Procedural Fairness Issues

Step 1: Is there PF owed?

Threshold:
i. Decision maker state actor or with delegated state authority?
ii. Administrative in nature?
iii. Affect individual Rights, Interest, or Privileges?
iv. Any Legitimate Expectation?

Step 2: What is the level of PF owed?

Baker Factors:
i. Nature of Decision
- Law, Fact, Mixed Law and Fact?
ii. Statutory Scheme
iii. Impact on Individual
iv. Legitimate Expectation
v. Discretion to set procedure

Step 3: What specifically was required by the level of PF?

i. Notice
- Was the applicant denied ability to hear case against and make an argument?
ii. Delay
iii. Oral Hearing
iv. Disclosure
v. Access to Information
vi. Official Notice
v. Admissibility of Evidence
- Was the applicant denied ability to hear case against and make an argument?
vi. Cross-examination

Step 4: Are there issues of Bias or Independence?

Substantive Decision Issues

If challenging a decision – argue for correctness

If upholding a decision – argue for reasonableness

Step 1: Was the Standard of Review (SOR) previously set?

Step 2: If No, Does the Presumption of Reasonableness Apply?

- Interpreting own statute?

Step 2.1: If Yes, Can it be Rebutted?

Step 3: If no to 1 and 2, what is the appropriate SOR?

Step 4: What is the assessment of the SOR?

Special Issues to Watch For:

- Challenge to decision to enact subordinate legislation
- Challenge to decision affecting charter rights
- Challenge on basis of stare decisis
PROCEDURE
Right to Judicial Review
 Constitutional right to judicial review of state decision – Crevier
o Based on notion of Rule of Law and Separation of Powers - Dunsmuir
 If statute doesn’t provide for mechanism of appealing admin decision, can have the decision reviewed under
judicial review
 Applies to state actions – Wall
o Doesn’t apply when state makes decisions that are private in nature, such as EE Ks
 Must have gone through stat appeal process first – Abel?
Grounds of Judicial Review
 Legality
 Constitutionality
 Reasonableness
 Procedural Fairness
o Common law doctrine
 Read-in to statutes if not included
o Admin version of Natural Justice principle
 Is like NJ, but looser standard

Prerogative Remedies
i. Certiorari – used to quash or set aside a decision
ii. Prohibition – used to order a tribunal not to proceed in a matter
iii. Mandamus – used to order the performance of a public duty
 Can be granted at the discretion of the court on the basis of public interest considerations
 Applicants do not have to show that the administrative action complained of affected them in a way that
infringed their private law rights – a court can grant relief on the basis that the applicant was an appropriate
person to assert the public interest in ensuring that gov bodes do not act unlawfully
 Superior provincial courts can even issue habeas corpus to federal issues

Right to Procedural Fairness

Duplessis
 Any administrative action must be authorized by law
 Administrative power must be exercised reasonably, in good faith, and within the purpose of the statute
 Administrative power cannot be exercised arbitrarily

Cooper
 Even when the statute lacks explicit rights to PF, the common law will supply the omission.
 Personal property issues typically attract procedural fairness rights
 Although there are no positive words in the statute requiring hearing, principles of CL supply that the party shall
be heard.
 Leg will have to be explicit if omitting procedural rights

Nicholson:
First – look to the statute to determine the rights.
Then – look at the common law to supply the omissions.
Cardinal
 Duty of fairness at common law is implied in every administrative decision that’s not of a legislative nature and
which affects the rights, privileges or interests of an individual

 Courts presume that the legislature intended procedural protection to apply, even if nothing is said – Cooper
  Fairness is a common-law concept, and, subject only to compliance with the Charter, may be limited or even
ousted by ordinary legislation
o However courts will require specific legislative direction before concluding that this has occurred - Kane

Sources of PF Obligation
1. Admin body Legislation
a. If silent as to procedure, common law governs (Cooper)
b. If statute sets out a detailed procedure, it ousts the common law (Singh)
c. If there is policy or indication that PF is required, may signal it is (Baker)
d. Does policy/”soft law” exist which indicates that PF is required?
Weaker than actual legislation, but useful indicator of how much PF needed (Baker).
Note that GUIDELINES can cause independence problems if they’re followed blindly!

2. General Procedural Statute

 In AB – Admin Jurisdictions and Procedures Act applies to Land Compensation Board, Surface Rights Board, AB
Transportation Safety Board, NRCB.

3. Constitutional or Quasi-Constitutional enactments

a. Charter can oblige procedures, e.g., s 7 for removal from Canada (Singh)
b. Bill of Rights, must be federal cannot “deprive person right to fair hearing” outside PFJ (Singh)
c. Quebec Charter, could be other provincial charter that applies above other legislation, if obliges PF

o The Canadian Bill of Rights does not establish due process procedures with regard to the passage of
legislation – Authorson

i. Relevant when CL gives lower/no procedural safeguard, or when statute expressly denies a
particular PF safeguard. Ask:
1. Does s. 7 of the Charter require PF? – e.g. removal from Canada.
a. Must engage life, liberty, security of the person.
2. Does the Canadian Bill of Rights require PF? Must be federal, must “deprive a person of
the right to a fair hearing” outside principals of fundamental justice.
3. Does the QC Charter require PF? Requires every person have a right to full and equal,
public and fair hearing by an independent, impartial tribunal for determination of his
rights/obligations.
b. If not engaged by any of the above, look to COMMON LAW for PF.

