tearing down the house.
- Reasons (Erle CJ):
o Board ought to give notice to P as “no man is to be deprived of his property without having an opportunity of being
heard.” This right to be heard is NOT limited to judicial hearings.
- Reasons (Byles J):
o Where the statute is silent on the issue of right to hearing, then “the common law will supply the omission of the
legislature,” hence the common law procedural fairness requirements will apply.
- Notes:
o Following Cooper, courts applied natural justice only to judicial and quasi-judicial decisions  this distinction
became untenable over the years.

Nicholson v. Haldimand-Norfolk Police Commissioners (1979) (SCC) – Dismissed

Police
- Facts: Nichson served as police for 15 months  Board fired him without hearing pursuant to Police Act, which gave
discretion to let go of constable who served less than 18 months.
- Held: Board failed procedural fairness by dismissing Nicholson without a chance to appeal.
- Reasons (Laskin):
o Legislation has displaced common law by ignoring right to hearing for those served under 18 months  However,
Nicolson cannot be denied of ANY protection; he should be treated “fairly” and not arbitrarily.
o Distinction between administrative vs. judicial/quasi-judicial is unstable  Duty of fairness in administrative
field exists.
o Duty of fairness in administrative law may not require all rights of 18 monther, but something  in this case,
provision of reasons and opportunity to respond  once decision is made fairly, it is not reviewable.
- Reasons (Martlant) – Dissent:
o Decision was purely administrative as Nicholson was effectively a probationary period.

Knight v. Indian Head School Division No. 19 (1990) (SCC) – Dismissed Director of
Education
- Facts: Board of education dismissed Knight (director of education) when he refused to accept a renewal contract for a
shorter term  Knight argued he was entitled to procedural fairness before being dismissed.
- Issue: whether procedural fairness was due for an office-holder at pleasure.
o Held: (4) PF due, but was met / (3) no PF due.
- Reasons (L’heureux-Dube) – Majority:
o The existence of a general duty to act fairly will depend on the consideration of three factors:
 (i) the nature of the decision to be made by the administrative body;
 No distinction between judicial/quasi-judicial vs. administrative.
 Distinction between legislative and general nature (no duty to act fairly) vs. administrative and
specific nature (yes duty to act fairly).
o Finality of decision will also be a factor.
 In this case, decision was final and specific nature  Yes PF.
 (ii) the relationship existing between that body and the individual;
 In this case, Knight held a public office, at pleasure of the Board AND there was no obligation to
show cause.
 (iii) the effect of that decision on the individual’s rights.
 PF if the decision is a significant one and has an important impact on the individual.
 In this case, employment was an important issue for Knight.
  Therefore, general right to procedural fairness exists.
o Concept of procedural fairness is eminently variable and its content is to be decided in the specific context of
each case.
 Since the respondent could be dismissed at pleasure, the content of the duty of fairness would be minimal
– notice of reasons and opportunity to be heard sufficient.
 In this case, negotiations between two parties satisfied PF as Knight would have been made aware that
the Board would dismiss if he does not accept shorter term contract.

9
The Dunsmuir Exception
- In Dunsmuir v New Brunswick, 2008, SCC changed the view laid down in Knight.
o  public authority that dismisses an employee pursuant to an employment contract is not subject to an additional
public law duty of fairness and the public employee seeking to challenge the dismissal is limited to ordinary
contractual remedies.
- However, public law duty of fairness may still apply in the following three circumstances:
o (1) where a public employee is not protected by a contract of employment;
o (2) where an office-holder is expressly subject to summary dismissal; and
o (3) where a duty of fairness impliedly comes from statute.

IV. The Threshold for Procedural Fairness

Common Law Threshold
R. v. Legislative Committee of the Church Assembly (1928) (KB) – Original Threshold
- Threshold:
o Decision must be final
o Must be related to rights
o Exercise of Judicial Power
Nicholson:
- Judicial/administrative distinction declines.

Martineau v Matsqui Inmate Disciplinary Board (1980) (SCC) – Inmates Disciplined

- Facts: two inmates were disciplined and alleged they were not given a hearing.
- Held (Majority – Pigeon): YES PF  BUT remedy only for serious injustice.
- Minority (Dickson): fairness applies even though not a judicial body.

Cardinal v Director of Kent Institution (1985) (SCC) – Prisoner Disassociated

- Held: YES PF  Hearing was required for a decision by prison officials to keep a prisoner “dissociated” for security reasons.
o Inmates need broader PF as the decision has a serious effect.
o There is a duty of procedural fairness lying in every public authority making an administrative decision which is
not of a legislative nature and which affects the rights, privileges or interests of an individual.
o Right to a hearing is independent, unqualified right which finds it essential justification in the sense of
procedural justice which any person affected by an administrative decision is entitled to have – whether it
would change the result is irrelevant.

Wells v Newfoundland (1999) (SCC) – Legislature removed Job

- Facts: Wells was let go when NF legislature enacted an Act that removed his position.
- Held: NO PF owed - Loss resulted from legislative and general decision.

Authorson v Canada (Attorney General) (2003) (SCC) – Interest owed to Disabled

Veterans
- Facts: Parliament extinguished claims of disabled veterans to interest owed before 1990.
- Held: NO PF owed - SCC denied veterans’ claims that they were entitled to right to notice.

Decisions of a Legislative and a General Nature

Canada (Attorney-General) v. Inuit Tapirisat of Canada (1980) (SCC) – Bell rate increase
- Facts: Governor in Council has a broad discretion (“at any time” / “in his discretion”) to review Canadian Radio-Television
and Telecommunication Commission’s tariff  Bell successfully applied for rate increase  Inuit Tapirisat intervened and
appealed to Cabinet  CRTC made a submission as part of the appeal  Inuit Tapirisat was not provided with this
submission  After the Cabinet meeting, the appeal was dismissed  Inuit Tapirisat claimed that hearing should have been
given or if the hearing had been given, it did not comply with principles of natural justice.
- Held (Estey): NO PF owed.
o Statutory interpretation – broad power granted to the Governor in Council.
o Distinction should be made between: administrative vs. legislative. (NOT judicial)

10
  Considering:
 Was decision the legislature’s in the past?
 Does this affect one individual or a lot of people?
o In this case, setting the tariff is a legislative and polycentric decision  requiring notice and fair hearing for all
affected parties would be cumbersome  Parliament did not intend duty of fairness.
o NOTE: substance of decision seemed to be what mattered (vs. identity of decision-maker).

Canadian Doctors for Refugee Care v Canada (Attorney General) (2014) (FC) – Refugee
Health Coverage
- Facts: Governor in Council passed two orders that significantly reduced the level of health coverage provided to refugee 
affected parties argued that orders were invalid as no notice was given.
- Held: NO PF owed.
o Whether a duty to observe natural justice or procedural fairness exists in a given case depends on a number of
factors, including the subject matter of the decision in question, the consequences of the decision for those
affected by it, and the number of people involved.

FAI Insurances v Winneke (1982) (High Court of Australia) – Rejection after 20 years
- Facts: Governor in Council rejected FAI’s application for approval after renewing approval for 20 years, dismissing FAI’s
request for more information and opportunity to make submission.
- Held: YES PF  FAI had legitimate expectation of renewal based on succession of prior approvals. Also, decision had to with
financial stability of the insurer, not purely policy decision.

Homex Realty and Development Co. Ltd. v. Wyoming (1980) (SCC) – Municipality vs.
Homex
- Facts: Municipality made a bylaw that resulted in lots in subdivision not being able to be conveyed unless new plan
registered or consents were provided by Municipality, without notice.
- Held (Majority – Estey): YES PF  Municipality owed a duty of fairness to Homex, however appeal was dismissed based on
Homex’s conduct.
o Action taken by Municipality was quasi-judicial  Nothing in statute displace a right to be heard  Duty of
fairness owed, but appeal dismissed based on Homex’s conduct.
- Dissent (Dickson):
o This was not a decision of legislative nature:
 No conflict between competing interests of private individuals, but a question of public interest 
However, presence of public interest does not limit private individual’s right to fairness.
o By-law was aimed at limiting rights of Homex (identity of the claimant is relevant) and was silent on notice
Municipality should have provided notice and an opportunity to be heard, as Homex did not know that by-law
would pass.

Vanderkloet v Leeds & Grenville (County Board of Education) (1985) (ONCA) – Allocate
Students to Diff Schools
- Facts: Group challenged the school board’s decision to reallocate students to different elementary schools  Minister had
issued guidelines requiring public consultation and participation and Board had policies that required various alternatives
known to community before decision to school closing.
- Held: NO PF owed  Reallocation is not equal to school closing  policies did not apply  principles of procedural fairness
not applicable.

Bezaire v Windsor Roman Catholic Separate School Board (1992) (Div Ct) – School
Closure (ON)
- Facts: school board closed schools without consultation despite ministerial guidelines.
- Held: YES PF  Case involves school closing  guidelines applied  procedural fairness failed.

Elliott v Burin Peninsula School District No 7 (1998) (NFCA) – School Closure (NF)
- Held: YES PF  Case involved school closing  No policy/guidelines on consultation  closing of school was an
administrative function that triggered PF anyways.
o  Cannot be reconciled with Bezaire.
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Canadian Association of Regulated Importers v. Canada (Attorney General) (1993)
(FCTD), rev’d (1994) (FCCA) – Egg Import
- Facts: Ministerial decision changed quota distribution system for importation of eggs and chicks  CARI claimed PF failed as
they have not been consulted.
- FCTD Held (Reed): YES PF  PF failed
o Not necessary for applicants to have a “right” affected (ex. right to import), “interest” is sufficient.
o Classification of decision as being “policy” nature is not important – effect is more important.
o Decision to change allocation was general only for a small segment of population and in its application, it was very
particular  caused economic harm to applicants  implied principle of fairness (“general notice”) existed  PF
failed.
- FCCA Held (Linden): NO PF
o Decision involved legislative/policy decision (ie. Setting quota)  applicants should participate in political process
for remedy.
o No public consultation is provided for in legislation (vs. other statutes that have such provision) – reading
silence as affirmative of no consultation.

Individualized Decision-Making Based on Exercise of Discretion

Idziak v Canada (Minister of Justice) (1992) (SCC) – Surrender after Deportation Order
- Issue: whether minister had obligation of procedural fairness in deciding to surrender a person to a foreign power after
deportation order.
- Held (Cory J): YES PF.
o No clear dichotomy between “legislative” decisions and decisions that target individuals.
o This was a a close case  Minister however owed PF.
- Concurring (La Forest – Concurring):
o Minister was engaged in policy decision – did not have to reveal reason.

Decisions Affecting Rights, Privileges or Interests

Re Webb and Ontario Housing Corp (1978) (ONCA) – Termination of Low Income Housing
- Facts: Web was a tenant of low income housing  OHC and board of directors approved building’s proposal to terminate
her lease because of problems caused by her children  Webb appealed.
- Held: YES PF  PF met.
o Extended PF to all decisions made by government  Distinguished decision to allocate housing (allocation of
benefit – no PF) and decision to terminate lease (taking away benefit already held – yes PF)  Should advise
Webb of complaints and opportunity to answer them.
o There were formal notices and opportunities to remedy by communication from property manager/community
worker  duty met.

Hutfield v. Board of Fort Saskatchewan General Hospital (1986) (ABQB) – Doctor Refused
Job
- Facts: Dr. Hutfield applied to a job  College approved, but Hospital Board rejected  Hutfield applied again  Board
rejected without hearing and without giving reason  Hutfield applied for certiatori (quash) and mandamus (reconsider).
- Held: YES PF  PF NOT met because written report not published.
o Not only right, but “interests will also be protected (Note: unlike Webb, Hutfield was given PF when ‘obtaining
benefit’)
o Where there is duty to act fairly, the content of that duty will vary.
o In this case:
 By-law required Board to consider credentials, training, etc  needed to be part of the reason.
 Where refusal of license casts a slur on reputation or financial stability  need to provide haring.
 General public interest affected to grant or not grant hospital privileges to Dr. Hutfield.

Kahin v Canada (Minister of Transport) (2010) (FC) – Security Clearance

- Facts: Somali refugee needed to obtain security clearance from Transport Canada for his job  Transport Canada denied
based on insufficient information  Kahin argued that he should have been provided with more information and

12
 opportunity address deficiencies.
- Held: YES PF  PF met – only minimal PF needed as no legitimate expectation and few months of employment.

Lazarov v Secretary of State of Canada (1973) (FCA) – No Citizenship due to RCMP

Report
- Facts: Secretary had a discretion to grant citizenship  refused to grant citizenship to Lazaro due to confidential
information received from RCMP, without opportunity for Lazaro to respond.
- Held: YES PF  whenever reason for refusal is peculiar to applicant and is of great importance, individual should be given
an opportunity dispute.

Lukaj v Canada (Minister of Citizenship and Immigration) (2013) (FC) – Sponsorship

Application Pause
- Facts: Citizenship and Immigration Canada announced that it would pause accepting new sponsorship applications for
parents and grandparents, effective next day  Lukaj missed the short deadline.
- Held: NO PF  no vested right to sponsor parents nor did he have a legitimate expectation.

Everett v Canada (Minister of Fisheries and Oceans) (1994) (FCA) – Non-renwal of Fishery
License
- Held: YES PF  fisherman was entitled PF despite the legislation that stated that renewal was at absolute discretion of
minister given decision was due to allegations of infractions of conservation regulations.

Re Abel and Advisory Review Board (1979) (ONCA) – Disclosure of Mental Hospital Report
- Facts: lawyer requested disclosure of report submitted to the Advisory Review Board, that reviewed patients in psychiatric
institutions after being charged with criminal offence and found not guilty  Board denied claiming that it does not have
jurisdiction to order the report.
- Held: YES PF in Preliminary Decisions  PF NOT met as Board did not consider disclosure to applicant based on jurisdiction
issue  Sent back to Board for reconsideration of disclosure.
o Focus on proximity of recommendation to harm  Patient’s only hope for release in this case is recommendation
from the Board  Proximity is great as liberty is of vital concern.
o However, this does not mean that full disclosure was required by natural justice.

Re Munro (1993) (SKCA) – Teaching License

- Held: YES PF  PF NOT met – Committee of SK Teacher’s Federation failed PF by not providing Munro with copy of
discipline committee’s report and not providing opportunity address issue, where his teaching license was at stake.

Conway v Ontario (Attorney General) (1991) (ON Div Ct)

- There could be continuing obligation of PF from recommendatory decision up to financial decision maker, particularly if
reports add new material or present an unfair picture.
- However, this does not mean oral or in-person hearing, access to information and written submission may be sufficient.

