Procedural Fairness THRESHOLD QUESTION The Bill of Rights: binding ONLY at federal level, rarely used, but DOES

protect property interests (s1(a)) Authorson (rights to disabled veterans benefits) – SCC held that Bill of Rights did not provide absolute rights NOR does it guarantee PF before a legislative action is taken The Charter: s 7 – life, liberty, security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice Statutes: may be general or specific – they supersede CL ex. Administrative Tribunal Act (BC), Administrative Procedures and Jurisdiction Act (AB), Statutory Powers Procedure Act (ON) CL beaten by Statute, Constitution/Charter Statute beaten by

contractual employee – the contract determines the rights and obligations of the parties (now govt employees governed by ordinary employment law (Wells) Legislative/Policy Decisions - can’t be a ministerial decisions or exercising a purely legislative function (Martineau) - legislative decision? – Inuit: a) look to role of Cabinet (political and act on own motion) b) the nature of the power granted – affects large # of ppl, broad powers to intervene - Homex: look to the substance of the decision – if it is effectively aimed at an individual it will be admin in nature – BY-LAW directed at a group of people - Bezaire: school closures = duty of pf – specific group and high impact Government Tendering = government contracts - Shell v Vancouver – court reviewed bc acting outside municipal Interim Decisions: investigatory or advisory functions = no pf (Guay v Lafleur) - interim but in effect final decision may be PF (Re Abel = board recommendation was the final decision, although final decision was minister it depended on board recommendation) - report = Kriever = even though report doesn't decide, because it affects reputation there may be PF Office Holders? – PF applies to office holders when: 1) no k of employment and office is purely statutory (judges, ministers) 2) if the terms of appointment expressly provide for summary dismissal and the appointment is ‘at pleasure’ 3) if terms of appointment confer procedural rights Emergency Decisions: Cardinal - the duty owed might be minimal/less than normal if not an emergency - V.M. v. BC - Jehovah’s Witness parents received minimal notice and ability to challenge medical evidence when the Director seized their sextuplets to

give them blood transfusions. In this case there could be no “interim” decision Legitimate Expectations ** only applies to create procedural rights and NOT substantive (Mount Sinai, in UK – substantive rights (North and East Devon Health Authority) ALSO CANT CONFLICT WITH STATUTE both threshold issue and contents issue – applies when party has: a) been consulted before a decision is made b) a particular procedure will be followed or c) there will be a particular outcome Types of Conduct that give rise to L.E a) express representations (Mount Sinai) b) past practice (must be unambiguous and long standing (CUPE) c) past conduct in dealing with the applicant (Lafontaine) d) divided authority from SCC whether signing of treaties gives rise to L.E - actual conduct that gives rise to L.E not required (Mount Sinai) CONTENT OF PF *remember flexibility of what procedures are required Baker 5 Factors:  APPLY TO FACTS 1. nature of the decision made/process (how close is it to a judicial decision) – is it discretionary? (more discretionary = higher pf) – seriousness of the decision? – greater the impact the more rigorous the procedure 2. nature of the statutory scheme/terms of the statute (right of appeal? how final is the decision? privative clause?) 3. importance of the decision to person affected 4. legitimate expectations 5. choice of procedures made by the agency itself  conclude low, medium, high level of PF Specific Requirements: NOTICE – FORM, CONTENT, TIMING a) Notice – issues are: manner of delivering notice, who is entitled to notice, when they are entitled to notice, and the content of the notice b) Ways of Giving Notice – add in the paper, on a

Nicholson – modern era in PF – police constable dismissed without reasons or a hearing – while he was successful at SCC he did not get back his position (Laskin CJ: duty of pf in admin decisions) Martineau – prison administrators did not have to act judicially – but there is still a duty of pf (Dickson: rejects distinction between fairness and natural justice) HELD: courts should look at all the circumstances before concluding a breach of duty Cardinal – public authority owes a duty of pf when the admin decision affects the rights, privileges and interests of an individual (this was an emergency situation so ok that no hearing, SCC also said that courts should be cautious on imposing procedural req’ments on prison authorities, therefore, courts will show deference to decision-maker) Knight – 3 step test: 1) nature of the decision (admin, final) 2) relationship between decisionmaker and individual, 3) affect on individuals rights (held: he knew why he was dismissed and was afforded pf so termination valid) Dunsmuir – if person is both office holder and

board next to the proposed site, by regular mail, registered mail, personally served subpoena c) Content? – that a decision will be made, should have enough info to determine what decision will be made, if an oral hearing – include the place/time/date, if published – enough info to determine if they are affected Kriever Commission - sent notice to some parties indicating there might be a finding of misconduct - court found notice was adequate: 1) not a criminal trial so consequences less serious, 2) sophisticated parties that knew the issues, 3) public inquiry should have a fact-finding function *if had found to be inadequate would have been inconvenient to witnesses Re Webb - need positive evidence that person claiming a breach of PF did not in fact have or understand the notice