4. If none, is possible that common law procedural fairness/natural justice governs.

1. Threshold: Is there a Duty of PF Owed? Knight

Step 1. Is the decision maker State Actor or State Delegated Authority?

 ADM body must be a state actor, and relationship must not be strictly private law (such as contract, EE K or
otherwise) – Irving Shipbuilding; Cardinal; Knight

Public EEs
 Per Knight – PF may apply where the public employee is not protected by contract (e.g. Judges, ministers, etc)
 where office-holder is subject to summary dismissal and duty of PF flows from statutory power – Dunsmuir
 PF required for government offices held “at pleasure” – Knight

K’s with State

 Private contracts whose terms are governed by statute = more PF – Mavi
 Common Law PF can be displaced by contract – Dunsmuir

Step 2. What is the nature of the decision?

 No need to distinguish between judicial/quasi-judicial or admin decisions anymore – Nicholson

 Nature of the decision and not the identity of the ADM that matters – Inuit Tapirisat

i. Administrative vs Legislative Decision – Inuit Tapirisat

 Administrative:
o Specific, directed at an individual

 Legislative
o Subordinate legislation
 Can look at the substance and see if it’s, for example, a bylaw, that is aimed at a specific
individual. In this situation, likely that the duty of fairness applies – Homex

o Policy decisions of GENERAL application – Martineau

 Language includes “discretion”
 Can initiate on action/decision own, without any limits, or requirements for consultation – Inuit
Tapirisat

o Ministerial/cabinet decisions of GENERAL application

 Not subject to the legislative exemption per se, but often be easy to characterize their decisions
as legislative in nature
 Decisions involving particular individuals most likely to give rise to DOF

If and issue falls into the other two boxes, can the issue be re-framed to touch client’s rights, interest, privileges?
 Might also be able to get out of the leg box with the Expectations, but you have to know the case law and play it
right, i.e. mitigate the effect of Assistance Plan and Mavi and argue for Boniface

Examples:
a. Quota/tariffs/etc. are generally legislative (i.e. policy-setting) in nature, even if they affect a relatively small amount of
people (e.g. Canadian Assn of Reg Importers – small pool of importers).
b. A decision targeted at one individual is more judicial/administrative in nature and will attract PF (even if policy on surface)
(Hutfield/Homex).
 c. Decisions to re-organize schools – no (Van der Kloet), decisions to close schools – yes (Bezaire). Argument to be made
about importance to specific community engaging PF rights.

ii. Final Decision vs Preliminary Matters

 No PF for preliminary decisions, PF where decision final – Knight
 PF maybe where prelim decision proximate to harm – Abel
 Where there is a close proximity between the preliminary decision and the potential for harm/ultimate ADM.
 (e.g. recommendation of whether a mental health patient be released
is determinative of final ADM’s decision – Abel).
iii. Emergencies
 MAY be Suspended or Abridged in Emergency – Cardinal

Step 3. Does the decision affect an Individuals Rights, Privileges or Interests?

 Must effect an individual’s rights, privileges or interests – Cardinal
 Examples:
o Loss of freedom (Abel)
o Loss of employment (Knight)
o Loss of real benefit like social welfare (Webb) or license (Monroe)
o Property/economic interests being affected (Homex) (Cooper)
o Loss of constitutional right of duty to consult – always (Athabasca)
o Worker’s compensation (Napoli)
o Prisoner rights/privileges = PF (Cardinal).
o Refusal to grant a benefit = PF if it “casts a slur” on applicant’s reputation/financial stability (Hutfield).

Step 4. Was there a Legitimate Expectation?

 Expands the scope of PF, cannot give rise to PF where PF would not be otherwise owed – Canada Assistance
Plan
 Only applies to DM – if someone who isn’t DM has made representation likely won’t go through

 May arise where: Agraira

o Representations about the procedure to be followed
o Past adherence to certain procedural practices
o Representations on substantive result to be reached

CAN’T: Canada Assistance Plan

 Create substantive rights
 Affect Parliament’s ability to legislative effectively
o Ex. Requiring consent – also substan right
 Get substantive relief, only procedural remedy

TEST for Representation – Mavi

1) A government official makes a representations within scope of authority to an individual about an

administrative process that the government will follow, and
2) The representations said to give rise to the legitimate expectation are clear, unambiguous and unqualified,

the government may be held to its word, provided that the representations are procedural in nature and not in conflict
with decision maker’s statutory authority

 Proof of reliance not required – Mavi

 Sufficiently precise = if had been in context of private law contract, would be capable of enforcement – Mavi
2. Content: Degree of PF Owed - Baker
1. Nature of the Decision
 More like judicial function = More PF
 More “administrative” = less PF
 Look for:
o Adjudication between parties
o Decisions affecting rights and obligations
o Court-like procedures