Athabasca Chipewyan First Nation v Alberta (2018) (ABQB) – Duty to Consult

- Facts: Aboriginal Consultation Office determined that building of pipeline did not trigger duty to consult to Athabasca
Nation  TransCanada, notwithstanding, consulted with Nation  Project was approved by Regulator  Nation seeks to
quash decision of Office, challenging the procedures and policies used to determine that duty to consult was not triggered,
however does not seek to re-consider the decision of Office or quash the approval of Regulator.
- Held: YES PF (procedural fairness is engaged in determination of whether duty to consult is triggered ).
o Once duty to consult is proven, procedural rights will follow depending on spectrum of adverse impacts.
o In this case, duty of PF requires there be communication (procedure used, evidence considered, reasons) between
Office and Nation when parties disagree on the issue of whether duty to consult is triggered.

Emergencies
The Queen v Randolph (1966) (SCC) – Emergencies
- Held: NO PF  Interim order withdrawing provision of mail services to an individual could be made without hearing, as
decision was based on belief that mail was used for criminal purpose.
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 o Whether initial action without hearing is justified depends on assessment of emergency  highly likely that court
will defer to relevant authority’s judgment on the urgency of situation.
o Once emergency is over, open to reassessment in context of a subsequent hearing.

Legitimate Expectation
- Doctrine originates from Schmidt v. Secretary of State for Home Affairs (1969, Eng CA).
- Supplements theory of “filling in the omission of the legislature.”
- Doctrine was originally tied to applicant’s stake in outcome.

Old St Boniface Residents Assn Inc v Winnipeg (City) (1990) (SCC) – Development
- Facts: Expectation of resident association that there would be no more development of the kind unless association
participates in the decision-making process.
- Held: NO legitimate expectation.
o Legitimate expectation doctrine can be used to give party right to be heard where there would otherwise be
none  however, the doctrine has limits.

Reference re Canada Assistance Plan (1991) (SCC) – Province Social Assistance $

- Facts: Federal government introduced a bill that limited increase in $ to provincial social assistance and welfare programs,
without notice to affected provinces
- Held (Sopinka): NO Legitimate Expectation.
o Legitimate expectation may entitle you to procedures, but does NOT create substantive rights  it cannot require
consent.
o Federal government was acting in legislative capacity  act/promise of previous government cannot bind current
government.

- Notes:
Canadian Union of Public Employees and Service Employees International Union v
Ontario (Minister of Labour) (2000) (SCC) - Union
- Held: NO Legitimate Expectation – representation and past practice claimed by union to have found their legitimate
expectation that government would not change system for appointment of interest arbitrators could not be characterized
as “clear, unambiguous and unqualified.”

Council of Civil Service Unions v Minister for the Civil Service (1985) (HL Eng) – National
Security Info
- Held: YES Legitimate Expectation, but failed due to national security interest.
o Employees and unions had a legitimate expectation that they would be consulted before government forbidding
employees belonging to national trade unions, as it was an invariable rule that prior consultation is held for
decades.

Canada v Mavi (2011) (SCC) – Return of Benefit $ in PR Sponsorship

- Facts: Mavi sponsored their relatives for PR  As part of this framework, Mavi signed undertaking that required them to
reimburse government for cost of benefit provided to sponsored members  Ontario sought to collect $  Mavi claimed
that they were owed PF, in particular of notice of government’s intention to collect.
- Held (Binnie): YES Legitimate Expectation  Legitimate Expectation met.
o Government can be held to procedural undertakings of its officials, provided that representation is “clear,
unambiguous and unqualified” AND such representation is procedural in nature and do not conflict with
decision maker’s statutory duty.
 Generally speaking, government representations will be considered sufficiently precise for purposes of
the doctrine of legitimate expectations if, had they been made in the context of a private law contract,
they would be sufficiently certain to be capable of enforcement.
o Representation in this case highlighted discretion to not collect in certain circumstances (ex. use of “may” and not
collect “in a situation of abuse or in other circumstances...”)  Ontario’s policy that allowed for notice and
representation by sponsors in view of negotiating a repayment plan, satisfied PF.

14
North End Community Health Assn v Halifax (Regional Municipality) (2014) (NSCA) –
Disposal of School Properties
- Facts: Municipality disposed of 18 school properties without adhering to procedure that required them for public
consultation to use properties for community purposes, then to sell at not less than market value.
- Held: YES Legitimate Expectation Legitimate Expectation met.
o Existence of legitimate expectation is just one factor to be considered in formulation of PF.
o Breach of PF can only be established if there was “a substantial deviation from the authority’s representation.”
o Community groups were duly notified and made aware of the process  PF met.

Agraira v Canada (2013) (SCC) – ‘National Security Interest’

- Facts: Agraira found inadmissible to Canada due to his involvement with terrorist organization  Minister provided written
reasons that focused on this involvement, not specifically on ‘national interest’ as mandated by statute  Agraira sought
judicial review, arguing that Minister took narrow reading of ‘national interest’ and the Guidelines published by Citizenship
and Immigration Canada created expectation that extrinsic factors would be taken into consideration.
- Held (LeBel): YES Legitimate Expectation  Legitimate Expectation met.
o The practice or conduct said to give rise to the reasonable expectation must be clear, unambiguous and
unqualified (Mavi).
o An important limit on the doctrine of legitimate expectations is that it CANNOT give rise to SUBSTANTIVE
RIGHTS.
o Guidelines created legitimate expectation (published by CIC and publicly available)  However, Agraira failed to
show that decision of Minister did not consider Guidelines and Minister considered materials in entirety.

Mount Sinai Hospital v. Quebec (2001) (SCC) – Hospital License

- Facts: Hospital has been functioning in violation of license  Minister agreed that license would be regularized with re-
location  Hospital sought to have license updated  New Minister refused as it could cost more $.
- Held (Majority – Bastarche): YES PF (but not based on Legitimate Expectation)  PF NOT met.
o No basis for new minister to overturn the old minister’s decision.
- Concurring (Binnie and McLachlin):
o Decision was patently unreasonable – no evidence that additional spending would be required, no notice, no
opportunity to be heard, no reasons  No need for legitimate expectation.
o Canadian doctrine of Legitimate Expectation is procedural in nature only- NOT substantive.
 Whether expectation is procedural vs. substantive can be determined by looking at if it is for Minister to
determine, or the courts.

Noel & Lewis Holdings Ltd v Canada (1983) (FCTD) – Fishery License
- Held: It was impermissible discrimination for the fisheries authorities to deny a licence transfer to the applicant while
others similarly located were being granted permission to transfer.

V. CONTENT OF PROCEDURAL FAIRNESS

Baker v Canada (Minister of Citizenship & Immigration) (1999) (SCC) – Jamaica
Citizenship
- Facts: Baker worked in Canada illegally and had 4 children  Deportation order  Baker applied for exemption based on
humanitarian and compassionate considerations, including children and her psychiatric problems that may get worse if
returned  Exemption denied without reasons  Baker obtained awful notes written by an immigration officer  Baker
appealed for failure of PF.
- Held: YES PF  PF met.
o Duty of fairness applies when: 1) Decision is administrative and 2) Affects rights, privileges, interests of an
individual (Cardinal).
 Content of PF is “eminently variable” (Knight).
 H&C decision affects rights, privileges and interests  PF is triggered in this case.
o Criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of
circumstances (non-exhaustive / non-determinative):
 1) Nature of decisions being made and the process followed in making it.

15
  More judicial  more procedural protection; more administrative  less procedural
protections.
o Judicial: decisions that involve an adjudication between parties, directly or indirectly
affect their rights and obligations, or require the decision-maker to apply substantive
rules to individual case.
 2) Nature of statutory scheme and the “terms of the statute pursuant to which the body operates.”
 Fact-finding (or investigative) power in the preliminary stage?  if yes, then less procedural
protection in the preliminary stage.
 Is there a statutory appeal?  if no appeal procedure, then greater procedural protection as
the decision is final.
 3) Importance of the decision to the individual or individuals affected.
 Contextualized objective test – up to the claimant to convince the court.
 More important  more stringent the procedural protections that will be mandated.
 4) Legitimate expectations of the person challenging the decision.
 Does NOT however create substantive rights.
 If legitimate expectation exists to have certain procedures followed  such procedure will be
required.
 5) Does statute give decision-maker discretion to set procedure?
 If statute provides for discretion to set procedure  then court should defer to their subject
matter expertise and resource allocation.
o  “The values underlying the duty of procedural fairness relate to the principle that the individual or
individuals affected should have the opportunity to present their case fully and fairly, and have decisions
affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the
statutory, institutional, and social context of the decision .”
o In this case, Baker alleged three main procedural defects:
 1) No oral hearing:
 Baker factors applied:
o 1) Nature of decisions: not like a judicial decision at all as high level of discretion  less
protection
o 2) Nature of the statutory scheme: no appeal route  more protection
o 3) Importance of decision: really important  more protection (***)
o 4) Legitimate expectations: none (Convention did not give rise to legitimate expectation
as it is not law in Canada)  less process
o 5) Choice of procedure: statute gives the Minister lots of flexibility as to how to assess
H&C decisions  less protection
  Circumstances require a full and fair consideration of the issues, and the claimant and
others whose important interests are affected by the decision in a fundamental way must have
a meaningful opportunity to present the various types of evidence relevant to their case and
have it fully and fairly considered  However, oral hearing is not always necessary and written
submission is sufficient  NO violation of PF.
 2) No reasons:
 At common law, there is no general requirement of reasons  But, reasons are useful and foster
better decisions  On the other hand, it is costly and causes delay  Flexibility in quality of
reasons may be able to address thijs.
 “it is now appropriate to recognize that, in certain circumstances, the duty of procedural
fairness will require the provision of a written explanation for a decision.”
 In this case, decision was of great importance  Reasons were necessary  Notes from
immigration officer however was sufficient to meet PF.
 3) Reasonable apprehension of bias:
 Test: what would an informed person, viewing the matter realistically and practically – and
having through the matter through – conclude? Would he think that it is more likely than not
that (the decision-maker), whether consciously or unconsciously, would not decide fairly?
 Immigration officers make decisions of great importance  Test applies to all immigration
officers  Reasonable person would see bias in the notes.
o Remedy: decision is quashed and is to be re-determined by another officer.

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General Procedural Statute – Alberta’s Administrative Procedures and Jurisdiction
Act
- Procedures provided:
o Where the Act applies, it provides for adequate notice to affected parties in advance of the exercise of a statutory
power (s. 3).
o Where an authority proposes to act in a manner that adversely affects a party’s rights, the Act guarantees the
party an opportunity to provide evidence and make submissions to the authority (though not necessarily at an in-
person hearing) as well as a right to disclosure of facts and allegations in sufficient detail to allow the party to
understand and respond to the case against it (s. 4).
o Where an authority acts in a manner adverse to a party’s rights, it must provide that party with written reasons,
including its findings of fact (s 7).
- Limited application as per Alberta Administrative Procedures and Jurisdiction Act:
o 1(a.1) land compensation board
o (b) surface rights board
o (c) Alberta transportation safety board
o (g) natural resources conversation board.
-  Hence, COMMON LAW continues to apply due to limited application and the vague language of the Administrative
Procedures and Jurisdiction Act.

VI. PRE-HEARING ISSUES

Notice
- Notice is required for others to be effective  Problems in notice can be categorized as:
o (1) problems about form (written, oral, personal service, public),
o (2) problems about the manner of service,
o (3) problems about time, and
o (4) problems about the contents.

Re Central Ontario Coalition and Ontario Hydro (1984) (ON Div Ct) – Power Line (NO)
- Facts: Ontario Hydro wanted to build a new power line  Personal notice on some municipalities and newspaper
publication for power lines in “Southwestern Ontario”  Board rejected  Affected group claimed that notice was
insufficient.
- Held: Notice was NOT sufficient  “Southwestern Ontario” was not detailed enough (content).

Re Joint Board under the Consolidated Hearings Act and Ontario Hydro et al (1985) (ON)
– Power Line (YES)
- Held: Notice was sufficient  “Eastern Ontario” was sufficient terminology for affected people to understand the notice.

Re City of Winnipeg and Torchinsky (1981) (MBQB) – Assessment Appeal

- Facts: Torchinsky received an assessment describing right of appeal on the day when hearing began.
- Held: Notice was NOT sufficient.

Re Rymal and Niagara Escarpment Commission (1981) (ONCA) – Notice by Mail

- Facts: Landowner received notice and sent it to Commission  Notice was required to be received within 14 days of date
sent  did not meet this deadline.
- Held: Notice was NOT sufficient.
o Court may set aside the deadline if the deadline imposed in notice by mail was inadequate.

Wilks v Canada (Citizenship and Immigration) (2009) (FC) – Moved w/o informing New
Address
- Facts: Applicant appealed a deportation order to Immigration Appeal Division  IAD sent a correspondence requiring his
notice of readiness for hearing, requiring applicant to respond 15 days of receipt  Applicant never received the letter as
he moved and did not inform IAD  Appeal abandoned.
- Held: Sufficient notice provided  IAD had no reason to believe applicant moved as mail was not returned.

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 - 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. clearly, the length of time needed will depend on the nature of the interests and the
issues involved

Zeliony v Red River College (2007) (MBQB) – College Suspension

- Facts: Zeliony appealed suspension from college, claiming that college did not provide her with 48-hour notice of witnesses
that would testify on behalf of her  Zeliony’s counsel had turned down offer of adjournment to not delay resumption of
her class.
- Held: YES PF  PF waived by Zeliony  counsel turned down offer of adjournment.

R v Ontario Racing Commission, ex parte Taylor (1970) (CA) – Horse & Prohibited
Substance (YES)
- Facts: Taylor’s horse got sick  Vet gave him prohibited substance  Commission suspended and fined Taylor.
- Held (TJ): Notice was NOT sufficient because it did not say his license was at risk.
- Held (COA): Notice was sufficient because he ought to have known that his license was at risk.

Mayan v World Professional Chuckwagon Assn (2011) (ABQB) – Chuckwagon (NO)

- Facts: Mayan was involved in altercation with another chuckwagon driver  Mayan received written notice of complaint
for conduct  Board suspended Mayan’s membership.
- Held: Notice was NOT sufficient, as notice did not include all relevant circumstances including possibility of suspension
(difficult to reconcile with Ontario Racing Commission).

R v Chester (1984) (ONHC) – Imprisonment & “AND”

- Facts: Chester was imprisoned  Received notice that transfer to higher security prison was being considered (“your
violent and threatening behaviour AND your assault on a staff member which occurred on July 6, 1982”).
- Held: Notice was NOT sufficient  notice was misleading and inadequate, because it was not possible to determine if ‘AND’
was conjunctive or disjunctive, particularly given that the issue was of a great importance to Chester.
o Length and content of required notice varies with circumstances.