Nature of Issues – is it complex? capacity? impact? DISCLOSURE OF MATERIAL FOR HEARING - parties need to know case to be met (May v Ferndale) - exceptions: national security, security of a person, sensitive info (ex. child protection) OFFICIAL NOTICE = extent and manner to which agency may use material not in evidence – if administrator is relying on something must tell other party so they can counter it REPRESENTATION - right to a counsel whenever there is a right to a hearing, but tribunals may exclude lawyers - factors: a) importance/seriousness/complexity of the matters at issue ( complexity = if requires stat interpretation Re Men’s Clothing), b) impact, c) capacity of individual to represent self (Re Men’s Clothing) - Parrish: refusal to testify without a lawyer – because of reputation, livelihood, etc – court found he should have counsel (Ontario – SPAA s 10) - Govt Funded Counsel? – only when you can raise a s 7 argument for state-funded lawyer ADMISSIBILITY OF EVIDENCE - normal rules of evidence not applicable - BUT findings of inadmissibility/reliance on unreliable evidence may lead to a breach of PF CROSS EXAMINATION - right to cross witnesses who testify orally/put forward evidence in writing - pros: challenge evidence, both factual and expert - cons: requires personal attendance, intimidating - Re County of Strathcona: the opportunity to be heard also means must be able to test other side – if you are going to rely on expert should be able to cross (so less weight will be given on that expert evidence) - Re B and Catholic Children’s Aid: cf. Strathcona – given the seriousness (child sexual abuse) – cross was necessary for PF (seriousness of decision to party affected) REASONS

- it is hard to challenge a decision if you don't know the reasons, requiring written reasons may provide a better decision, and the inherent right of someone to know the basis for a decision - Required: - Baker = reasons MAY be required at CL, depending on the 5 factors ( look at - if there is a statutory right of appeal, if necessary for judicial review) - Reasons must be ADEQUATE Institutional Decision Making Delegation of actual decision making authority is prohibited rule = when legislature gives decision making power to a person/entity it expects the person/entity to make the decision Exception = authority to delegate may be provided by statute 1) delegation requires an express act 2) delegated power must be limited 3) delegator must retain ultimate control over the delegate 4) delegate must act within limits of their delegated power what can’t be delegated = appointment to an office, the ability to make an appointment, judicial/disciplinary power courts can deny there was an inference to allow delegation when the decision is significant to the person/entity affected (Vine v National Dock) MINSTERIAL POWERS (Carltona Doctrine) - no express act is necessary to allow delegation to officials - the nature of minister’s powers = impossible to carry out all tasks - official is NOT a delegate – their actions presumed to be action of Minister - EXCEPTION: Courts can say the power must be exercised by the Minister personally Delegation of Duty to Hear - where panel has decision-making function but makes decision based on evidence heard by only part of the panel

PRE-HEARING DISCLOSURE - not necessary to have Stinchcombe level of disclosure (CIBA-Geigy) DELAY Blencoe: look to factors to determine if delay is excessive: a) nature of the case and its complexity, b) the purpose and nature of the proceedings, c) whether the respondent contributed to or waived the delay Kodellas: found prejudice because not enough time to preserve evidence/locate witnesses – so unfair Positive Action? – is there a legal obligation to act? (ex. issue of license? – then the remedy will be the admin agency take action, not the issuing of a license) ORAL HEARINGS – no presumption of oral hearing from Baker Khan: oral hearing necessary when credibility is an issue - should be open to the public unless there are compelling reasons not to (Charkaoui) – so privacy interests, public safety, commercially sensitive info, high stigma situations