2. Statutory Scheme
 NO right of appeal = greater PF
 Right of Appeal = Needs some kind of record to appeal from – Cooper
 Minister Acting = Less PF – Baker
o Minister source of exceptions to normal application indicates less PF – Baker
 Statute may specify level of PF owed
o In AB, look to Administrative Procedures Act which applies to:
o Land Compensation Board, Surface Rights Board, ATSB, NRCB
o Act guarantees that when an authority proposed to act in a manger than adversely affects rights, parties
will have an opportunity to provide evidence and make submissions, as well as the right to disclosure of
facts and allegations. Authorities must provide parties with written reasons, including findings of facts.
o Enacted due to the belief that CL unsatisfactory for these areas

3. Impact on Individual
 More severe = more PF
 High importance: Baker
o Immigration status impact on children
o Individual’s mental health

4. Legitimate Expectations
 Apply analysis from above section
 Was there a clear and unambiguous representation that a certain process would be followed?
 If the expectation is for a certain result may increase PF owed

5. ADM’s Discretion to Set Procedure

 ADMs expected to have expertise, and so less PF protection for ADMs than for courts where they’re setting their
procedure (Baker)
 Courts should sometimes be deferential (“give important weight” – SCC in Baker) to agencies’ procedural
choices
3. Specific PF Contents:
Audi Alteram Partem

Pre-Hearing Issues

1. Notice
 Necessary for other rights to be exercised – Right to make full answer and defense

i. Form
 No particular form required – Webb
o e.g. having it sufficiently explained to you in person is enough.
 Okay as long as can:
o Reasonably be expected to come to the attention of interested persons – Hard
o Reasonably be understood by the right people that it affects them – Ontario Hydro

ii. Manner
 Personal service is the norm unless context permits some other way (e.g. advertisement in newspapers)

iii. Time
 Notice must be given long enough before the hearing to give party enough time to decide whether to
participate and to prepare – Zeliony
o Depends on the nature of the interest and issues involved – Zeliony
 Duty to give notice not defeated by fact that notice arrived too late – Torchinsky
 The Applicant shouldn’t be barred from an appeal because he trusted the mail which was a method the statute
assumed would be reliable – Re Rymal
 ADMs may rely on addresses provided by parties – Wilks
 REMEDY: if notice isn’t received early enough, normal remedy is to adjourn so the party can prepare – Zeliony
o The failure to request or accept a reasonable adjournment constitutes, given certain circumstances, an
informed waiver – Zeliony

iv. Contents
 Reasonability test: Whether a reasonable person would have understood the notice, in all the circumstances,
notwithstanding any inadequacy – Ontario Hydro
o If no, notice is inherently defective
 Must:
o Enable party to adequately prepare a response – Ontario Racing Commission; Chester
 Depends on severity and consequences – Ontario Racing Commission; Chester
o Indicate one’s responsibilities concerning hearing
o Indicate possible consequences of a finding against – Ontario Racing Commission
 A seemingly sufficient notice can fail if the consequences of the hearing are not made clear in
the notice - Mayan

2. Delay
 Can form an argument for breach of fundamental justice (e.g. right to a trial within a reasonable time under the
Charter)
Hearing Issues

3. Oral Hearings
 Not always required – Komo Construction
o DM generally has discretion to allow oral hearing, submissions or cross – Nicholson; Baker
o Decisions affecting Charter rights may require oral hearing (Singh)
 Not always determinative
o Claims to oral hearings are highest when credibility is at issue – Khan

4. Disclosure
 A party is entitled to know what evidence and representations have been given, and an adequate opportunity to
respond – Kane
o If new facts are presented, the party must be given the opportunity to address them – Kane
 Complemented, but not replaced, by the Access to Information Act and the Freedom of Information Act

5. Official Notice
 Official notice is the extent to which an ADM can use material not introduced in evidence
 Problem – ADMs are usually experts, and so external information arising from their expertise can get introduced
 What is appropriate official notice depends on:
 General rule: If adjudicative  disclose to parties.

6. Access to Agency Information

 Individuals should have the right to know what the gov’t knows about them – improves quality of agency reports
by exposing carelessness
 Disclosure can be refused if it could cause harm or if it would reduce frankness/detail of the reports
 Where agency info is particularly prejudicial, NJ requires disclosure (Napoli)
o Concerns of loss/accuracy/frankness may be outweighed by benefits of increased scrutiny
 Might need to provide info as long as it’s considered by the ADM, in keeping w/ statutory disclosure
requirements – Mission Institute

7. Admissibility of Evidence
 Tribunals are entitled to act on any material which is logically probative even though it is not evidence in a court
of law – Miller
o Unless bound by statute
 Decisions over the admissibility of evidence must not remove the entitlement of affected persons to have a
reasonable opportunity to make their case – Laroque
 Hearsay evidence is allowed but can’t excessively rely on it – Bond
o Just because something might not be helpful is not a valid reason for excluding it – Timpauer
 ASK: In accepting or prohibiting evidence, has the ADM prohibited the party from making their case or
prevented them from challenging the case against them? – Larcoque