Canada v Commission of Inquiry on the Blood System (1997) (SCC) - HIV

- Facts: HIV breakout  Public inquiry where 25 interest parties were granted standing  Commission counsel asked and
accepted submissions on names of parties that committed misconduct  Commission sent out notices to parties advising
that misconduct may be found  Parties were given 2.5 weeks to respond on whether and how they would respond.
- Held (Cory): YES PF  Notice was sufficient.
o Corporate appellants were not uninformed bystanders; they were fully aware of the investigation.
o Position of one intervenor showed that there was a knowledge early in the process of possibility of findings of
misconduct.
o No statutory requirement that Commissioner give notice as soon as he or she foresees the possibility of an
allegation of misconduct  Timing of notice will depend on circumstances  IN this case, enormous amount of
information gathered Impossible to give adequate detail in notice before all evidence heard  Commission was
justified to provide notice on the last day of hearing  2.5 weeks is sufficient time anyways.
o Determination of whether notice was sufficient is context-specific.

Discovery
Canada Labour Relations Board v Québecair (1993) (SCC) - Discovery
- Facts: Canada Labour Relations Board ordered documents to airlines during investigate, prehearing stage of application by
Canadian Air Line Pilots Association  Airlines failed to produce voluntarily  Board attempted to secure documents
relying on the statute.
- Held: Board had no inherent or incidental powers, only those conferred on it by statute  Statue did not authorize
discovery orders outside formal hearing.

Delay
- Notion that undue delay could amount to a breach of the rules of natural justice or procedural fairness has achieved a
measure of acceptance.

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Standing and Intervention
- Ways to obtain standing: Private interest / Public interest / Statute itself

Forest Ethics Advocacy Association v NEB (2014) (FCA)

- Facts: Board as per National Energy Board Act is obliged to consider representation of those that are “directly affected” 
Ms. Sinclair’s application to participate was denied.
- Held: Sinclair’s application is NOT subject to judicial review.
o Standard of review for procedural fairness is correctness with some deference to the Board’s choice of
procedure.
 In this case, Board is entitled to significant margin of appreciation- master of its own procedure, expertise,
discretion provided by statute, etc.
o The decision to deny Ms. Sinclair participation is a mix of substance and procedure:
 Substance: relevance and materiality of what Ms. Sinclair had to offer to the Board  Dunsmuir test
applied (is the substantive outcome within a range of outcome that is acceptable and defensible on the
facts and the law?)
 Procedure: right to participate  standard of review is correctness with deference.
o Board’s decision to deny Ms. Sinclair participation in the proceeding was reasonable, given 1) balance between
fairness and efficiency and 2) Sinclair’s submission was not relevant to the project.

VII. HEARING ISSUES

Oral Hearings
- Tradition: oral hearing is usually required by natural justice, but not always (Komo Construction v Commission des
relations de Travail du Québec, 1968 SCC)
o Hoffman-La Roche v Delmar Chemical Ltd (1965) (SCC)
 Held: Decision to refuse oral hearing in granting of compulsory patent license was not a denial of natural
justice.
- As natural justice morphed into procedural fairness, preference for oral hearings weakened.
o Nicholson: discretion left on whether to proceed by way of oral or written hearing.
o Baker: allowed for written hearings.
- Oral hearing is preferred where serious issues of credibility involved ( Singh)
o However, in some situations, inquisitorial method (ie. Judge asking questions) is preferable (e.g. sexual
harassment).
o Kindler v Canada (Minister of Justice) (1991) (SCC)
 Held: Minister’s obligation to adhere to PFJ in extradition matters did not warrant imposition of oral
hearing.
o Hundal v Superintendent of Motor Vehicles (1985) (BCCA)
 Held: Suspension of driver’s license engaged s. 7, but did not warrant oral hearing.

Khan v University of Ottawa (1997) (ONCA) – Law Exam Fail

- Facts: Khan submitted 4th answer booklet in addition to 3 booklets named 1/3, 2/3 and 3/3  Failed exam and delayed
graduation  Appealed her grade to Faculty Examination Committee on the grounds that 4 th booklet was not graded 
Committee met without providing notice and oral hearing.
- Held (Laskin): YES PF  PF NOT met as oral hearing was required.
o Effect of failed year is very serious for university student  high standard of justice.
o Examination Committee should have:
 Given oral hearing as Khan’s credibility was of a critical issue.
 Onus was on the student to identify error  Question was whether Khan lied about writing a 4 th
booklet.
 Considered procedures during and after examination to see if procedures were proper.
 Given opportunity to Khan to correct or contradict factors relied on by Committee.
 Factors were circumstantial evidence that came down to credibility issue.
o Oral hearing is more likely to be given if there is a credibility issue, regardless of whether decision-maker
references that this is of an issue.
- Dissent (Finlayson): NO PF
o Real issue was whether there was error or injustice in grading the exam –not about credibility.
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 o Quality of the 3 known booklets was poor.
o Cannot impose burden on the Committee to prove non-existence of 4 th booklet  this is reversal of burden.
o Khan had fair opportunity to be heard in writing and proceeding was not adversarial  Issue therefore was not
of credibility – there was no allegation against Khan.
o Administrative tribunals must balance fairness and efficiency.
o Distinguished from Singh as 1) Khan is invoking requirement of natural justice, not PFJ and 2) gravity of rights in
Singh was of more importance.

Disclosure & Access to Agency Information

- Party is entitled to be allowed an adequate opportunity to respond and know what evidence and representations have
been given  this common law notion supplements access to information statute.
o Disclosure is a basic element of common law of natural justice and is usually required unless some competing
interest prevails.

Kane v Bd of Governors of UBC (1980) (SCC) – Professor and Improper Use of Computer
- Facts: Professor suspended by president for improper use of computer facilities  Board (with president present) held a
hearing and met without Kane to discuss the case  Board alleged that president did not participate in discussion  Kane
appealed.
- Held: YES PF  Disclosure of necessary facts presented by president was required so that Kane can respond accordingly.

Napoli v British Columbia (1981) (BCCA) – Work Injury

- Facts: Napoli applied for compensation from work injury  Appealed decision to Board of Review Provided with 4-page
summary of information on file from WCB and 16 page summary from Board (which did not include medical doctors
including names of doctors)  Board dismissed appeal  Napoli appealed to Commissioner.
- Held: YES PF  PF failed for not giving the full medical report.
o High standard of justice is required given significant impact the decision will have on Napoli’s future.
o Fairness requires that original report be disclosed in order for claimant to effectively answer case against him 
Report contained damaging statements that Napoli would have challenged.

Mission Institution v Khela (2014) (SCC) – Inmate & Info on Sources

- Facts: Khela is serving a life sentence at medium security facility  Involuntarily transferred to maximum security facility on
an “emergency basis” based on the information that Khela was responsible for organizing stabbing of inmate  Khela
asked for scoring matrix and information on sources  Warren provide “Referral Decision Sheet” that showed warren
overriding security rating  Khela appealed.
- Held (LeBel): YES PF  PF failed  Habeas Corpus granted; return to medium security institution.
o Where liberty interest is at stake, PF includes evidence verification.
o However, statute allowed for non-disclosure only if security was of concern; but the onus was on the decision
maker to justify withholding information  This provision was not invoked in this case.

Official Notice
- Official notice = administrative law version of judicial notice.
- Tension exists between fairness vs. convenience.
o The basic principle is that extra-record facts should be assumed whenever it is convenient to assume them, except
that convenience should always yield to the requirement of procedural fairness.
o KC Davis: Tension can be resolved on the basis of: adjudicative vs. legislative facts (only adjudicative requires
evidence) / centrality of facts to the outcome / uncertainty of facts.
Admissibility of Evidence
- Administrative tribunals are more relaxed to evidentiary issues like hearsay, but PF can lead to inclusion/exclusion of the
information  If allegations/consequences serious, relying only on hearsay can be a violation of PF.

Miller (TA) v Minister of Housing and Local Government (1968) (CA) – Letter vs.
Witnesses
- Held: YES PF  PF met - Court relied on both the letter from managing director of business vs. witnesses.
o A tribunal of this kind is master of its own procedure, provided that the rules of natural justice are applied. most of
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 the evidence here was on oath, but that is no reason why hearsay should not be admitted where it can fairly be
regarded as reliable. Tribunals are entitled to act on any material which is logically probative, even though it is not
evidence in a court of law.
o Hearsay is admissible before tribunal – simply must give other side a fair opportunity to comment or contract it.

Université du Québec à Trois-Rivières v Larocque (1993) (SCC) – Arbitrator and

University
- Held: YES PF  PF met
o Quashed arbitrator’s decision to deny admission of evidence in university’s dismissal case, despite that it was
supported by broad statutory discretion.
o Discretionary decisions over the admissibility of evidence must not remove the entitlement of affected persons to
have a reasonable opportunity to make their case.

New Brunswick v Bond (Management Board) (1992) (CA) – Arbitrator and Sexual Assault
- Held: YES PF  PF NOT met
o Arbitrator relied on hearsay evidence when victim did not testify  CA set aside arbitrator’s decision to dismiss
sexual assault case.

Re Clarke and Superintendent of Brokers, Insurance, and Real Estate (1985) (BCCA) –
Real Estate License
- Held: YES PF  PF met.
o Real Estate Agent surrendered license when charged with theft and fraud  She was acquitted and applied for
reissuance of license  Superintendent admitted transcript evidence from criminal proceeding  License not
issued  Transcript was admissible.

Timpauer v Air Canada (1986) (FCA) – Second-hand Smoking at Work

- Held: YES PF  PF not met.
o Timpauer complained about second-hand smoking at work  Labour Board refused to hear from experts that
would testify on general nature of smoking and his doctors  Board should have heard from doctors, but okay not
to hear from experts.

Cross-Examination
Toronto Newspaper Guild and Globe Printing (1953) (SCC) – Printing Company & Cross
Exam
- Facts: Guild applied to Labour Board to be certified as a bargaining agent for employees of Printing Company  Company
wanted to cross-examine to see if some employees left union after application was made  Board refused.
- Held: YES PF  PF failed as no Cross - Cross-Examination was the most effective way the Company had to test the merits of
application.

Re Strathcona No. 20 and MacLab Enterprises (1971) (AB SCAD) – Pollution Report &
Cross
- Facts: Board directed agricultural land be rezoned to residential  Decision was appealed by group that felt the land was
unsuitable for residential purpose due to pollution from neighbouring industries  Group sought to admit report from Dr.
on pollution  Developer wanted to cross  Board refused Cross, but allowed for parties to respond by writing.
- Held: YES PF  PF met.
o Importance of cross-examination will vary with nature of case being heard.
o Developers were given “fair opportunity to correct or controvert any relevant statement brought forward to his
prejudice” by being allowed to submit written responses.

Djakovic v British Columbia (2010) (BCSC)

- Facts: Djakobic sought for compensation for low back injury during physio  Claim denied and appealed  He wanted to
cross-examine staff members  Tribunal denied cross-examination, but allowed evidence in writing  Tribunal dismissed
appeal.
- Held: YES PF  PF NOT met.

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 o Application of Baker factors:
 Process bears resemblance to courts.
 No further appeals.
 Decision was important to Djakovic.
 No legitimate expectation engaged.
 Deference required as Tribunal has expertise and is allowed to set its own procedures.
  significant degree of procedural fairness.
o Issue to be raised on cross-examination was central to the case.
o Written submissions were unsatisfactory.
o Question of credibility was at issue.
o  Tribunal took the “unacceptable risk that not all information that could have affected its decision was placed
before it”
- Ratio:

VIII. POST HEARING ISSUES

Reasons
- Baker held that there is no general requirement to provide reasons - In Baker itself, it was obviously the importance of the
interest at stake that triggered the obligation.

Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury

Board) (2011) (SCC) – Standard of Review for Reasons
- Quality of reason was not a question of PF – any challenge to reasoning/result of the decision should be made within the
reasonableness analysis.
o Therefore, the analysis should follow: 1) was there a duty to provide reasons? Then 2) were reasons actually
provided? (just need to constitute as ‘reasons’ – no question of quality).
- Standard of review for administrative decision is reasonableness; Standard of review for procedural fairness is
correctness.

2127423 Manitoba Ltd. o/a London Limos v Unicity Taxi Ltd et al (2012) (MBCA) –
Taxi License
- Facts: London Limos applied for taxi license  Unicity Taxi opposed  Board issued license without written reasons, but
record of haring existed  Unicity appealed.
- Held: YES PF  PF met (record of hearing constituted as ‘reasons’)
o Marine Atlantic Inc. (2000) (FCA) held that there is an obligation on parties to request reasons from tribunal.
o In this specific case, it is not necessary to decide the case on the basis that reasons were not requested –
however, the fact that reasons were not requested will be taken into consideration.
o Transcript constituted as ‘reasons’ as a person could understand rational behind the Board’s decision based on
the transcript.
 Transcript showed that the evidence produced at hearing and submissions made by both parties made it
clear that Board was alive to the question at issue.

Wall v Independent Policy Review Director, 2013 (ONSC, ONCA) – Police Complaint
Screening
- Facts: Wall arrested for wearing disguise at G20 summit  Released without charge  Complained about police
misconduct  Police Services Act allowed not to deal with complaint if made more than 6 months ago  Act also required
director to consider 3 factors (minor/disability, subject to criminal proceeding, public interest) in making determination 
Director dismissed complaint stating that complaint was over 6 months ago.
- Held (ONSC): YES PF  PF NOT met as NO reason was provided.
o This is a screening case therefore degree of PF not high.
 However, 1) final decision, 2) police serves public interest, 3) statute requires to take into consideration of
3 factors and 4) legitimate expectation exists as reasons are required by statute.
o What will constitute reasons in any given situation will vary widely, depending on the context and the nature of
the decision being made.
 Gray [v Director of the Ontario Disability Support Program (2002) (CA): Reasons must set out findings of

22
 facts and principal evidence and must address major points in issue.
 At minimum, must answer “why?”
o In this case, letter from Director failed to provide reasons as none of the 3 factors were mentioned  Absence of
reasons.
- Held (ONCA): YES PF  PF NOT met as the reason was INADEQUATE.
o Statutory and common law prerequisite for reasons exist in this case.
o Letter is devoid of any ADEQUATE reasons to allow for judicial review of Director’s decision to screen out
complaint.
o Director’s argument that this will put strain on resources dismissed – detailed reasons are not required and
resource allocation does not provide excuse from Director’s statutory duty.

Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association (2011)

(SCC) – Implied Decision
- Remitting the issue to the tribunal is not necessarily the appropriate option available to a court when it is asked to review a
tribunal’s implied decision on an issue that was not raised before the tribunal  when a reasonable basis for the decision is
apparent to the reviewing court, it will generally be unnecessary to remit the decision to the tribunal.