- Jeffs – board doesn't need to hear all evidence BUT must be fully informed to make a decision Problem of Consistency (consistent decisionspredictability  accountability  rule of law) - admin agencies do not have same rules as courts (re. precedents, reasons, appeals, legal training) How is Consistency Achieved? 1) GROUP OR FULL BOARD MEETINGS - Int’l Woodworkers: under state power vest in the panel not board - Tremblay: full meeting had to be called, there was a pressure to comply with views of majority – CANT HAVE IMPROPER INFLUENCE - Ellis-Don: less info about the process than in Tremblay – didn't have testimony of what occurred in meeting – ct wouldn't allow panel members to be questions about what happened in meeting Held: can not breach PF if it is an apprehended breach - Full board meetings will not be improper if: consultation initiated by the panel and not imposed on the board, facts not debated and discussion limited to issues of law and mixed law and fact, decision-maker is free to make up mind 2) LEAD CASES - Geza: can use leading cases, but decision here was overruled bc of bias and improper influence 3) GUIDELINES - written directions outlining how specific types of cases should be decided or how agency officials should carry out their responsibilities - Bell Canada: guidelines can be challenged if they are issued in bad faith or undue influence in the process Tamotharem: guidelines can not be mandatory/eliminate discretion 4) CONSULTATION WITH STAFF/AGENCY

(Committee for Justice and Liberty v National Energy Board) 1. Material Interest (Energy Probe) – must be personal financial interest (indirect financial interest may be enough if substantial and connection is clear) 2. Prior Association with a Party (Marques v Dylex) – personal family/friends, if a former connection – ask: how close was the connection? how much time has passed? 3. Involvement with Investigative or Charging decision (Paine v U of T – found that ok that same views used re. tenure) – it is human nature to validate earlier decision, general rule = is that member whose decision being appealed cannot sit on appeal 4. Pre-Judgment – Baker – Lorenzo based views on the # of children she had, so he pre-judged her without looking at other factors (note: Old St Boniface Residents Assn – prejudgment inherent in role of councillor – councillor has power to persuade) 5. Independence: must be impartial to issues and parties in a case (judicial independence = R v Valente requires ( security of tenure, financial security, institutional independence) 6. Statutory Authorisation of Bias BIAS CASE = Charkauoi 1) bias on part of govt = statute provides for an active, non-deferential role for judges 2) investigator = if judge is acting as an investigator then the principles of fundamental justice are breached, so long as the fundamental role is still adjudicative it is ok (as was the case) 3) as advocate for named person = statute requires judge to carry out review in an impartial fashion Substantive Review ASK: What is the standard of review? How much deference should courts give to decisions of administrative agencies? 3 STEPS 1. legislative standard? 2. Analogous Case? 3. Apply Dunsmuir Standard of Review = 4 Factors from Pushpanthan Dunsmuir Dunsmuir was Clerk of the court of the New

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Brunswick court of Queens Bench. He was employed by the Department of Justice “at pleasure”. His office was hybrid in character – he was both an employee and an office holder. He was disciplined three times and sent a formal letter advising that he risked dismissal if he did not improve his job performance. He was terminated without cause, and given four months pay in lieu of notice decision to dismiss him was void bc of breach of PF D got his job back TEST = Standard of Review Analysis – Correctness and Reasonableness Deference: reasonableness simpliciter standard (under the correctness standard there is no deference) before there were 3 – correctness, reasonableness and patently unreasonable (this one was unclear- was it the search for legal error? or flexibility into whether there was a rational basis for the decision? – it overlapped with the other 2 and was just too confusing to apply) Correctness Standard the Court will not show deference the Court will undertake its own analysis of the question and decide whether it agrees or not with decision maker if the Court disagrees it will substitute its own view and provide the correct answer Reasonableness Simpliciter Standard the Court inquires into the qualities that make a decision reasonable: o justification, transparency, intelligibility o does the decision fall within a range of possible, acceptable outcomes o requires respect for the legislative choices to leave some matters in the hands of administrative decision makers o does not indicate a decrease in the level of deference

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BIAS TEST = not the actual state of mind but whether there is the appearance of bias

What Standard Applies?  4 Factors (Pushpanathan: )for whether or not deference is owed (not all will necessarily apply)