8. Cross-Examination
 No general right to CE, so must satisfy the court that: Djakovic
o CE is the only way to admit necessary evidence; and
o Credibility is central to the issue.
 e.g. required in Djakovic’s case because credibility of witnesses to his injury was a central issue in his claim.
 CE likely necessary when there’s hearsay evidence.
 Can be refused if there’s a “fair opportunity” to correct/contradict contents of the case against the claimant –
Strathcona
Post-Hearing Issues

9. Duty to Give Reasons

 Not always required – Baker
 Look to: Baker
o Statute
o Baker Factors
o Important interests
o Presence of statutory right of appeal – CUPE
 In CUPE, court held that absence of reasons was a “fatal error” if it led to an inability to make
out a case for JDR

 Normally, reasons only required to be provided to person whose interests are directly affected – London Limos

Request for Reasons

 Failure to request reasons does necessarily bar review – London Limos
o If the duty of procedural fairness and natural justice is breached then the failure to request reasons
should not prevent one from receiving a remedy – London Limos
 However, the failure of the person complaining to ask for reasons may indicate that the rationale for the order is
understood without written reasons
o At a minimum, it is a factor for the court to take into account on an application for JR – London Limos

Quality of Reasons
 Quality of reasons should be left to substantive review – NFLD Nurses
o Where there are no reasons in circumstances where they are required, there is nothing to review
 But where there are reasons, there is no such breach of PR, regardless of quality – NFLD Nurses
4. Was the DM Biased? nemo judex in sua causa – “one cannot be one’s own judge.”

Standards of Bias NFLD Telephone

1. Primarily Adjudicative
 Test = No RAOB
 “what would an informed person, viewing the matter realistically and practically – and having thought
the matter through – conclude?” – NEB
 Mere perception of bias enough

2. Popularly Elected
 Investigative stage
o Test = No closed mind
 Can’t have pre-judgment to an extent that any representations to the contrary would be futile
 Must be amenable to persuasion – Old St Boniface
 Although no actual PF during investigation, but might be able to challenge their previous
statements while at the hearing
o Different matter if councillor motivated by relationship with or interest in party rather than in action of
party – because these are different branches of the bias test – Old St Boniface

 Once Hearing Set

o Test = NO RAOB

3. Policy/Legislative
 Closed mind okay, if reason due to strongly held opinion instead of corruption – Richmond
 Reasoning is that politicians must campaign, which requires them to take positions on issues – it’s silly to
make them posture as though they’re “amenable to persuasion.”
 Important aspect of Legislative or Policy decisions is that it doesn’t have to do with the “state’s” effect
on/power over an individual, but rather is carrying out their legislated duties, and the nature of elected
councillors is that they are expected to have strong held beliefs.
 Distinction from Newfoundland Telephone – this is a challenge of an exercise of regulatory-making
power, not a discretionary decision challenge like in NT
 There’s no duty of cabinet to be impartial – Inuit Tapirisat
o If got through threshold, the bias argument based on direct financial interest would likely fail
Types of Bias
Bias of One NOT Bias of ALL
 Even when biased acts occur in an ADM, the ADM as a whole will not be disqualified/biased – EA Manning

Presumption that ADMs act fairly and impartially – EA Manning

1) Antagonism During Hearing

 When antagonism toward one party reaches a level at which they won’t be able to decide in their favor – Old
St Boniface
 Applies to ADMs as well as their staff – Baker
 Examples:
o Unreasonable aggressiveness – Old St Boniface
o Persistence on irrelevant issue – Canadian College
o Stereotyping – Baker

2) Association Between a Party and DM

 Doesn’t necessarily create RAOB
o Must analyze contextually

i. Past professional relationship between ADM and party

 Courts recognize importance of ADM’s expertise – Marques
Okay
 Board member having previously been member of law firm which had previously acted for one the
parties okay – Marques
NOT Okay
 Board member had previously represented one of the parties as legal counsel on a very similar
matter, not okay – Terceira

ii. Fraternization between DM and party – United Enterprises

 RAOB can arise when tribunal treats one party with degree of familiarity not extended to other
 Repetition and cumulative effect of fraternization are key
o Cannot equivocate informality of boards with familiarity
Indicia
 Counsel for one party always at hearings early and talking casually with chair
 Chair refer to counsel by first name and other counsel by last name
 At end of hearing invited counsel to barbeque and counsel said yes.