IX. BIAS
- Courts almost always not concerned about inquiry into the actual state of an adjudicator’s mind Instead, they generally
ask whether the particular situation of the decision-maker gives rise to a sufficient risk that an impermissible degree of bias
will exist.
o Decision is “tainted by bias if it is driven by or based on illegitimate interests or irrelevant considerations, such as
the decision-maker’s pecuniary interests, relationships with parties, and preconceived attitudes toward the issues
at stake in the proceedings”
o There is something of a sliding scale, with more leniency or toleration in the domain of discretionary decision-
making having a high policy content VS. in the case of more judicialized proceedings to determine objective facts
and questions of law and focusing on an individual or a narrow range of individuals.
o Administrative independence does not have constitutional status of a judicial independence.

The General Test

- TEST: “the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying
themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that
test is ‘what would an informed person, viewing the matter realistically and practically—and having thought the matter
through—conclude.’” (Committee for Justice and Liberty v. Nat’l Energy Board (1978, SCC), aff’d in Matsqui (1995, SCC))
- Traditional forms of bias leading to disqualification ( Energy Probe v. Canada, 1994 FCA):
o Kinship / friendship / partisanship / professional or business relationship with a party / animosity towards
interested person / predetermined mind
o All give rise to questions of degree
- Whatever test is used, there are certain interests that traditionally have been seen as giving rise to disqualifying bias. We
classify these into four categories:
o 1) antagonism during a hearing by a decision-maker toward a party (or his or her counsel or witnesses);
o 2) an association between one of the parties and a decision-maker;
o 3) an involvement by a decision-maker in a preliminary stage of the decision; and
o 4) an attitude of a decision-maker toward the outcome.

1. Antagonism During the Hearing

- Could be:
o Aggressive questioning or comments
o Comments about the substantive issue
o May occur in writing (ie. Baker)
o  However, measured expressions of disapproval is allowed to control the process

Canadian College of Business and Computers Inc v Ontario (Private Career Colleges)
(2010) (ONCA) – Tamil Tigers
- Held: YES PF  PF NOT met (YES bias).
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 o Adjudicator’s conduct (of asking party of irrelevant question of involvement with Tamil Tigers) gave rise to
reasonable apprehension of bias because “an objective observer of hearing would reasonably conclude that she
had pre-judged the party’s credibility.”

2. Association Between Party and Decision Maker

Marques v Dylex Ltd (1977) (ON Div Ct) – Lawfirm Acted for Union in the Past
- Facts: Employer challenged decision of Labour Board because one of the members had been a member of law firm that
acted for union in the past.
- Held: YES PF  PF met (NO bias).
o Did not represent union / had nothing to do with present proceedings / over a year has elapsed since he had
anything to do with the union.

Terceira, Melo v Labourers International Union of North America (2013) (ONSC) – Vice-
Chair Acted for one of the Parties
- Held: YES PF  PF NOT met (YES bias).
o Decision of Board overturned as the Board’s Vice-Chair had acted for one of the parties 7 years ago.

Gedge v Hearing Aid Practitioners Board (2011) (NLCA) – Audiologist Disciplinary Panel
- Held: YES PF  PF NOT met (YES bias).
o Disciplinary tribunal of impugned misconduct of audiologist contained: 1) primary competitor, 2) gf of former
business partner (with whom applicant had bitter relationship) and 3) member of public.

United Enterprises v Saskatchewan (Liquor and Gaming Licensing Commission) (1997) –

BBQ after Hearing
- Facts: members of commission and commissions counsel arrive together through side door for the hearing  On four other
occasions, when applicant is invited into the hearing room, the counsel for opposition was already there  At the end of
the hearing, the commission chair asks the opposition counsel if he will be attending the BBQ tonight.
- Held: YES PF  PF NOT met (YES bias).
o Informality is not equal to familiarity; however, repetition and cumulative effect of all of the factors were sufficient
to give rise to reasonable apprehension of bias.

3. Involvement of Decision-maker in earlier stage of process

Committee for Justice and Liberty v National Energy Board (1978) (SCC) – Study Group
and Pipeline
- Facts: Chairman of National Energy Board had been a president of Canada Development Corporation, which was part of the
study group companies that formed the applicant co, Arctic Gas Pipeline company.
- Held: YES PF  PF NOT met (YES bias).
o Study group discussed issues of economic and financial feasibility, which were the same issues of the board 
does NOT matter if other factors were considered, decision was tainted by prior involvement.

Province of New Brunswick v Comeau (2013) (NBCA) – Investigation and DM same person
- Facts: Minister of Social Development disciplines two employees of adult residential facility  Decision came from
investigation that was initiated and conducted in part by director who made final recommendation of investigation.
- Held: YES PF  PF NOT met (YES bias).
o Bias exists where investigation and decision-making carried out by same person.

Township of Vespra v Ontario (Municipal Board) (1983) (ON Div Ct) – Board Re-heard
Case
- Facts: Board who originally heard Vespra’s case re-heard aspects of case, without new evidence.
- Held: YES PF  PF NOT met (YES bias).

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4. Attitudinal Bias
Paine v University of Toronto (1980) (ON Div Ct, ONCA) – Prof Applying for Tenure
- Facts: Prof applied for tenure  Department accepted assessment from all tenured members, which included one negative
assessment  Committee, including that member, met and declined tenure application  Prof appealed  Appeal
dismissed  Prof sought judicial review.
- Held (ON Div Ct): YES PF  PF NOT met.
o Process was fair – there is nothing inconsistent between fairness and being judged by one’s peers  But the
presence of that member constituted unfairness.
- Held (ONCA): YES PF  PF met.
o (Weatherson) no evidence that that person dominated the proceeding – plus not one person approved Paine’s
application.
o (MacKinnon)
 There was an internal appeal mechanism  such appeal committee dismissed bias claims.
 Parties contractually agreed to have disputes resolved in certain way and there was no “flagrant violation”
of procedural fairness.

Pecuniary and other material interests

- = Financial Interest.
- For a long time, it was accepted that even the slightest whiff of a financial interest was sufficient to disqualify. However, the
English court of Appeal recognized a de minimis exception (Locabali v Bayfield Properties, ENG CA, 2000)

Convent of Sacred Heart v Armstrong’s Point Association and Bulgin (1961) (MBCA) –
Owning Property
- Facts: Issue of building a convent in certain area where municipality’s approval was required  Member of zoning
committee owned part of impugned property.
- Held: YES PF  PF NOT met (YES bias).
o Co-ownership of property in area affected by decision led to an impermissible bias due to pecuniary interest held.

Energy Probe v Canada (Atomic Energy Control Board) (1984) (FCA) – Nuclear Power
Plant Cables
- Facts: Atomic Energy Control Board proposed to renew license of nuclear facility operated by Ontario Hydro  Energy
Probe objected on the basis that one board member was president of company that supplied cables to nuclear plants and
was member of organizations that supported nuclear power.
- Held: YES PF  PF met (NO bias).
o Mere possibility that profit could be realized in the future is too alien, contingent and remote to constitute
pecuniary bias.
o Financial interest must be DIRECT (ie. Not too remote, contingent, speculative).

Pearlman v Manitoba Law Society Judicial Committee (1991) (SCC) – Self-interest Reduce
Competition
- Held: YES PF  PF met (NO bias).
o Court rejected argument that professional discipline committee composed of fellow members was biased because
of the self-interest in reducing competition by way of suspending or expelling other professionals in their field.

Canadian Pacific Ltd v Matsqui Indian Band (1995) (SCC) – Indian Reserve & Tax
- Held: YES PF  PF met (NO bias).
o No bias in having Indian Band members sit on appeal tribunals that determine tax assessment for use of land on
Indian reserves, as the tax collected is for the community, not individual.

Burnbrae Farms v Canadian Egg Marketing Agency (1976) (CA) – CEMA Members
- Facts: Producer that was denied license alleged bias in Canadian Egg Marketing Agency.
- Held: YES PF  PF met (NO bias).
o Statute authorized for at least 7 out of 12 members of the Canadian Egg Marketing Agency to be producers in
other provinces.
25
Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public
Utilities) (1992) (SCC) – Executive Over-Compensation
- Facts: Mr. Wells was one of 5 Board’s Commissioners  Board conducted public hearing on NF Telephone’s costs and
accounts  Wells was a consumer advocate and made comments criticizing executive over-compensation before decision
made  Board disallowed cost of enhanced pension plan for execs.
- Held (Cory): YES PF  PF NOT met (YES bias; due to specific statement made by Wells).
o Composition of board should reflect diversity and may include consumer advocate.
o Rules of bias is different for varying types of boards:
 Primarily adjudicative board:
 Standard = No reasonable apprehension of bias.
 Popularly elected boards:
 Standard = no closed mind (pre-judgment makes submission futile).
 Policy-setting board:
 Standard = closer to popularly elected boards.
 Municipal board falls into this category.
o Public utilities boards do not apply abstract legal principles to a dispute, but decides a legislative policy  there is
no reason for judicial standard of neutrality.
o Board members can make public comment during investigation, but cannot indicate “closed mind.”  However,
once hearing date set, no reasonable apprehension of bias allowed (application of test must be flexible - not as
strict as purely adjudicative body).
o In this case, Wells’ statements before hearing did not constitute as ‘closed mind’, but statements during and after
hearing gave rise to reasonable apprehension of bias (already made up his mind).

Old St. Boniface Residents Assn. Inc. v. Winnipeg (City) (1990) (SCC) – Municipal
Councilor & Developer
- Facts: City approved to build two condos  Residents’ association attempted to block the decision on the basis that
municipal councilor had been involved with approval process from the beginning.
- Held (Sopinka): YES PF  PF met (NO bias).
o Content of PF for tribunal should be determined based on a number of factors including the terms of the statute
pursuant to which the body operates, the nature of the particular function and the type of decision it is called upon
to make.
o Role of municipal councilor examined:
 Involved in preparation and processing of development.
 May take a stance on the development –legislature cannot punish councilor for very reason he may be
elected.
o Test therefore is one which requires that the objectors or supporters be heard by members of Council who are
capable of being persuaded (= closed mind test).
o In this case, he previously supported development and no evidence of other relationship with developer  NO
evidence that he had a closed mind.

Save Richmond Farmland Society v Richmond (1990) (SCC) – Rezoning & Public
Approval
- Facts: Society challenged township’s approval of rezoning bylaw, on the basis that one of the councilors said in public that
he would listen attentively but he would not change his mind on approval
- Held (La Forest): YES PF  PF met (NO bias).
o There is no way of gauging openness of a person’s mind – “amenable to persuasion” test is untenable.
o In this case, decision making process is a located at the legislative end  Decision maker is entitled to bring a
closed mind to the decision-making process, provided that the “closed mind is the result of not of corruption,
but of honest opinions strongly held.”

Seanic Canada v St Johns (2014) (NLTD, NLCA) – Zoning & Public Disapproval
- Facts: Councilor who took part in decision of council in deciding zoning for assisted care senior living facility indicated at
earlier public meeting, that he made up his mind to oppose application.

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 - Held (NLTD): YES PF  PF NOT met (YES bias).
o Evidence suggests that he came with a closed mind so determined that any representation to the contrary would
be futile, due to view of his constituents and not legitimate planning considerations.
- Held (NLCA): YES PF  PF met (NO bias).
o Seanic failed to demonstrate councilor was not amenable to persuasion – he was simply listening to his
constituents.

Statutory Authorization
- Statute may authorize for impugned bias (including prior involvement).

Brosseau v. Alberta (Securities Commission) (1981) (SCC) – Investigative &

Adjudicative Role
- Facts: Chair of Commission instructed to investigate Brosseau on making flase or misleading statements in company’s
prospectus  Chair was designated to sit on panel  Brosseau argued that this gave rise to apprehension of bias.
- Held (L’Heureux-Dube): YES PF  PF met (NO bias – statutorily authorized).
o Commission had a statutory power of formal investigation  therefore, this implies that Commission had a power
of informal investigation also.
o Security commission, by their nature, undertake several different functions  As a result of this, they will have
repeated dealings with same parties in both administrative and adjudicative capacity.
 In this case, there is no evidence that Chair went beyond the statutory duties.
o So long as the Chairman did not act outside of his statutory authority, and so long as there is no evidence to
show involvement above and beyond the mere fact of the Chairman’s fulfilling his statutory duties, a
“reasonable apprehension of bias” affecting the Commission as a whole cannot be said to exist.

EA Manning v. Ontario Securities Commission (1995) (ON Div Ct, ONCA) – Policy
Statement & Hearing
- Facts: Commission issued policy statement indicating that it considered action of ten securities dealer to be improper and
unfair sales practice  Commission then called for hearing against one of dealers (EA Manning)  ON Div Ct held that
statements was outside statutory authority as Commission determined that dealers were guilty before hearing through
its policy statement  Members that were NOT part of original Commission was appointed for hearing against EA Manning
 EA Manning appealed claiming that Commission should have been precluded from holding a hearing altogether.
- Held (ONCA): YES PF  PF met (NO bias).
o No evidence of prejudgment on the part of new commissioners.

X. INSTITUTIONAL DECISION-MAKING
IWA v Consolidated Bathurst (1990) (SCC) – Full board meeting
- Facts: (Note: Pre-Baker)
o Union made an application to the Ontario Labor Relations Board for a determination that the employer had failed
to bargain in good faith The Union argued that the employer should be required to disclose potential plant
disclosure during negotiation of a collective agreements  3 members of the board held the hearing  They then
discussed it with other members at the full board meeting  Found in favour of Union  Employer argued that
decision was improperly made as the hearing evidence was discussed by the 3 members with other members in an
informal meeting  Decision was made by the Board in favour of union: 1) emphasized workload of Board, 2)
Board is not a court and incorporates law and policy into decision making  need for Full Board meeting to discuss
policy and 3) Panel reains responsibility to decide anyways.
- Held (Gonthier – Majority): YES PF  PF met.
o Natural justice applies  But unrealistic for boards to bide by same rules as courts.
  Reframes question as: given importance of policy, can rules of natural justice allow full board
meetings without parties? (weight advantages vs. disadvantages)
o In this case:
 Board has broad powers and discretion  Need relaxation of PF as boards can grant remedy that courts
cannot.
 Enlarged panel is impractical way of solving issues, based on workload of the Board.