1. presence or absence of a privative clause this protects the decision of the admin agency from review by the courts eg. ‘the decision of the tribunal is final’ Privative CLAUSE = show deference 2. the purpose of the tribunal purpose of the act as a whole – what does the act require? 3. the nature of the question at issue is it a question of fact, mixed fact and law or pure issue of law? 4. the expertise of the tribunal - Pushpanathan: the court assesses the expertise of the tribunal and then considers the court’s own expertise relative to the tribunal, then asks how specific the issue is before the decision-maker in relation to their expertise (ex. labour law, nuclear plants, etc)

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relief, the expertise of the IAD HELD: decision was reasonable not to grant him an exception to the removal order

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Association des Courtiers et Agents v Proprio Direct Inc a decision requiring members to pay fees once a house was sold question was whether rule could me modified under contract - standard was reasonableness – the committee was interpreting its statute – decision upheld Lake judge makes an extradition order, but the Minister makes the final decision to extradite Minister must have special knowledge of foreign affairs - so long as minister applied the correct legal test – assessed on a standard of reasonableness held: decision was within the range of possible reasonable outcomes Northrop Grumman Overseas Services Corp issue about whether Northrop had standing before the Canadian International Trade Tribunal to complain about an unfair bidding process - SCC held: looked to previous case law to determine that the CITT’s decision was reviewable on standard of correctness Minority in Dunsmuir per Binnie J agrees that there should be 2 levels of deference says there should be a correctness standard on one side – and for reasonableness – what is reasonable will vary with the circumstances per Deschamps Charron and Rothstein JJ judicial review of admin decisions should be more like appellate review Under their proposed analysis: Any review starts with the identification of the question at issue as questions of law, questions of fact or questions of mixed fact and law. Questions of fact will always require deference. If the question is one of law: If there is a privative clause, deference is owed to the administrative body that interprets the legal

rules it was created to interpret and apply. If the body oversteps its delegated powers, or if it is asked to interpret laws in respect of which it does not have expertise deference is not owed. If there is a statutory right of appeal, deference is not owed. Finally, when considering a question of mixed fact and law, a reviewing court should show an adjudicator the same deference as an appeal court would show a lower court.

So are there still degrees of deference? single standard Legislative Standards

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Factors Indicating Correctness question of law that are of cental importance to the legal system as a whole constitutional questions regarding division of power questions of jurisdictional lines between competing tribunals true questions of jurisdiction = is it ultra vires? reviewed on standard of

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Dunsmuir  reasonableness

KHOSA (street racer case) case heard by the Immigration Appeal Division of the Immigration and Refugee Board applied 6 factors – turned on the seriousness of the offence and the possibility of rehabilitation K testified before the IAD and they said he didn't show enough remorse - SCC held: found the standard was reasonableness and the decision was reasonable (ASK: within the range of possible reasonable outcomes?) - Applied 4 Factors: there was a privative clause indicating deference, the purpose of the IAD – decisions are reviewable only if the Fed Court grants leave to commence judicial review, the question = IAD had power to grant exception

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look to what the legislative intention was – does it specify that the standard should be correctness/reasonableness look to specific and general statutes what extent will the courts consider the CL when applying statutory standards? v Owen Owen found not criminally responsible because of mental disorder, he was released back into the community review board did not grant him an absolute discharge Criminal Code contains a strong and precise privative clause indicating that the court could only interfere when: o decision is unreasonable or cannot be supported by the evidence o the decision is based on a wrong decision on a question of law o there was a miscarriage of justice Held: the courts should apply the statutory standard and the CL analysis

Federal Court Act and Substantive Review s 18.1 (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;

(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. KHOSA - Binnie J wrote for the majority - acknowledges that the legislature has the power to legislate standards of review, provided its done with clear and explicit language (Owen) language MUST be unambiguous - did the Federal Court Act intend to create new standards of judicial review?  no standard of review specified there is a discretion to grant relief, but this must be done in accordance with the Dunsmuir principles - Fish J – agreed with the application but would not have deported Khosa - Rothstein J – disagreed with legislative standards and would have said legislation had a standard of review BC Administrative Tribunals Act applies to tribunals to the extent their enacting statutes incorporates the relevant provisions of the ATA - preserves the standard of patent unreasonableness s 58 (for privative clause) (1) If the tribunal's enabling Act contains a privative clause, relative to the courts the tribunal must be considered to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction. (2) In a judicial review proceeding relating to expert tribunals under subsection (1) (a) a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable, (b) questions about the application of common law

rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly, and (c) for all matters other than those identified in paragraphs (a) and (b), the standard of review to be applied to the tribunal's decision is correctness. (3) For the purposes of subsection (2) (a), a discretionary decision is patently unreasonable if the discretion (a) is exercised arbitrarily or in bad faith, (b) is exercised for an improper purpose, (c) is based entirely or predominantly on irrelevant factors, or (d) fails to take statutory requirements into account. when no privative clause s 59 (1) In a judicial review proceeding, the standard of review to be applied to a decision of the tribunal is correctness for all questions except those respecting the exercise of discretion, findings of fact and the application of the common law rules of natural justice and procedural fairness. (2) A court must not set aside a finding of fact by the tribunal unless there is no evidence to support it or if, in light of all the evidence, the finding is otherwise unreasonable. (3) A court must not set aside a discretionary decision of the tribunal unless it is patently unreasonable. (4) For the purposes of subsection (3), a discretionary decision is patently unreasonable if the discretion (a) is exercised arbitrarily or in bad faith, (b) is exercised for an improper purpose, (c) is based entirely or predominantly on irrelevant factors, or (d) fails to take statutory requirements into account. (5) Questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly. Manz v Sundhur - legislating standards of review does not interfere with the constitutional powers of the courts to carry out judicial review (per Crevier) - the ATA does not define patent unreasonableness – so look to CL (this case decided after Dunsmuir but before Khosa – when Binnie J officially abolished patently unreasonable test) KHOSA on the ATA patent unreasonableness continues to apply in BC

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the expression patent unreasonableness was clearly intended to refer to CL usage – so look to CL for how to interpret it but how does it change w.r.t CL?

Victoria Times Colonist - decided after Khosa does not set out an alternative test patent unreasonableness interpreted mean a high level of deference

to

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What is Patent Unreasonableness at CL? Pre-Dunsmuir = the defect should be apparent on the face of the judgement and the reviewing court is not to reweigh considerations or measure the decisions against its own view of what the correct decision is – THEREFORE: the court should only look at whether there is a rational basis for the tribunal’s decision (comes from CUPE) = high level of deference Statutory Appeals what is the standard of review when the court is acting pursuant to a statutory power of appeal rather than judicial review? where there is no standard provided by statute – a right of appeal is a factor indicating less or no deference cannot exclude judicial review

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Pezim legislature completely -

Segmentation and Standards of Review segmentation = where a single decision is challenged on multiple grounds commonly arises in: jurisdictional issues, constitutional questions (both reviewed on standard of correctness)

Levis (City) police officer pleaded guilty to several criminal offences after a disciplinary investigation his employment terminated there were 2 applicable statutes – Police Act and

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Cities and Towns Act arbitrator found that Police Act displaced Cities and Towns act what standard of review? SCC majority = only use multiple standards of review where there are clear distinctions between the questions and we should not use segmentation to increase court’ security held 2 separate questions = relationship between the 2 statutes (reviewable on correctness) and the interpretation and application of the Police Act (mixed law and fact – reviewable on reasonableness) Abella J = said should have applied same standard of review of administrative decision making - segmentation should only occur where the issue is ‘genuinely external’ and can be easily differentiated from other issues in the case

where a single standard should be applied Ask: is Segmentation appropriate? and how would the results be different? (1. segmentation approach, 2. uniform approach) Discretion may be express or implied – look to the range of options that a decision maker can chose from also look to underlying principles of the statute/purposes types of discretion: a. cases where no rule is set (ability to cancel a liquor licence at discretion (Roncarelli) b. cases where broad rules must be applied to a wide variety of situations (ie. deciding if a prosecution is in the public interest) c. cases where large # of factors must be balanced to reach a decision (ie. municipal councillors deciding whether to allow rezoning of a property) d. cases where unforeseen/unusual circumstances can emerge (ie. special levy to get youths transported in custody home after their release) e. exceptions from rules where a strict application of the rule could have undesirable results (ie. Khosa/Baker)

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can also take into account international treaties/international human rights norms (Baker) BUT SCC said in Suresh that unratified treaties should not be considered