3) Involvement at Earlier Stage of Decision

A presiding member of a panel hearing an application not free from RAOB when had hand in developing and
approving important underpinnings of the application brought before the panel – NEB
 As a general principal of law, one is not permitted to be both investigator and adjudicator – Brosseau; Comeau
o Unless clearly authorized by statute
 In order to disqualify the adjudicator in such a case, there must be some act that goes beyond the statutory duties
of the investigator/adjudicator
 If a certain degree of overlapping of functions is authorized by statute, then to the extent that it is authorized, it
will not generally be subject to the doctrine of reasonable apprehension of bias

i. Rehearing matters:
 No general rule prohibiting the same board from rehearing a matter it has already decided – but if it appears
they’re not seriously reconsidering the matter, could give rise to RAOB – Vespra
 ii. Reconsideration of decisions:
 Mere reconsideration of a previous decision won’t raise same level of RAOB – Landau

4) Attitudinal Predisposition Towards Outcome

 RAOB if seems that DM has closed mind – Old St Boniface
o Where any representations become futile – Old St Boniface
 One member of panel predispose against applicant insufficient
o Especially where they don’t try to change anyone’s mind or steer the proceedings – Paine

5) Pecuniary Interest
Material interest enough – Convent of the Sacred Heart
 Zoning decision by Municipal Board quashed because member of board co-owner of residence in area that was,
arguably, enhanced or protected by decision

De Minimus standard – Energy Probe

 A reasonable expectation of pecuniary gain as a result of approval of the license not enough to disqualify
 Direct = not too remote or too contingent or too speculative – Matsqui
o No strict distinction but mere possibility not enough

State can implicitly authorize pecuniary bias

 Legislation required at least 7 of 12 board members to be producers in other provinces. Therefore,
apprehension of bias due to economic interests that conflict with those of a particular licensee whose license is
in jeopardy is not disqualifying – Burnbae Farms

6) Statutory Authorization of Bias

 Statute can override CL rules of bias on RAOB
 Legislation must explicitly allow for overlap between investigatory and ADM rules or else courts will apply
CL rules – Brousseau
5. Was the DM sufficiently Independent?
Tribunals Not Required to be Independent – Ocean Port
 While tribunals may sometimes attract Charter requirements of independence, as a general rule they do not
o Unwritten principle of judicial independence does not extend to ADM tribunals

Determining Degree of Required Independence – Ocean Port

 Statute must be construed as a whole to determine degree of independence legislature intended
 If statute silent, then okay to talk about three Valente factors – Ocean Port
 If legislature has laid out agency’s structure, then don’t have any grounds to challenge for Independence
o If the statute is a little bit less clear then you can raise arguments on Regie and Valente
 Even Charter challenges hard to make on clear statute because s.11 doesn’t apply because not actually being
prosecuted, not being detained, and s.7 doesn’t include economic security which is generally what a lot of these
tribunal decisions deal with

Test:
 Would a well-informed person would have a RAOB in a substantial number of cases – Regie
o If the answer is no, then the applicant, to succeed, would have to have establish a reasonable
apprehension of bias in the context of their particular case

 The essential elements of institutional independence may be summed up as judicial control over the
administrative decisions that bear directly and immediately on the exercise of the judicial function – Regie

Valente Factors
i. Security of tenure
 Can they be removed at pleasure?
 Position fixed until an age of retirement? Fixed term? For specific task?
 Long term appointment and voluntary retirement helps independence – Katz
 Fact that certain members of the tribunal may have held office at pleasure of executive does not
destroy independence of entire tribunal – Valente
o Objection would have to be taken to the status of the particular DM – Valente
 Mere expression that you’ll fire a Board not enough to give rise to probability they’ll make decisions a
certain way – Sethi

ii. Financial security

 Can the organization lower salary if ADM making decisions it doesn’t like? –
 Does regime link salaries to outcomes of performance evals? – Barreau
 Even if salary discretionary, able to look at the practical limits on using that discretion – Valente

iii. Administrative control – Valente

 Independence of the tribunal with respect to matters of administration bearing directly on the exercise
of its judicial function
o Control over such matters as assignment of judges, sittings of the court and court lists

Not Enough to Raise RAOB - Valente

 Provincial Court and its judges shown in printed material as associated with Ministry of Attorney
General
 Executive exercised administrative control over certain discretionary benefits or advantages affecting
the judges
o However could be to others who are not judges and if benefits were great enough
 iv. Other Considerations:

Dual Role – Regie

 Functions of prosecutor and adjudicator cannot be exercised together
 NOT Problem – ADM participates as an institution in the processes of investigation, summoning and
adjudication is not in itself problematic
 PROBLEM – Possibility that a particular director could, following the investigation, decide to hold a hearing and
could then participate in the decision-making process would cause an informed person to have a reasonable
apprehension of bias in a substantial number of cases
o But would be fine if clearly authorized by statute – Brosseau

Discussions with ADM outside Panel – Barreau

 Another concern regarding independence is the relationship between individual tribunal members and the
tribunal’s full membership in the context of pending adjudications
 For example – concern over whether panel members should discuss specific matters over which they are
presiding with colleagues outside the panel
o Concern is that in this situation the adjudicators might be seen to be “toeing the line” to please other
tribunal members
o Particularly so for the tribunal chair, who may play a role in assigning cases to members, making life
tolerable within the tribunal, and in influencing reappointment decisions

Potential for Constitutional Independence Requirement Extension

 Extended the constitutional principle of judicial independence to justices of the peace on the basis that they
exercised judicial functions directly related to the enforcement of law and the court system – Ell v Alberta SCC

McKenzie BSCS
 Court extended the ruling in Ell by analogy to residential tenancy adjudicators, whose functions were highly
adjudicative and whose jurisdiction had been taken directly from courts of civil jurisdiction
 Said they should also have an unwritten guarantee of independence
Determining SOR
Step 1: Jurisprudence already determined SOR?
 Same ADM applying the same provision in the same statute in a case post-Dunsmuir – Dunsmuir; East Capilano

Step 2.A: Home Statute or Closely Related Statute?