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  Allowing parties rights at full board meetings also impractical.
 Full board meeting gives benefit of policy experience and uniformity in terms of decision making.
 Here, panel members heard all evidence  and they were the ones that made the decision.
 Judges discuss with other judges all the time in a court-setting  this is good for quality of decisions.
 Discussions do not compromise independence  Decision is still up to the panel.
 Meetings set up at initiative of panel who makes the decision; attendance is voluntary and no
attendance taken.
 Factual issues not discussed and no new matters discussed – audi alteram partem more lenient
on decisions that involve law and policy.
  No evidence that meeting affected outcome  In fact, there were 3 sets of reasons (ie. All panel
members wrote reason) with 1 dissent.
o The rules of natural justice must have the flexibility required to take into account the institutional pressures
faced by modern administrative tribunals as well as the risks inherent in such practice.
- Held (Sopinka – Dissent): YES PF  PF NOT met.
o In this case:
 No record of attendance and no minutes  creates a problem of transparency.
 Full Board meetings may have had influence.
 Parties to dispute have no access  Appearance of injustice is enough to overturn the decision.
 Board has broad powers granted.
 Degree of importance was high to the applicant, therefore higher levels of PF.
 Full board meetings could be statutorily authorized  But statute is silent here.
o  Natural justice concerns: Full board did not hear facts & Parties were not at the meeting to respond to the
discussion held at the meeting (including an attack on policy)

Agency Guidelines
Thamotharem v Canada (Minister of Citizenship and Immigration) (2007) (FCA) – IRB
Guidelines
- Facts:
o Guidelines 7 of Immigration Refugee Board governed refugee hearings and the order of questioning of refugee
claimant  Allowed order of questioning to vary in exceptional circumstances.
- Held: Guideline 7 is NOT unauthorized because it is a fetter of RPD members’ exercise of discretion in the conduct of
hearings.
o Guidelines are generally good for consistency  however, guidelines are NOT law.
 If guideline is blindly applied, then decision maker’s discretion is fettered, as the guidelines CANNOT be
mandatory.
o In this case, the guideline was NOT mandatory:
 There was no evidence of rigid application of that Guidelines.
 Expectation to provide reasons for deviating from guideline helped to ensure that members do not
arbitrarily ignore guidelines and to develop criteria for exceptional circumstances.
o Evidence in the present case does not establish that a reasonable person would think that RPD members’
independence was unduly constrained by Guideline 7.

XI. INDEPENDENCE
Independence
- Independence can be viewed in several ways:
o Individual independence as a decision maker.
 independence of a decision maker individually – should be independent in decision making against
other decision makers
o Institutional independence from government.
- Test (Lippe): standard of “a fully informed person” and whether that person would have a reasonable apprehension of
bias in “a substantial number of cases.”

2747-3174 Quebec Inc. v Quebec (1996) (SCC) – Quebec liquor licensing board
- Facts:
o S. 23 of Quebec Charter requires judicial or quasi-judicial tribunal to be “independent & impartial.”  Company
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 whose liquor license was revoked started an institutional bias challenge to Regie, that managed liquor licensing, in
that: The Act authorizes employees of the Régie to participate in the investigation, the filing of complaints, the
presentation of the case to the directors and the decision.
- Held (Gonthier): YES PF  PF NOT met; Quebec liquor licensing statute contained an institutional bias.
o Institutional structures can create impartiality and independence problems.
o  Apply the Institutional Bias test: reasonable apprehension of bias in a substantial number of cases.
o In this case:
 Participation of members in various stages of case (function of prosecutor and adjudicator for directors)
 Inconsistent with s. 23 of the Quebec Charter.
o No independence issue  Although director has a short-term, judicial independence cannot be strictly applied
to ADM.

Katz v Vancouver Stock Exchange (1995) (SCC) – Not fixed term tenure
- Facts:
o Members of the disciplinary committee of the Vancouver Stock Exchange were not appointed for any set term and,
aside from the external legal member, were not paid.
- Held: No Bias as members seemed to continue to serve until voluntary resignation or death and members did not rely on
the stock exchange for $.

Barreau de Montréal v Québec (Procureure générale) (2001) (CA)

- Held: YES bias  Members of the Tribunal administratif du Québec may not be sufficiently independent to adjudicate cases
objectively.
o Committee struck to decide their reappointment included a Justice ministry official and the tribunal chair.
o Provisions linking tribunal members’ salary increases to the outcome of performance evaluations by the tribunal
chair.

Sethi v Canada (Minister of Employment and Immigration) (1998) (FCA) – Proposed

Legislation to Restructure Board
- Facts:
o Individual whose refugee claim was denied at an initial stage claimed an apprehension of bias in association with
his application to the Immigration Appeal Board, arguing that government’s proposed legislation to restructure the
board made board dependent on government for potential appointment.
- Held: NO bias  Board is well informed and would not think that denying application for refugee pleases government.

Ocean Port Hotel Ltd. v British Columbia (2001) (SCC) – Statutory authorization
- Facts:
o Challenge was brought to the structure of the BC Liquor Licensing Board in that the members of the board lacked
sufficient security of tenure to ensure their independence (part-time, fixed-term appointments and members could
be removed at pleasure).
- Held (McLachlin): NO Bias; authorized by statute.
o Silence/ambiguity in statute  common law; but degree of independence required may be ousted by the
express statutory language.
o In the present case, statute is clear with unequivocal statutory language “at pleasure” = board members should
serve at pleasure.

Ocean Port in McKenzie v Minister of Public Safety and Solicitor General (2006) (BCSC) –
Judicial Independence applies to ADM
- Facts: A residential tenancy adjudicator had their appointment rescinded mid-term.
- Held: Unwritten constitutional guarantees of judicial independence extended to residential tenancy adjudicators.

Saskatchewan Federation of Labour v Saskatchewan (2010) (SKCA) – Statutory

Authorization
- Facts:
o A newly elected government issues an order in council that terminated the terms of office of the chair and two
vice-chairs of the Saskatchewan Labor Relations Board Premier said it was necessary because his government
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 lacked confidence in the willingness of the chair and vice chairs to enforce policy changes in the Saskatchewan
Labour legislations Several labour unions sought to quash the order in council.
- Held: NO Bias  Act statutorily authorized for termination.

Bell Canada v Canadian Telephone Employees Association (2003) (SCC) – Statutory

authorization
- Facts:
o Human Rights Act empowers Human Rights Commission to issue guidelines that is binding on tribunal  Act also
authorized tribunal’s chair to extend terms of tribunal members in ongoing inquiries.
- Held: NO Bias  Tribunal’s role in implementing policy was part of legislative scheme.

XII. AN INTRODUCTION TO SUBSTANTIVE JUDICIAL REVIEW

Introduction
- Historically, judicial review of the substance of statutory decision-making was very confined (intervention on jurisdictional
grounds)  Idea of deference emerged.

Privative Clauses
- = Privative clauses are statutory provisions by which legislature purports to limit the scope or intensity of judicial review
of a statutory decision-maker.
- Attitudes of the court over the years led to dissatisfaction of legislature  Started using privative clause to combat 
Interpretative question: what is legislature’s intention?
o Strong vs. weak privative clauses
 Full/Strong: Final & conclusive, no appeal, no judicial review
 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)
 Weak: Just final & conclusive; exclusive jurisdiction (decision maker has “sole” or “exclusive”
jurisdiction on certain matters; without expressing precluding a review by the courts).
 The decision and finding of the board under this Act upon all questions of fact and law are final
and conclusive. (Workers Compensation Act)
- “A statutory direction from Parliament or a legislature indicating the need for deference” But a part of Dusmuir
framework therefore not determinative on its own (Dunsmuir)

Hibernia Management and Development Company Ltd v Canada-Newfoundland and

Labrador Offshore Petroleum Board (2008) (NLCA) – Final and Not subject to review by
gov or minister
- Held: The language of section 30 (“final and not subject to review to gov or minister”) is ambiguous – no reference to courts
= partial privative clause.

Statutory Rights of Appeal

- Statutory Rights of Appeal = Can be a broad or limited right of appeal to a particular court
o Statutory right of appeal is NOT mentioned by Dunsmuir majority as deference factor (although mentioned by
Binnie in concurring opinion)
o Statutory right of appeal to courts  less deference; privative clause  more deference, but neither
determinative
o  Standard of Review analysis applies even where right of appeal exists ( Saguenay)
- Where no right of appeal is included in a statute, then, by default, the common law reserves judicial review for the superior
courts of the respective province (which may carry other common law requirements of standing and the exhaustion of
internal remedies, for example).

Constitutional limits of privative clauses

- In the area of constitutional law, legislation that confers power on public authorities is always subject to challenge where
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 the legislation allegedly disregards the division of powers between Parliament and provincial legislatures as provided for
primarily in ss 91 and 92 of the Constitution Act, 1867.
- Outside of judicial review in constitutional law, however, the situation is not as clear. The Constitution Acts, 1867 to 1982 do
not have any explicit provision dealing with the courts’ power to review decisions of administrative agencies  Possible to
argue that in the absence of any express separation of powers provision, a right to the judicial review of administrative
action should be implied in the constitution based on the judicature provisions of the Constitution Act, 1867, ss 96-101.

Courts and Tribunals: Constitutional Background

- Judicial review needs to be guaranteed to ensure compliance with constitution (Dunsmuir).
- Creation of Admin Tribunal
- ADM cannot supplant role of courts (cannot create a parallel court system as per Constitution)
o Three step test in determining whether the administrative tribunal supplants the courts (Re Residential
Tenancies Act):
 1) Historical function – exclusive court jurisdiction? YES 
 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.”
 3) Institutional setting – still conform with s. 96 power? (is not creating a parallel court system).
 Rent tribunal failed the test – central function was adjudicating disputes between landlords and
tenants (Re Residential Tenancy Act)

Statutory removal of judicial review

Crevier v AG (Quebec) et al (1981) (SCC) – Professional Tribunal NOT valid
- Facts:
o Professional Code created a tribunal that had exclusive jurisdiction, protected by a full privative clause to hear
appeals from disciplinary committeesTribunal consisted of judges from the provincial court The statute
provided that the tribunal’s decisions were final.
- Held: Professional Tribunal was NOT valid.
o Super tribunal is NOT integrated into other acts – cannot be reconciled with other acts that govern
professionals.
o Privative clause sets out no review even on jurisdiction (can’t determine its own jurisdiction)  effectively
becomes s. 96 court.
o Granting a power on questions of law without limitation through statute  Provincial government effectively
becomes a s. 96 court.
- Notes:
o Dunsmuir stated that the standard of review analysis “strives to determine what authority was intended to be
given to the body in relation to the subject matter” and that “this is done within the context of the courts’
constitutional duty to ensure that public authorities do not overreach their lawful powers”; and, further, that “the
inherent power of superior courts to review administrative action and ensure that it does not exceed its jurisdiction
stems from the judicature provisions in ss. 96 to 101 of the Constitution Act, 1867”

The Concept of Jurisdictional Error

Public Service Alliance of Canada v Canadian Federal Pilots Association (2009) (FCA) –
Board exceeded the jurisdiction
- Facts:
o Public Services Labour Relations Board (PSLRB) allocated three positions in the federal public service to an
occupational group other than which accorded with the definitions of the occupational group and its bargaining
unit in the relevant job descriptions  Both the Appellant and the AG appealed this decision because the PSLRB
made a jurisdictional error.
- Held: Board exceeded the jurisdiction.
o True jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power
gives it the authority to decide a particular matter.
 Only example in Dunsmuir was whether City of Calgary was within the legal authority delegated by
Municipal Act (United Taxi Drivers)
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 o Framing the analysis in a standard of review analysis, Jurisdiction exceeded when:
 SOR is correctness  ADM gets legal question wrong.
 SOR is reasonableness  ADM makes unreasonable decision.
o Jurisdictional issue subject to manipulation  Should therefore be narrowly understood.
o To conclude, in order to establish that the Board has exceeded its jurisdiction by misinterpreting a provision in
its enabling statute and the interpretation was unreasonable.

CUPE, Local 963 v New Brunswick Liquor Corporation (1979) (SCC) – Board did NOT
exceed jurisdiction (replacing EE with management)
- Facts:
o Liquor strike in liquor corp Picketing prohibited by statute Corporation used management to replace striking
employees (management were non-employees) S. 102(3) of the Act: the employer shall not replace the striking
employees or fill their position with any other employee  BUT Management’s interpretation – “any employee”
modifies only “fill their position” Board argues that the intention of the statute is to reduce violence by
prohibiting strikebreaking & picketing therefore 1) Prohibition on replacing striking workers absolute and 2) Was
quid pro quo for rule against picketing  Ruled in favour of the Board.
- Held (Dickson): Board did NOT exceed jurisdiction.
o The Board had to inquire to see if act was violated – it needed to know facts and interpret/apply law  Board
had jurisdiction to do this Jurisdiction was not exceeded.
o Clear privative clause and Tribunal here (Labour Board) super-specialized.
o Decision should only be set aside if it is patently unreasonable.
 In this case, interpretation not patently unreasonable, given ambiguity in statute.
 Decision was actually reasonable in the particular context of public sector unionized workforce.

Green v ATA (2016) (ABCA) – Committee’s decision exceeded jurisdiction

- Facts:
o The appellant school teacher was found guilty of unprofessional conduct by the hearing committee of the Alberta
Teacher’s Association (“ATA”)  She is appealing the dismissal of her application for judicial review because the
ATA says a majority is required for a decision to be made  The hearing committee had 4 members, 2 going each
way so it was a tie.
- Held: Appeal Committee exceeded jurisdiction when it dismissed applicant’s appeal on a tie vote.
o Baker test:
 Imposition of a severe reprimand by the Hearing Committee is a matter of critical importance to the
professional reputation.
 Legitimate expectation that a certain specified statutory procedure would be followed, namely, that her
appeal would be dismissed only by a majority of the panel members. 
o Privative clause purported to limit review of ADM’s decision except on questions of jurisdiction  Does not
preclude judicial review which exceeds jurisdiction.

XIII. DUNSMUIR V. NEW BRUNSWICK and its background

After CUPE: Evolution of the Pragmatic and Functional Approach
- UES, Local 298 v Bibeault (1988) (SCC)
o Functionalist or pragmatic approach introduced: 1) focus on intent of legislator, 2) better suited to concept of
jurisdiction and 3) emphasis on role of superior courts.
- The introduction of a factor-based approach to the standard of review analysis raised the prospect that something other
than a strong privative clause could lead a court to defer, even on questions of law, to an administrative decision-maker. It
might allow a tribunal to claim deference based on its specialized expertise alone, for example, as in Pezim and Southam.

Pushpanathan v Canada (Citizenship & Immigration) (1998) (SCC) - SOR before

Dunsmuir (UN Refugee)
- Facts:
o UN Refugee Convention says a person is not a refugee if they have committed acts contrary to the purpose and
principles of the UN Panel of the Immigration and Refugee board, in pursuant to the United Nations Convention
Relating to the Status of Refugees – decided that P is not a refugee because drug trafficking is an act contrary to

32
 the purpose and principles of the UN as set out in article 1F (c)  Federal Court Trial Division dismissed application
for judicial review and certified the serious question as “Is it an error of law for the Refugee Division to interpret
art 1F(c) of the Convention to exclude from refugee status an individual guilty of a serious narcotics offence
committed in Canada?”
- Held (Bastarche): Standard of Review is Correctness; Board erred in its interpretation.
o Central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the
statute creating the tribunal whose decision is being reviewed  Did this legislature intend this to be ADM’s
exclusive decision?
o Jurisdictional question is a question that must be answered correctly.
o Factors in determining the standard of review may be divided into four categories:
 Privative clauses
 Expertise
 Purpose of act as a whole and provision in particular
 Dispute between private parties on rights/entitlements (correctness) vs. Delicate balancing
between different constituencies/ “polycentric” (involves a large number of intertwined interests
and considerations) decisions (reasonableness).
 Nature of the Problem: A question of law or fact?
 Relative expertise – does the ADM have an advantage over the courts in terms of expertise on
the particular question raised by the case?
o Questions of fact – yes ADM does more deference.
o Questions of law – maybe not  less deference.
 Precedential impact – less deference.
o In this case  Correctness:
 Serious question of ‘general’ importance (ie. Precedent setting) at issue  less deference.
 No relative expertise  less deference.
 Not a policy board  less deference.
 Weak privative clause  less deference.

Expertise as a factor in standard of review analysis

- Expertise can be:
o Personal, professional background of individual
o Collective history/institutional memory:
 Developing expertise in subject matter
 Developing expertise in “Field sensitivity”
- Signals of expertise:
o Qualifications
o Statements of purpose in the Act
o Kinds of remedial powers that ADM has
- Dunsmuir: expertise may extend to home statute AND rules of common law or civil law (ex. labour board)

Pezim v British Columbia (Superintendent of Brokers) (1994) (SCC) – Question fell within
ADM’s expertise (BC Securities Commission – Material change)
- Facts:
o Directors and senior managers of companies listed on the VSW  The BC securities commission found the
Appellants had ongoing disclosure obligations, including of material changes in the affairs of a reporting issuer
Pezim was found to have failed to make “material disclosures” and suspended  Appealed the decision in that
commission erroneously interpreted “material change” (no privative clause and statutory right to appeal in place).
- Held (Iacobucci): specific question of law fell within the ADM’s expertise  deference warranted.
o Securities regulation complex and specialized
o Expertise of Commission seen in Act: Broad powers, orders treated as court decisions.
o Commission plays role in policy development  more deference
o Issue here is definition of “material change” This is a question of law, at heart of Commission’s expertise.
o  Result: “Considerable deference” (SoR is reasonableness)

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Canada (Director of Investigation & Research) v Southam (1997) (SCC) – Competition -
Deference
- Facts:
o Southam acquired North Shore News and Real Estate Weekly among 11 other community newspapers The
Competition Tribunal ruled that this created a substantial lessening of competition and required that Southam sell
either the North Shore News or the Real Estate Weekly  Statutory appeal in place.
- Held (Iacobucci): Standard of Review = reasonableness simpliciter.
o “The manner and standard of review will be determined in the way that APPELLATE COURTS generally
determine the posture they will take with respect to the decisions of courts below”  three things will
determine the posture:
 Nature of the problem
 Applicable law
 Expertise of tribunal
o Nature of the Problem before Tribunal  Mixed law and fact.
 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.
o Constating statute has a broad statutory appeal
o Purpose of the statute that the tribunal administers
 The aims of the Act are more “economic” than they are strictly “legal” Requires specialization to
understand competition in an industry  Deference.
o Area of Tribunal’s Expertise – “most important of factors”
 Judicial members share jurisdiction with lay members of mixed fact and law, but judges are
outnumbered by 2:1.
 Particular dispute concerns definition of relevant product market – within expertise.

Law Society of New Brunswick v Ryan (2003) (SCR) – Law society - Deference
- Held: Deference was due to the determination by a law society of the appropriate penalty for a lawyer who was found
guilty of serious professional misconduct.

Bishop v Alberta College of Optometrists (2009) (ABCA) – College of Optometrist -

Deference
- Facts:
o Appeal from the decision of the college of optometrists to discipline members of its profession for misconduct.
- Held: The purpose of the college is to regulate the practice of optometry in the public interest; Question is one directly
within regulatory jurisdiction of the college  deference.

Tervita Corp v Canada (Commissioner of Competition) (2015) (SCC) – Language in

Competitions Act - Correctness
- Held: Language in Competition Act (decision by tribunal is appealable to FCA as if it was determined by federal court) was
specific enough to defeat the standard of review of reasonableness  Correctness.

Dr. Q. v College of Physicians and Surgeons (2003) (SCC) – Wrong standard of review
applied (Doctor/Patient Sex)
- Facts:
o Dr. Q allegedly had sex with patient  College suspended Dr. based on assessment of credibility of patient vs. Dr.
Q.
- Held (McLachlin): BCSC exceeded jurisdiction; order of College of Physicians and Surgeons restated.
o Issues before Inquiry Committee of College:
 Findings of fact / credibility – Question of fact
 Appropriate standard of proof (ex. BoP, BRD) – Question of law
 Application of standard to the facts – Question of mixed fact and law
  Committee applied the standard of “clear and cogent evidence,” which was unchallenged.
o BCSC did NOT defer because it’s an appeal however this was wrong because credibility is quintessential
question of fact and deference was warranted.

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  Standard of review once you are out of the fact-finding stage is the same for all appellants courts;
Committee’s standard of “clear and cogent evidence” does not apply to appellant courts.
o Role of COA was to determine whether TJ chose correct standard of review.
o In the pragmatic and functional approach, the standard of review is determined by considering four contextual
factors: privative clause, expertise (ADM, court, ADM vs. court), purpose of legislation and provision in
particular, nature of question (law, fact or mixed law or fact).
o In this case  Reasonableness simpliciter.
 Broad right of appeal and that the Committee is no more expert than the courts.
 Legislative intent unclear (balancing competing interests vs. adjudicative function)
 Finding of credibility = question of fact.

Dunsmuir v. New Brunswick (2008) (SCC)

- Facts:
o Dunsmuir was a problematic employee at the NB courts, he held a position of statute office  Fired with notice as
permitted by statute (no cause)  Another statute (Public Service Labour Relations Act) said that if EE was
dismissed with cause, adjudicator may substitute for other penalty  Dunsmuir alleged that Gov in fact dismissed
him with cause, bringing him under the statute  An adjudicator was brought forth to determine the matter
between sides  Adjudicator held that EE was entitled to see if he was determined for a cause  Held that
determination was not disciplinary but on employer’s concerns on Dunsmuir’s performance  On judicial review,
NBQB applies standard of correctness  COA applies standard of reasonableness simpliciter.
- Held (Bastarche and Lebel): Standard of Review= Reasonableness
o Judicial review:
 Rule of law is constitutional foundation of judicial review, but courts must avoid undue interference
with ADM functions.
 Legislature cannot completely oust courts’ constitutional power to review.
 How do we balance rule of law vs. legislative supremacy?
 Rule of law maintained when courts have last word on jurisdiction.
 Legislative supremacy maintained because standard of review chosen on basis of legislative
intent.
o Reconsidering standard of judicial review:
 Current approach to judicial review involves three standards of review, which range from correctness,
where no deference is shown, to patent unreasonableness, which is most deferential to the decision
maker, the standard of reasonableness simpliciter lying, theoretically, in the middle  Two different
standards: correctness and reasonableness.
o Standard of Review Analysis (renaming Functional and Pragmatic Approach)
 Step 1: Past case law
 Federalism and other constitutional questions  correctness
 Jurisdictional decisions of tribunal  correctness.
 Consider: Same tribunal, same provision, same Act, AFTER Dunsmuir.
 Step 2: Presumptions Based on NATURE of Question (*** MOST important)
 Fact, discretion, policy  reasonableness.
 Mixed law and fact (because intertwined)  reasonableness.
 Interpreting own statute  reasonableness.
o Criticism exists: courts are as good as interpreting statute.
 Decision-maker has expertise applying outside rule (ex. non-home statute)  reasonableness.
 Question of law of central importance to legal system AND outside ADM’s expertise 
correctness.
o IRB: Question of general importance – same thing?
o EG. Principle of religious neutrality of the state is of central importance to legal system
(Saguenay).
o EG. Principle of solicitor client privilege is of central importance to the legal system
(University of Calgary).
 TRUE questions of vires (jurisdiction)  correctness.
o True jurisdiction questions arise where the tribunal must explicitly determine whether
its statutory grant of power gives it the authority to decide a particular matter.
o EG. Jurisdiction over two competing tribunals (Dunsmuir)

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 o EG. Whether city of Calgary was authorized under Municipal Act to enact bylaws limiting
the number of taxi plate licenses (United Taxi)
 Step 3: Contextual analysis – consider below too:
 1) Privative clause  favours deference, not determinative (constitutional role of courts
preserved)
 2) Purpose of Tribunal
 3) Nature of the question (already answered by Step 2)
 4) Expertise of Tribunal (ex. labour board)
o Application:
 Full privative clause “final and shall not be questioned or reviewed in any court.”  reasonableness
 Labour arbitrators’ expertise  reasonableness
 Legislative purpose was to provide an efficient alternative to courts  reasonableness
 Nature of question was a question of law  does combined application of ss. 97(2.1) and 100.1 of
Public Service Labour Relations Act allow adjudicator to consider ER’s reason for dismissal?  HOME
statute and NOT of central importance to legal system  Reasonableness.
- Held (Deschamps – Concurring):
o If question of law, then standard of correctness SHOULD be applied UNLESS there is a privative clause
Adopted correctness standard as interpretation was on common law, not home statute.

Canada (Canadian Human Rights Commission) v Canada (Attorney General) (2011) (SCC)
– Role of precedent post-Dunsmuir
- Facts:
o Decision by Human Rights Tribunal that the Tribunal had the authority under the Canadian Human Rights Act to
award legal costs to the complainant as a component of “any expenses incurred by the victim as a result of the
discriminatory practice.”
- Held: Consistent line of jurisprudence on standard of correctness on human rights legislations  BUT Dunsmuir came long
 Since home statute/within expertise  Standard of reasonableness.
o A second tension after Dunsmuir was what to do about cases where a statute or the existing jurisprudence
dictated a standard of review that was no longer available in the common law after Dunsmuir. (what if statute
prescribes patent unreasonableness?)

Canada (Citizenship and Immigration) v Khosa (SCC) – Post-Dunsmuir patent

unreasonableness
- Held: Despite Dunsmuir, “patent unreasonableness” will live on in BC – but its content and degree of deference will depend
on Dunsmuir analysis.

XIV. STANDARD OF REVIEW

Factual Questions
- Why does deference apply to factual questions?
o Primary decision-maker has had first-hand access (evidence and regulatory context) to the information on which a
factual assessment was based and to the regulatory context in which the decision was made.
o Not precedent setting.
o Judicial economy.
o On the other hand, this might arguably present opportunities for a decision-maker to insulate a decision from
review by structuring the decision so that it turned on determinations of fact.

Questions of Law
- In Dunsmuir, the majority stated that a court should adopt a correctness standard for questions of law: constitutional
questions, central importance to legal system as a whole and outside ADM’s expertise, and jurisdiction.

Pushpanathan v Canada (Citizenship & Immigration) (1998) (SCC) – Pre-Dunsmuir –

Question of Law – CORRECTNESS (IRB)
- Held: Standard of Review for Immigration Relations Board = Correctness
o Legal issue that is clearly separable from the facts (ex. no need to know type of narcotics)

36
 o No policy questions.
o Question of general importance framed by lower courts.
o *** Prior to Dunsmuir (home statute?)

Elgie v Alberta (Workers’ Compensation, Appeals Commission) (2009) (ABCA) – Question

of Law – CORRECTNESS (WCB)
- Facts:
o Commission upheld a denial of a claim for compensation by the legal spouse of a worker killed in a workplace
accident on the basis that the claimant and her child were not receiving compensation from the worker at the time
of his fatal incident, thus not qualifying as dependents under the Worker’s Compensation Act.
- Held: Standard of Review = Correctness.
o Question of law outside Board’s expertise Terms not specific to Worker’s Compensation setting, but legal
terms of art (commission relied on Black’s Law dictionary)

Nor-Man Regional Health Authority Inc v Manitoba Association of Health Care

Professionals (2011) (SCC) – Question of Law - Reasonableness (labour arbitrator)
- Facts:
o The arbitrator had found in favour of the association’s interpretation of the vacation pay provisions of the
collective agreement However, because of the association’s silence in the face of an employer practice
inconsistent with the agreement, the arbitrator decided that the association should be estopped from asserting its
rights until the termination of the agreement
- Held: Reasonableness  estoppel as a remedy by an arbitration is an interpretation within home statute.

Canada (Canadian Human Rights Commission) v Canada (Attorney General) (2011) (SCC)
– Question of Law – Reasonableness (Human Rights legal cost)
- Held: issue of whether the Canadian Human Rights Tribunal’s remedial power to order compensation for expenses incurred
by victims of discrimination included a power to award legal costs was not a question of general law that warranted
correctness review  Reasonableness.

Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association (2011)

(SCC) – Reasonablenss (Personal Information Protection Act)
- Held: applied the reasonableness standard to the commissioner’s interpretation of a provision in the Personal Information
Protection Act relating to statutory timelines.

Rogers Communications Inc v Society of Composers, Authors and Music Publishers of

Canada (2012) (SCC) – Correctness (Copyright Act)
- Held: applied a correctness standard in a focused review of the copyright Board’s interpretation of what it meant to
broadcast “to the public” in s 3(1)(f ) of the Copyright Act.
o Complainant had an option of disputing in court or ADM  given this choice, there should NOT be two different
sets of standard of review just because of a certain choice that is given to complainant  Correctness.

McLean v British Columbia (Securities Commission) (2013) (SCC) – Reasonableness (BC

Securities Commission)
- Facts:
o BC Securities commission had interpreted s 161(6)(d) of the Securities Act as allowing the commission to calculate
a six-year limitation period for initiating proceedings against a person who entered into settlement agreement with
a securities commission in another jurisdiction, from the date of the settlement agreement instead of the date of
the person’s underlying misconduct.
- Held: reasonableness standard.

Investment Dealers Association of Canada v Dass (2008) (BCCA) – Reasonableness (IDA)

- Facts:
o The case involved a self-regulatory association’s interpretation of its authorizing statute and its bylaws to conclude
that a former member of the association, Dass, was subject to its requirements for a period of five years after
37
 leaving the association.
- Held: Reasonableness standard – Question of law by specialized tribunal with expertise.