 Does the issue involves the interpretation by an ADM body of its own statute or statutes closely connected to its
function – Human Rights Commission; East Capilano

Justification for presumption – East Capilano

 Respect for Leg’s choice to give tribunal responsibility for administering statutory provisions, and expertise of
tribunal in so doing

Step 2.B: Presumption of Reasonableness Rebutted?

 Categories of law that rebut presumption of reasonableness – Human Rights Commission 2018
o If falls into one of the categories, no further analysis required – East Capilano

1) Constitutional division of powers

 Division of powers/s. 96 Qs attract correctness

2) Issues of competing jurisdiction between tribunals

3) True questions of vires – EC says “true questions of jurisdiction or vires”

 Exceptionally rare Human Rights Commission 2018

 NOT Scope of authority
 YES – Determining whether have authority to enter into the inquiry
o But if about whether has authority to pass regulation, maybe not
 No clear markers to distinguish

Dass BCCA
 Determining scope of authority over past EEs not jurisdictional

4) Questions of central importance to legal system as a whole and outside expertise of

decision maker

 Questions that are general/set precedent for other ADMs (Southam).

 Applied in:
o Saguenay – principle of religious neutrality of the state.
o Calgary – principle of solicitor-client privilege.

Home statute deference standards even if home statute of other ADM

 Deciding on a piece of legislation that many ADM going to consider, such as CHRA, does not necessitate
correctness if Act and issues are within DM’s expertise – Human Rights Commission 2018

 ADM bodies able to adapt CL and EQ – fact they do is not grounds on its own to challenge reasonableness
Nor-man
NOT of Importance and Outside Expertise
 Decision of whether HRT had power to award legal costs not question of general law that warranted correctness
– Human Rights Commission 2011
 Wide public concern does not equal wide legal concern – Irving Pulp and Paper
o Potential for real-world consequences does not determine standard of review

Alberta
Elgie ABCA – Interpreting legal terms of art
 The case at bar involves applying the principles of statutory interpretation to terms that are not specific to the
workers’ compensation context, and deciding questions of family law, including legal entitlement to spousal
support
 DM had to interpret terms that were legal terms of art outside their experience and not in their statute
o Proved because resorted to Black’s Law Dictionary]

5) Statutory language displaces reasonableness standard

YES
 ADM has simultaneous jurisdiction with the court to hear issue at first instances – Rogers Communication

MAYBE
 If there’s “clear language indicating that it is to be treated as if it were a court” – Human Rights Commission
2018

NO
 Absence of a privative clause
 Potential for conflicting lines of authority
o Conflicting lines of authority do not, on their own, justify judicial review and it has applied a deferential
standard where they have been raised – Human Rights Commission 2018

6) Contextual Inquiry Human Rights Commission 2018

 Occasionally contextual inquiry can rebut presumption of deference
 Should be applied sparingly – in exceptional case where justified, need not be long and detailed
o Is inappropriate to retreat to full standard of review analysis where it can be determined summarily
 Where used in past has been limited to factors that showed clear legislative intent justifying rebuttal of
presumption
Step 3: No Presumption? Do SOR Analysis Dunsmuir; Dr Q

1. Right of Appeal and Privative Clause

Privative Clause – Dr. Q
 Strong
o Broad language
 Decisions final and conclusive
 No appeal
 All forms of JR excluded (non-renewable)
o Strongest will have all – Pasienchnyk
o Rule of Law justifies judicial review even in the face of a private clause – Dunsmuir

 Weak
o Narrow language
 “Final and conclusive” or “Final and binding” or ADM has “sole” or “exclusive” jurisdiction.
o Does not expressly preclude JR
o Might include statutory right of appeal.

Rights of Appeal – Dr. Q

 Simple presence is not determinative
 Correctness Indicators:
o Full statutory right of appeal
o Broad language

 Reasonableness Indicators:
o Question of law arises from home statute or from closely related statutes
o Narrow and restrictive language

Both – Dr. Q
 May be said both to have authorised and to have circumscribed the court’s role, leaving disputing parties and
the court to resolve any tensions arising from the statute

Neither – Dr. Q
 Silence is neutral

2. Expertise
 Relative expertise
o ADM has particular topical expertise or is adept in determination of particular issues
 ADM bodies have expertise to adapt and apply common law and equitable doctrines – Nor-man

Sources – East Capilano

i. Statute requirements
o BUT, expertise not a matter of qualifications or experience of any particular tribunal member
o Expertise inheres in a tribunal itself as an institution

ii. Institutional
o Habitual familiarity with scheme they administer

iii. Home Statute Assumption

 o Can be presumed to hold relative expertise in interpretation of home statute and closely related
statute – Dunsmuir
3. Purpose of statute
 General purpose of the statutory scheme within which the administrative decision is taking place