Alberta Workers Compensation Board v Appeals Commission (2005) (ABCA) – Pre-

Dunsmuir – Patent Unreasonableness (WCB)
- Facts:
o Individual worker is appealing the denial of his claim through the internal appeals process, concluding with a
hearing before the Appeals commission The commission allowed the appeal and ordered the WCB to pay
benefits WCB appealed the Appeals Commission’s decision to the QB without success, now appealing to the CA
(Statutory appeal for questions of law and jurisdiction and full privative clause on everything else).
- Held: Pre-Dunsmuir Standard of Review = Patent Unreasonableness
o Steps in analysis:
 Characterize the question
 In question of mixed fact and law: extricable question is “was the test laid out correctly?”
 Examine the privative clause or statutory appeal provision
 Consider tribunal’s expertise
 Examine the purpose of statute and provision in particular
 Statutory purpose that requires a tribunal to select from a range of remedial choices or
administrative responses, is concerned with protection of public, engages policy issues or
involving balance of multiple sets of interests or considerations = greater deference.
 Rights between parties, resolved by facts = less deference.
 Then  Select Standard of Review  Apply
o In this case:
 Characterize the question:
 As strict rules of evidence do not apply to Appeals Commission hearings, it follows that the
Appeals Commission’s failure to formally qualify Dr. Flor-Henry to give expert evidence does not
give rise to an arguable question of law or jurisdiction  Then real complaint is weight of
evidence (reliability of the evidence)  This is a question of fact.
 Examine the privative clause or statutory appeal provision: Statutory right of appeal reserved for
questions of law or jurisdiction here  not applicable.
 Expertise: falls within expertise.
 Purpose of statute: no polycentric analysis.
o Commission did not PF by not giving copy of expert notice with sufficient notice as it can follow its own
procedures.

Discretionary and Policy Questions

- Broader grant of discretion: ‘in the public interest’ / ‘in the circumstances’ / ‘in the opinion of’
- Good faith, regardless of this discretion, is required (Roncarelli).

Canada (Citizenship & Immigration) v Khosa (2009) (SCC) – Reasonableness (IAD)

- Facts:
o IAD rejects argument of “sufficient humanitarian and compassionate considerations to warrant special relief in
light of all the circumstances” (s. 67(1)(c) IRPA) in granting the relief to Khosa Federal Court chose patent
unreasonableness  Dunsmuir came along  SCC held that Reasonableness is not meant to be more searching.
- Held: Standard of Review = Reasonableness.
o Discretion granted to IAD to determine whether something is ‘sufficient’ ‘humanitarian and compassionate
consideration.’
o Appellant is seeking discretionary privilege.
o IAD has considerable expertise.

The Disaggregation Dilemma: Levis and Via Rail

- Disaggregation = Breaking the issue down so much so that such narrow issue is subject to correctness review.

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Lévis (City) v Fraternité des policiers de Lévis Inc (2007) (SCC) - Disaggregation
- Held: Decision of a Québec labour arbitrator should be disaggregated because it involved an apparent conflict between two
statutes, the Police Act and the Cities and Towns Act  the arbitrator’s resolution of the conflict was reviewed on a
correctness standard while the rest of the decision attracted a reasonableness standard.

Council of Canadians with Disabilities v VIA Rail Canada Inc (2007) (SCC)
- Facts:
o The tribunal ordered, pursuant to the Canada Transportation Act that VIA Rail implement a series of remedial
measures to address undue obstacles to the mobility of persons with disabilities in 30 of VIA’s train cars.
- Held: Single deferential standard  Agency is responsible for interpreting own statute, including what the statutory
responsibility includes; Agency made a decision with many component parts which fell squarely and inextricably within its
expertise and mandate.

Mouvement laïque québécois v Saguenay (2015) (SCC) - Disaggregation

- Facts:
o Meeting started with the prayer  challenge based on Quebec Charter on freedom of religion issue.
- Held: Disaggregation is appropriate.

Smith v. Alliance Pipeline Ltd. (2011) (SCC)

- Held (Deschamps - minority): Deference based on the fact that the ADM is interpreting home statute is NOT warranted 
Need indicia of expertise in home statute in order to accord deference presumptively.

Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011

SCC 61
- Held: Implicit decisions still attract deference

Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29

- Held (Abella): suggests in obiter having reasonableness for all judicial review.
- Held: (Moldaver, Côté & Brown): argue against presumption of reasonableness for home statute due to contradictory
findings on provisions at play.

Minister of Citizenship and Immigration v Alexander Vavilov (Amici Curiae Factum)

(2018)
- What are the benefits/drawbacks of Dunsmuir approach?
o Efficiency not achieved – contextual analysis still undertaken.
o Less precedential effect – contextual analysis makes the decision less certain.
- Is the approach suggested by the Amici Curiae in Vavilov an improvement?
o First, we must take a step back and view legislative intent at an institutional level and not as a contest of expertise.
 Reliance on expertise is problematic- does not provide a robust theoretical ground for requiring the court
to defer.
 Respect for legislative intent leads to a default rule of deference.
 An institutional default rule of deference signals that courts and ADM each play a role in administration of
justice, but not the same role.
o Second, we must properly account for the rule of law in all its dimensions and differentiate between the
requirement that there be judicial review and the requisite standard of review.
 Search for “true questions of jurisdiction” should be put to rest.
 For constitutional questions, jurisdictional boundaries between ADM, persistent discord that renders law
unintelligible and questions of law of central importance to legal system  correctness review.
o Finally, all of the above is futile if reviewing courts and litigants are not able to differentiate between deferential
and non-deferential review. A principled approach that puts the reasons first best respects administrative decision-
makers and reinforces that reasoned decision-making is the lynchpin of institutional legitimacy.
 The amici curiae submit that where reasons are available, they must always be the starting point of
deferential review of a decision’s reasonableness.
 That said, where reasons reveal that the decision was based on improper grounds, the decision should not

39
 be upheld even if it might otherwise fall within the range of reasonable outcomes.
 Although procedural fairness will not always require reasons, the cases in which an absence of reasons
will be acceptable should be few and far between.
 From a practical and analytical perspective, the absence of reasons makes true deference difficult if not
impossible  ADM should provide reasons.

XV. APPLYING THE STANDARD OF REVIEW

Correctness review
- A correct decision is one that is correct / A decision that is incorrect is incorrect by virtue of its not being correct.
o 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)

Pushpanathan v Canada (Minister of Citizenship and Immigration) (SCC) (1998) –

Correctness Application (Interpretation of UN principles and application)
- Issue: Does “acts contrary to the purposes and principles of the United Nations” include a serious narcotics offence?
- Held (Bastarache): Application of Correctness Review
o 1) Principle of Treaty interpretation: determining purpose of Article 1F(C)
 The starting point of the interpretative exercise is, first, to define the purpose of the Convention as a
whole, and, second, the purpose and place of Article 1F(c) within that scheme.
 Convention’s purpose = protection of human rights of refugees
 Compare to other sections of Convention: Article 1F(C) narrows the class of bona fide refugees;
Article 33 applies to those that fall within the scope of refugees, but sent back because imposes
danger to country.
 Purpose of Article 1F(a) and F(c): to exclude those individuals responsible for serious, sustained
or systematic violations of fundamental human rights which amount to persecution in a non-war
setting.
o 2) What acts are contrary to the purposes and principles of UN?
 Guiding principle: intentional consensus that act contrary to purposes & principles.
 In this case, we are concerned with drug trafficking  There is no indication in international law that drug
trafficking on any scale is to be considered contrary to the purposes and principles of the United Nations.

Northrop Grumman Overseas Services Corp v Canada (AG) (2009) (SCC) – Correctness
Application (AIT review)
- Facts:
o Northrop (non-Canadian supplier) applies for a bid to supply product to Canada  Does not win the bid  Brought
a complaint under Agreement on Internal Trade (AIT).
- Held: Correctness applied  CITT incorrectly allowed non-Canadian supplier to bring a complaint under AIT.
o Correctness applied because jurisdiction issue identified (jurisdiction of AIT) and precedent setting.
o Problems with AIT applying to non-Canadian suppliers:
 Party’s goods excluded from NAFTA and WTO agreement.
 Access to CITT not meant to be freely available – valuable bargaining chip for Canada (policy
considerations).
 Non-Canadian supplier of good could bring decision of government subject to judicial review.

Stewart v Workplace Health, Safety and Compensation Committee (2008) (NBCA)-

Correctness Application (import def’n from one statute to another)
- Facts:
o Stewart was placed on stress leave and ceased work Stewart suffered from depression and anxiety due to the ill
effects of her job, and the overload had an effect on her physical and emotional well-being  Issues: Does
“accident” include injury caused by gradual onset of stress? Should the tribunal have imported the definition from
the NB Worker’s Compensation Act to the Federal Government Employees Compensation Act.

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 - Held: Decision was incorrect  Tribunal erred in holding that term “accident” under GECA does not include the gradual
onset of stress as a compensable injury because a claimant can “only expect to be eligible for the same benefits as provided
for under the Act.”
o Applicable standard of review: Statutory right of appeal on jurisdictions and questions of law, this is a question of
law and no privative clause  Correctness.
 Only purpose of s. 4(2) of GECA is to ensure the rates and conditions of compensation payable to injured
federal employees mirror the rates and conditions for other injured workers in New Brunswick once the
threshold of entitlement has been determined.
 S. 4(2) is not engaged until it had been determined that s. 4(1) includes the gradual onset of stress.
 May create a patchwork of different benefit to government employees  But arguably this is only limited
to NB employees.

Reasonableness Review
- Reasonableness =
o Reasonableness is a deferential standard animated by the principle that underlies the development of the two
previous standards of reasonableness: certain questions that come before administrative tribunals do not lend
themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable
conclusions (Dunsmuir)
 Deference in the context of the reasonableness standard therefore implies that courts will give due
consideration to the determinations of decision makers.
o  Range of reasonable conclusions in respect of fact and law (Dunsmuir)
o Tribunals have a “margin of appreciation” within the range of acceptable and rational solutions. (Dunsmuir)
o  Look at reasons together with outcomes (Dunsmuir)
o  Meets the hallmarks of “Justification, transparency, and intelligibility” (Dunsmuir) – Apply separately.
o  Deference as respect (for ADM’s expertise) (Dyzenhaus)
- Paul Daly – badges of unreasonableness
o Illogicality
o Disproportionality
o Inconsistency with statute
o Unexpected changes in policy
o Kislowicz: Failure to consider required factors OR consideration of irrelevant factors.

Communications, Energy and Paperworkers Union of Canada v Irving Pulp & Paper Ltd.
(2013) (SCC) – Application of Reasonableness (Alcohol testing  Reasonable)
- Facts:
o Pulp & Paper mill can be dangerous  Irving unilaterally applied mandatory random testing to unionized
employees  Irving relies on management rights and a dangerous work place.
- Held (Abella - Majority): Board’s decision was reasonable.
o Applicable standard for reviewing the decision of a labour arbitrator is reasonableness.
o Looks to a specific arbitral jurisprudence (not employment/human rights)
 Common thread in jurisprudence: Rules stemming from management clause must be reasonable and
universal random testing consistently found to be unreasonable in absence of specific problem with
respect to substance use in that workplace.
  Therefore, dangerousness does not equate to automatic justification for random testing; only justifies
testing of particular EE in certain circumstances.
o Board concluded evidence of alcohol-related problems insufficient
o Employer’s argument of deterrence fails because this is not balanced against privacy interests of employees.
o  Don’t go on line-by-line treasure hunt for error (this is not what deference looks like)– ask if decision is within
range of reasonable outcomes
 This decision was later criticized for failing to meet Dunsmuir requirement of justification, transparency
and intelligibility.
- Held (Rothstein and Moldaver - Dissent): Board’s decision was unreasonable.
o True Reasonableness review requires the court must make conclusion about decision and facts & law that
underlie it.
o “The board put its thumb on the scales and upset the careful balance established in the arbitral jurisprudence.”
 Arbitral jurisprudence sets bounds of reasonableness  Board departed from arbitral jurisprudence by
41
 raising threshold of evidence without explanation (Arbitrator applies ‘serious problem/casual
relationship’ test than usual ‘some problem’ evidentiary requirement).
 Unreasonable inference on the rate of testing of 10% of EE that this indicated the level of problem (not
the method ER chose to solve the problem).

McLean v British Columbia Securities Commission (2013) (SCC) – Application of

Reasonableness (BC Securities Commission  Reasonable)
- Facts:
o BC Securities Commission interpreted language in its home statute to calculate a limitations periods for initiating
proceedings against a person from the date of the person’s settlement agreement with a securities commission in
another jurisdiction rather than from the date of the person’s underlying misconduct.
- Held (Moldaver): Tribunal’s interpretation was reasonable.
o Statutory language is less than crystal clear (ambiguous) as it is subject to two interpretations  Both
interpretations are reasonable.
 The appellant’s burden here is not only to show that her competing interpretation is reasonable, but
also that the Commission’s interpretation is unreasonable. And that she has not done.

Nfld and Lab. (Treasury Bd) v Nfld and Lab. Nurses’ Union (2011) (SCC) – Application of
Reasonableness (Part time nurse  Reasonable)
- Facts:
o Whether the time worked as a part time employee should be carried over when converted to a permanent
employee  Arbitrator held no, because there is a distinction between casual and permanent employees,
including that casual employees are never on call (different work relationship with the employer)  Collective
agreement expressly excludes casual employees from having vacation benefits.
- Held (Abella): Decision was reasonable.
o Given deferential approach in reasonableness review, inadequacy of reasons not a stand-alone basis for
quashing a decision.
 Reviewing courts should NOT undertake 2 discrete analyses — one for the reasons & one for the result.
 Reasons must be read together with the outcome and serve the purpose of showing whether the result
falls within a range of possible outcomes.
  Reasons allow reviewing court to understand why tribunal made its decision and permit it to
determine whether the conclusion is within range of acceptable outcomes.
o Are reasons about procedure or substance?
 Sometimes, reasons are required by the duty of fairness (Baker)
 Once ANY reasons are provided, courts should enter into substantive review.
o In this case, perfection is not the standard as reasons are specifically and is supposed to be provided in a timely
manner  Reasons, while they are not perfect, show arbitrator turned his mind to the issue and decided within
the range of reasonable alternatives.

Alberta (Information and Privacy Commissioner) v Alberta Teacher’s Association (2011)

(SCC) – Implicit Decision
- Facts:
o Adjudicator appointed by the Alberta Information and Privacy Commissioner under the Personal Information
Protection Act decided that the Association had violated its members’ privacy rights by disclosing personal
information  The Association sought judicial review of the order on the basis that the commissioner failed to
extend the deadline within which an inquiry could be held under PIPA and lost jurisdiction for failing to comply 
Significantly, this issue was not raised before the original adjudicator by any of the parties or addressed in the
reasons for her decision.
- Held (Rothstein):
o In this case, the adjudicator, by completing the inquiry, implicitly decided that extending the 90-day period for
completion of an inquiry after the expiry of that period did not result in the automatic termination of the inquiry.
o If there is a reasonable basis for the implicit decision  Court must not interfere.
 Maybe necessary to remit matter back to ADM  but efficiency issue.
 When there is no duty to give reasons or when only limited reasons are required, it is entirely
appropriate for courts to consider the reasons that could be offered for the decision when conducting a
reasonableness review.
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  Criticism: sharp practice of lawyers and that when decision is implicit, parties are not made aware of
that decision.

Reasonableness: Correctness in Disguise?

- After losing judicial review, it could be argued that the analysis that the court engaged was in fact a correctness review,
not reasonableness review  Can appeal based on this (a possible argument).

XVI. Jurisdiction of tribunals and the constitution

Nova Scotia (Workers' Compensation Board) v Martin (2003) (SCC) – Worker’s Compensation
Appeal Tribunal has jurisdiction over Charter issues
- Facts:
o The Appellants suffered from chronic pain  Chronic pain is difficult for worker’s compensation insurance scheme
because the pain persists longer than the expected healing time for the underlying injury and may be
disproportionate to that injury  Constitutional challenge raised.
- Held (Gonthier): NS Workers’ Compensation Appeal Tribunal had jurisdiction to decline to apply Charter.
o If there is an explicit or implicit jurisdiction over questions of law  Then presumed jurisdiction of ADM to
decide on constitutional validity  This is then rebutted by a clear intention to exclude Charter.
 In this case, the Tribunal has jurisdiction over Qs of law  Presumed jurisdiction.
o Reasons for the above:
 1) S. 52(1) of the Constitution Act: Questions of constitutional validity inheres in every legislative
enactment  ADM = Constitutional rights in most accessible forum
 2) Charter disputes don’t arise in vacuum: ADM’s ability to do factual findings is helpful.
 3) Admin decisions on Charter subject to judicial review on a correctness standard of review.
o How do we apply the new law?
 1) Look for explicit jurisdiction on questions of law.
 2) Look for implicit jurisdiction – look at statute as a whole.
 a. Statutory mandate of ADM and whether deciding questions of law is necessary to fulfilling
this mandate effectively.
 b. Interaction of the tribunal with other elements of admin system
 c. Whether tribunal is adjudicative
 d. Practical considerations (ADM’s capacity to consider questions of law; cannot override clear
implication of statute)
 3) Is presumption rebutted?
 Burden on the party who alleges that ADM lacks jurisdiction.
 Explicit withdrawal of jurisdiction OR clear implication that the jurisdiction is shifted to another
ADM (arise from statute itself, NOT practical/external considerations)
o Application to the Facts:
 1) There is an explicit jurisdiction on questions of law.
 Statutory appeal on questions of law.
 2) Implicit jurisdiction as well (this analysis not necessary if 1) met.
 Statutory mandate clearly implies questions of law.
 Appeal tribunal adjudicative in nature.
 AG can and did intervene.
 Existence of backlog cannot supplant legislative intent to grant the ADM with jurisdiction over
questions of law.
 3) Presumption is not rebutted.
 Provisions do no more than allow Board of Directors to respond to issues of law and general
policy Board can refer complex Charter issues to Appeals Tribunal  No clear implication that
Charter questions are prohibited.

R. v Conway (2012) (SCC) – Ontario Review Board has jurisdiction to grant s. 24(1)
remedies
- Facts:
o Question before the court is whether Ontario Review Board is authorized to provide certain remedies to Mr.
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 Conway under s. 24(1) of the Charter
- Held (Abella): Ontario Review Board has jurisdiction to grant s. 24(1) remedies.
o We do not have one Charter for courts and another for administrative tribunals.
o Test:
 Does institution have jurisdiction to grant Charter remedies generally? (ie. Does ADM has jurisdiction
over questions of law) (= threshold)
 If so, does legislative intent give power to grant remedy sought?
 Answering this question is necessarily an exercise in discerning legislative intent (consider: past
cases, ADM’s mandate, structure and function).
o In this case:
 ORB has jurisdiction on questions of law.
 ORB is tasked with balancing safety and fair, appropriate treatment of NCR offenders  ORB
authorized to give absolute discharge, discharge with conditions, or detention order  ORB cannot give
absolute discharge after finding dangerousness in NCR offender  ORB cannot grant absolute discharge
to Conway.
 ORB is not allowed to prescribe treatment  particular remedy sought (treatment order) is not within
the mandate of ORB.

Doré v Barreau du Québec (2012) (SCC) – Decision of Council was reasonable

(angry lawyer)
- Facts:
o Gilles Dore was a Quebec lawyer He appeared before Justice Boilard in the Superior Court of Quebec
representing clients in criminal proceedings The Justice made several derogatory comments towards him, and
called him impudent  Dore sent an angry letter after the proceedings to Boilard, and also filed complaints to the
judicial council who punished Judge The CJ of the Superior Court forwarded the letter to the disciplinary body in
Quebec, the Syndic du Barreau who suspended Mr. Dore from practice  Dore appealed on freedom of expression
and the Tribunal held there was a minimal restriction on freedom of expression Superior Court and Court of
Appeal held that the restriction was justified in a free and democratic society.
- Held (Abella): Decision of the Council was reasonable.
o Challenges in applying Oakes to admin decisions  General idea of deference in ADM vs. Charter guarantees
fundamental and pervasive (Abstract difficulty) & Who proves pressing/substantial objective of adjudicated
decision, rational connection, minimal impairment? (Practical difficulty).
o Solution: Suffuse admin law with fundamental (Charter) values  Job of ADM is to engage in the exercise of
Balancing of Charter values against legislative objectives that gives ADM the power.
 Reasonableness standard applies to Charter questions  When Charter guarantee/value at stake,
reasonableness means proportionality ( = only proportional decision CAN be reasonable)
o In this case:
 Legislative purpose: prevent incivility in legal profession.
 Charter value: “fundamental importance” of open criticism of public institutions
  Balancing “transcendent civility” in the legal profession against that lawyers cannot be become a
“verbal eunuch”
 The disciplinary committee’s decision to reprimand the lawyer (content of the letter) reflected a
proportionate balancing of its public mandate to ensure that lawyers behave with objectivity, moderation
and dignity with the lawyer’s expressive rights  It is a reasonable decision.

Trinity Western University v Law Society of British Columbia – LSBC’s decision was
reasonable
- Facts:
o TWU attempted to open law school  Covenant of TWU would prohibit sex for anyone not in heterosexual
marriage  LSBC held referendum which resulted in disapproving faculty of law  Constitutional challenge based
on religious rights (s. 2(a)).
- Held (Majority): LSBC’s decision to disapprove law school was reasonable.
o 1) Mini version of Charter analysis  Is freedom of religion engaged?
 Applies infringement test from the Charter law.
o 2) Applies Dore Framework  Proportionality (“robust”)

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  Minimal impairment and salutary/deleterious from Oakes Test (not the full test; but focuses on the
proportionality element).
  Conclude 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.
- Held (McLachlin – Concurring):
o Dore framework is OK – but needs improvement.
 Need more emphasis on infringement (what it means to infringe a right) and that decision makers are
consistent with the scope of Charter right.
 Onus must be on state to justify infringement (whether the decision is proportionate)
 “Deference” language may not be helpful in the Charter context.
- Held (Concurring – Rowe):
o Only charter rights, not values, are within scope of this test.
o In general, SCC has done too little on the scope of Charter rights and SCC has too often pushed things to s 1.
o Burdens of proof concern.
o Charter rights should not be diluted in admin context; it will be if we use a deferential point of view in ADM law.

XVII. Administrative law and indigenous rights

Rio Tinto Alcan Inc v Carrier Sekani Tribunal Council (2010) (SCC) – Commission
had jurisdiction to consider DTCA
- Facts:
o BC Gov allowed building of dam and reservoir that altered Nechako River  First Nations claim that Nechako
Valley as their ancestral homeland  They were not consulted  Claimed that Energy Purchase Agreement
between Gov and consumer of hydroelectricity should be subject to consultation.
- Held (McLachlin): ADM has jurisdiction to consider DTCA.
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
 1) whether consideration of duty to consult and accommodate was within the mandate of ADM 
Question of law  SoR is correctness.
 If ADM has jurisdiction over question of law, then they have jurisdiction over constitutional
questions including DTCA.
 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
 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
 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.
  There must be EXPRESS AUTHORITY to discern legislative intent for ADM to carry out DTCA.
  Any shortfall in meeting the DTCA will fall on the Crown.
o When is consultation required?
 1. Real or constructive knowledge of potential claim  yes
 2. Crown conduct or decision (includes strategic decisions – setting up a policy that might infringe a right
in the future)  yes (Energy Power Agreement is a Crown conduct)
 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 tconduct now)
 Not adverse effect on negotiating position
 Restricted to particular decision – not underlying infringement (topic is EPA, not the dam itself)
 Failure to consult on initial project may be an infringement, but does not trigger a duty to consult in this
particular case as it is about EPA.

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Chippewas of the Thames v Enbridge Pipelines Inc. (2017) (SCC) – NEB’s decision
met DTCA
- Facts:
o Pipeline built in 1970s without consultation  National Energy Board issued notice to Indigenous groups including
Chippewas informing pipeline change project on upcoming hearing process  Chippewas participated in the
hearing  NEB approved the project after hearing.
- Held: NEB’s decision should stand.
o Doesn’t matter if Crown not a party to process  Crown can delegate responsibility and will be held responsible
for any shortfalls.
o Independence issue: NEB both conducts consultation and adjudicates its adequacy
 SCC: ADMs can be statutorily assigned overlapping functions (Ocean Port)
o Cumulative effects? (whole can be greater than the sum of the parts)
 Duty to consult and accommodate is not the vehicle to address historic wrongs  This is for a regular
litigation.
 Cumulative effects as part of context of the decision: sometimes need to consider this.
o DTCA satisfied here  Yes.
 Early notice; Made aware that NEB was the final decision maker; Oral hearings; Funding to participate.
 Adequate opportunity to participate in the decision-making process.
 Sufficiently addressed potential impacts of rights of Indigenous groups and found that risk of negative
consequences was minimal.
 In order to mitigate potential risks, NEB provided appropriate accommodation through imposition of
conditions on Enbridge.
 Formal notice outlining what was at stake was not given, but sufficient notice here because everyone
knew what was at stake.

Clyde River (Hamlet) v Petroleum Geo-Services Inc. (2017) (SCC) – NEB’s decision
did NOT meet DTCA
- Facts:
o NEB mandated by statute to dis/approve exploration project  Inuit of Clyde River had treaty right to harvest
marine animals  NEB granted the authorization to conduct offshore seismic testing for oil and gas in Nunavut,
concluding that company made sufficient efforts to consult with Aboriginal groups and they had an opportunity
participate in NEB’s process Inuit of Clyde River applied for judicial review.
- Held: NEB’s authorization is quashed.
o Duty to Consult and Accommodate can be delegated to ADM  BUT Crown can rely on NEB’s process but is
responsible for shortfalls.
 Crown must make clear to Indigenous groups it is relying on process for duty to consult and
accommodate.
o NEB process can trigger duty to consult and accommodate, because NEB acting on behalf of Crown  NEB also
has broad discretion to impose requirements, require information, hold hearings, require studies, conduct EAs,
fund participants.
o NEB has a power not only to decide whether consultation is owed, but also to carry out the duty to consult.
o Duty to consult and accommodate varies with strength of claim/severity of impact.
o In this case: Deep consultation was required as treaty right at issue  this was not met.
 Asked wrong questions re: impact on the right (focused on environmental effects).
 Not made clear to Inuit that NEB was fulfilling DTCA.
 No oral hearings, no participant funding, inaccessible answers to questions.

XVIII. Remedies in Administrative law

Discretionary Bars to Remedies
- Adequate alternative remedies (internal appeals)
o Knight: in order to be entitled to fairness, the decision must be final.
- Prematurity
o Internal appeals have not been exhausted or full course has not yet taken place.
o Exceptions: special circumstances
 Challenge to legality of ADM
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  Challenge to jurisdiction
 Absence of effective remedy after proceedings
- Delay/acquiescence:
o Wait too long – sometimes limitation period set out in statute
- Mootness:
o No practical effect on parties
- “Clean Hands”:
o Remedy to facilitate illegal conduct or obtain an unfair advantage or flouting the law or making
misrepresentations.
- Balance of convenience (Mining Watch):
o Sometimes court will bar remedy because convenience favours not grating remedy.
- Abuse of Process (collateral attack):
o Someone goes to one court to avoid the ruling of another court  must complete the appeal process in that
court first before going to another court.

Old writs:
- Relevance?
o Some provinces still use this language – depends on the rules of courts.
o Or court can give the remedy in the nature of …
- Certiorari:
o Quashing of decision for unfair/unreasonable decision – next decision usually made in the benefit of the
quashing decision.
- Prohibition
o ADM has no jurisdiction – prohibit the ADM from making that decision/engage in that process.
- Mandamus: ‘we command’ to carry some course of action (implicit is usually certiorari)
o Only for unfairness, jurisdiction
o Must show public duty is mandatory
- Declaration: declares some action to be illegal (no actual order; just declaration)
o Usually effective in guiding government.
 BUT Khadr – court declined to make an order and declared that he should be repatriated back to the
Canada  but no actual order for legislative supremacy  gov did not act in response to the declaration.
- Quo warranto:
o Showing the source of your authority.

Judicial Review available?

- Public/Private  Must be public.
o Stock exchanges? Corporations? Gov as contracting party?
 Stock Exchange: Stock Exchanges’ powers come from a nexus of private contracts but seem to exercise
public functions; corporations’ powers come from statutes but seem private.
 Corporations: generally seen as a private party.
o Central question: “machinery of government”?
 Factors (not-determinative):
 Functions/duties
 Source of power
 Gov control
 If the actor did not exist, the would gov have to “occupy field”?
- Standing – Rarely an issue; but could be / public interest standing ( DTES Vancouver)
- Right court?
- Deadlines(s)
- Adequate alternative remedies
- Court-specific statutes: Ex. deadlines in statutes

Statutory Reform:
- Simplified application procedure.
- Simplified remedies

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 o Set aside, order reconsideration, with/out directions
- Greater clarity as to who may be parties to a hearing.
- Right of appeal.
- Judicial review mechanism to challenge interlocutory orders and to resolve interim issues.

Alberta Rules of Court:

- 3.15(1) An originating application must be filed in the form of an originating application for judicial review if the originating
applicant seeks from the Court any one or more of the following remedies against a person or body whose decision, act or
omission is subject to judicial review:
o (a) an order in the nature of mandamus, prohibition, certiorari, quo warranto or habeas corpus;
o (b) a declaration or injunction.

Odhavji v Woodhouse (2003) (SCC) – Tort of Misfeasance (Private Law)

- Facts:
o Estate of man shot by police sues, arguing that police did not promptly or fully comply with their statutory duty to
cooperate with an ensuing investigation, and that the chief of police did not adequately compel them to cooperate
Decision is on motion to strike.
- Held:
o Confirms that the tort exists and outlines the test.
o Tort of misfeasance in public office, the 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.
- Notes:
o McMaster: one of few successful tort actions Large-footed prisoner requests new shoes, intentional delay
results in knee injury.

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