More Def
 Protection of public, engages policy issues, or involves balancing of multiple sets of interests or considerations
 Broad discretionary powers in broad circumstances
 Deviates substantially from normal role of courts
 “In the circumstances,” “in the opinion of,” “in the public interest”

Less Def
 Resolving disputes or determine rights between parties

4. Nature of Problem Dr. Q

Fact
 Pure fact = reasonableness

Law
 Pure law may = correctness
o Particularly if decision one of general importance or great precedential value – Southam
o Incorrect standard - Housen in Alberta WCB
o Failure to consider a required element of a legal test - Housen in Alberta WCB; Southam
o Failing to consider relevant evidence – Southam
 However, when the issue involves a trial judge’s interpretation of the evidence as a whole, or the application of
the correct legal test to the evidence, there is no extricable error of law
 If these exist, but can’t rebut, will have to disaggregate the part of the question that makes this error

Mixed Law and Fact

 More fact intensive = more reasonableness – Alberta WCB
 More law intensive = more correctness – Alberta WCB
 If the tribunal considered all the mandatory kinds of evidence – Southam

AMICUS CURIAE NOTE:

The Amici recommend that the new approach to SOR analysis should place less emphasis on the
relative expertise of courts vs. ADMs in interpreting outside legislation. Instead, deference should be
the standard because ADMs are put in place for their expertise (and the way it shapes their
worldviews) – thus, their expertise is still important when it comes to the way they interpret matters
outside the general sphere.
Applying SOR
Correctness Dunsmuir
 No deference, de novo analysis of the question and substitute own view

Reasonableness Dunsmuir

1. Is decision Justified, Transparent, and Intelligible?

 Look to the Reasons for this
2. Does the decision fall within a range of the possible outcomes that is acceptable based on the facts and
law?

Adequacy of Reasons
 One analysis for both decision and reasons – NFLD Nurses
 Adequacy of reasons NOT standalone basis for quashing a decision – NFLD Nurses
 NOT adequate where merely reciting submissions and evidence of parties and stating conclusion – Wall
o At a minimum, must answer the question “why?” – Wall 2013

 Sufficient if:
o Allows court to understand why ADM made its decision and permit it to determine whether the
conclusion is within range of acceptable outcomes – NFLD Nurses

 Generally should: Wall 2013

o Set out findings of fact and principal evidence upon which those findings were based
o Reasoning process followed by DM and must reflect consideration of the main relevant factors
o If statutorily obligated to consider something should address in reasons

 Don’t have to: NFLD Nurses

o Include all details court would have preferred to be valid
o Not required to make an explicit finding on each element leading to final conclusion

No Reasons or Inadequate
 Not providing reasons does not necessitate a correctness standard – ATA
 If does not breach PR, court may consider:
o Reasons “which could be offered” in support of the decision, if no or limited reasons required – East
Capilano; ATA
o Reasons found in record of the case and surrounding context – London Limos; NFLD Nurses
 However:
o Complete absence of any reasons makes it impossible for Court to conduct a meaningful review
 Therefore not possible to supplement actual reasons with any other – Wall 2013
 In some cases, court may provide decision maker the opportunity to give its own reasons for the decision – ATA
o Even if there is an implied decision
o However, such a remittance may defeat whole purpose of setting up a tribunal – ATA
o Shouldn’t remit for reasons if basis for decision apparent – ATA

Limit on Looking Beyond Reasons Given – Lukacs

 While a court may supplement reasons given in support of a decision, it cannot ignore or replace the reasons
actually provided
 Additional reasons must supplement and not supplant analysis of ADM
 A court cannot reformulate an ADM’s decision in a way that removes an unreasonable analysis
Special Cases

1. Vires of Subordinate Legislation (Regulations)

 There’s no constitutional limit on what can be delegated or to whom it can be delegated

i. Enacted by Cabinet – Katz

 Even though admin body supposed to get deference because of deference to legislature, if cabinet enacts
regulation will get less deference than if admin body enacts legislation

 Analysis
i. Validity of the regulation can be challenged if its purpose is found to be inconsistent with its parent
statute
ii. is there a condition precedent or step that has to be undertaken, is there a process that has to be
followed? – i.e statute implied procedural fairness
iii. Presumption of validity
iv. the court should not inquire into the policy merits or the effectiveness of the regulation

 Both the challenged regulation and the enabling statute should be interpreted using a “broad and purposive
approach consistent with this Court’s approach to statutory interpretation generally

ii. Enacted by ADM

 If it’s an admin body who enacts it, then the court will give huge amounts of deference under West Fraser Mills

West Fraser Mills

 Majority avoids term vires
 Phrases as:
o “Whether the impugned section of the Regulation represents a reasonable exercise of the Board’s
delegated regulatory authority”
TEST:
 Whether interpretation of the scope of their authority, in light of the statutory objectives, was
o openly, clearly and evidently unreasonable so as to border on the absurd

Cote Dissent:
 Question of whether ADM has authority to adopt a regulation at all is question of Jurisdiction
o Is not a challenge to the merits or the substance of a regulation
o Either the Board acted within its powers, or it did not – there is no “reasonable” range of outcomes
 United Taxi
o Municipalities do not possess any greater institutional competence or expertise than courts in
delineating their jurisdiction
o Such a question will always be reviewed on a standard of correctness
o There is no need to engage in the pragmatic and functional approach in a review for vires
 Is only required where adjudicative or policy-making function being exercised

Brown Dissenting:
 Whether an ADM has power to enact a regulation jurisdiction falls squarely within class of questions described
in Dunsmuir as jurisdictional
o Board’s authority to regulate reviewable, Board’s chosen means of regulation not reviewable
2. ADM Applying Charter
i. Review of tribunal’s decision with respect to its jurisdiction over constitutional challenges to its enabling
legislation and over remedies – Correctness – Dunsmuir; Whatcott

ii. Review of the tribunal’s determination of the constitutional validity of legislation or award of a constitutional
remedy – Correctness – Dunsmuir; Whatcott

iii. Review of an administrative decision that allegedly violates a Charter (or Aboriginal) right – Reasonableness –
Dore; Trinity Western
 If the issue arises from a challenge to the legislation as a whole, then the use of a correctness standard
requires that the Oakes test apply in conducting the s. 1 analysis
 If the issue arises from a challenge to the exercise of administrative discretion, then the reasonableness
standard allows for deference, albeit adjusted to incorporate the question of “proportionality” as set out
in Dore

Charter Challenge to ADM Decision (rather than law)

 Discretionary ADM decisions that engage the Charter are reviewed based on the administrative law framework
set out by this Court in Doré and Loyola – Trinity Western

 Court should apply “a robust proportionality analysis consistent with administrative law principles” instead of “a
literal s. 1 approach”

 Charter values are “those values that underpin each right and give it meaning” and which “help determine the extent of any
given infringement in the particular administrative context and, correlatively, when limitations on that right are
proportionate in light of the applicable statutory objectives” – Trinity Western

Justification
 Reviewing constitutionality of a law different than reviewing administrative decision violating a right – Dore
 Deference justified on basis of DM’s expertise and its proximity to the facts of the case – Dore; Trinity Western
 Deference owed when determining whether decision reflects proportionate balance – Trinity Western

Dore/Loyola Framework Dore; Trinity Western

Step 1: Does the ADM decision engage the Charter by limiting Charter protections?

Step 2: Does the decision reflect a proportionate balancing of the Charter protections at play:
i) Given the nature of the decision; and ii) the statutory and factual contexts?

Proportionality Trinity Western

 Reasonableness and proportionality become synonymous
 Under Doré/Loyola framework, decision is reasonable if it proportionately balances Charter protection with
statutory mandate
 Proportionate = Charter protection affected as little as reasonably possible in light of statutory objectives
 Doesn’t have to be the decision that limits the Charter protection the least
 May be more than one proportionate decision
o As long as the decision “falls within a range of possible, acceptable outcomes”, it will be reasonable
 But also won’t be reasonable if didn’t choose an option that was reasonably open and would reduce impact
while still sufficiently furthering statutory objectives

- essentially court will look to decision and imply proportionality analysis decision maker likely didn’t actually undertake
“Line” DMs - ET 2017 ONCA
 Doré/Loyola framework cannot easily be applied to a line decision made by those not operating in an
adjudicated administrative context
 Where what is at issue is the discretionary decision of a line official, and not “an adjudicated administrative
decision”
o It is one thing to defer to an educator on educational matters, but something else to defer to an
educator on constitutional matters.

3. Stare Decisis
 ADM DM not bound by earlier decisions – Irving Pulp and Paper
o Can change how it interprets a particular provision

TEST Domtar; Ellis

1. Is decision made within jurisdiction?
2. Was decision reasonable?

Conflicting Interpretation of Legislation

 No independent basis for JR for divergent interpretation of legislation – Domtar 1993

o In circumstances of conflicting interpretation, deference not trumped by need for consistency and
predictability

 Can be two reasonable readings of a statutory provision – McLean 2013

o Court defers to any reasonable interpretation, even if other reasonable interpretations exist – McLean
o If court merely upheld earlier tribunal interpretation as reasonable, tribunal doesn’t have to follow that
interpretation if it prefers another interpretation that is also reasonable
o “Judicial deference in such instances is itself a principle of modern statutory interpretation” – McLean
2013

Exception: McLean
o If statute only capable of single reasonable interpretation and ADM DM adopts different interpretation,
then DM’s interpretation unreasonable
 Simply thinly veiled correctness standard

 App’s burden
o To show their competing interpretation is reasonable, and that ADM’s interpretation unreasonable –
McLean 2013

 How to resolve conflicting ADM decisions is a policy choice which the courts should not make – Domtar 1993

Justification – Domtar 1993

 Inconsistency in decision making by ADM inextricably linked to DM autonomy, expertise and effectiveness
 Main issue is who is in the best position to rule on the impugned decision
 Court substituting its own interpretation eliminates ADM’s autonomy and special expertise

In Alberta
 May have to give reasons for not following jurisprudence – Altus ABCA
o Finds support in Irving Pulp and Paper dissent

 May be more reliance on prior jurisprudence to frame what is reasonable - Altus