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Standard?  in Dunsmuir it was determined that a standard of reasonableness will usually apply ASK: does the decision fall within a range of possible outcomes? Discretion under the ATA – look to s 58 and s 59 Re Sheehan compensation for fight with other inmates Board had discretion to determine compensation and denied any compensation C of A – it was up to the Board to determine what is relevant and because it had a broad discretion to see what/if compensation should be provided Shell Canada Products Ltd city council of van passed resolutions against doing business with Shell bc of apartheid found that the municipality only empowered to act for municipal purposes Baker more discretion = more the courts should show deference Suresh (national security threat) Minister could not exercise discretion in a manner that violated the Charter CUPE Minister to choose an arbitrator from a list of arbitrators that were acceptable to the parties (for labour disputes in hospitals and nursing homes) Minister appointed several retired judges who were not on the approved list - appointing persons without expertise and credibility as arbitrators was a failure to take into account relevant considerations Fettering a. a decision-maker that has been given discretion cannot ‘fetter’ that discretion (ie. it cannot limit or remove its OWN discretion)  discretion

Council of Canadians with Disabilities v Via Rail - Abella wrote the majority (day after Levis handed down) Canadian Transportation Agency did not have authority to consider the Council’s complaint and the Agency had wrongly determined that there was an undue obstacle in the rail cars - this was before Dunsmuir and so found that patent unreasonableness should be single standard said segmentation not appropriate – should not separate jurisdictional and preliminary questions - Deschamps and Rothstein JJ (dissent) – segmentation was appropriate and the standard of correctness should apply to both questions (they were questions of law, no privative clause, and a right of appeal, the agency did not have greater expertise than the court) Dunsmuir on Segmentation majority did not expressly address the issue - Binnie J recognised the practice of segmentation and the need to distinguish between constitutional issues and application of law to facts on extradition (Lake) – but did NOT suggest what test for segmentation would be appropriate - Post – Dunsmuir law – Via Rail and Levis would both be applicable – difficult to draw the line between appropriate segmentation and cases

Improper Uses of Discretion - forms of abuse: 1) bad faith, 2) improper considerations or 3) improper purposes - failure to take into account irrelevant considerations/failing to take into account relevant considerations (Roncarelli: described as bad faith bc of the use of discretionary power to punish R or the improper consideration (being R’s support of Jehovah’s witnesses) What is Proper/Improper Consideration? must make decision in accordance with the Charter

can only be limited by the legislature that conferred that power b. this is an issue of PF – if the tribunal has fettered its discretion a court will intervene and there is NO room for deference c. when is a ‘guideline’ an improper fetter of discretion (Thamotharem) o look to language of guidelines – are they mandatory or suggestive? o does it allow for exceptions? o is the guideline applied as a mandatory directive? Constitution 1. Legislation may be valid, but the particular decision may be unconstitutional 2. Legislation may be Unconstitutional - if there rights have been reached it will depend on a charter analysis under s 1 and Oakes Test Slaight - challenge to freedom of expressions s 2(b) - no decision-maker can have a discretionary power that allows him to make decisions contrary to the Charter Eldridge - challenge that failure to fund sign language interpreters was contrary to s 15 -legislation itself did not breach the Charter – but the decision was a breach Multani = decision by agency  Charter breach  Court decides whether it is a breach school’s refusal to allow M to carry a kirpan SCC majority: was against freedom of religion – the central issue was not the administrative decision (of school board) but a Charter issue Board had jurisdiction in admin law to prohibit weapons, but the issue was whether this violated M’s Charter rights - found was a breach and analysed by s 1 and Oakes Note: - where Charter values are a factor (Chamberlain)  the Charter values should be examined in

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administrative process DO NOT apply Multani

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Poulin visually impaired inmate who was denied a personal scanner breach of PF (lack of disclosure) and Charter (equality) - Court: said not necessary to perform a standard of review analysis – just look at Charter arguments under s 1 and Oakes (note: if there was a separate issue it could have been analysed under standard of review) Whatcott - application of Multani – freedom of expression (anti-aborition activist) court found that as decision violated the Charter (s 2b and could not be saved by s 1) – there was no need to question administrative law principles Lake extradition of a person to US for drug trafficking - the correct legal test required a standard of reasonableness – the decision found to be within possible reasonable outcomes - did not consider Multani – said that extradition can violate Charter rights but extradition saved by s 1 – it did not apply to this case, but rather applied administrative law principles Martin/Conway = person alleges Charter breach  goes to agency  goes to Court (standard of correctness) suffered work-related injuries and were disabled with chronic pain Board said chronic pain excluded from workers comp - workers appealed to Workers Comp Appeals Tribunal saying that it infringed their rights under 15(1) of Charter (equality) Appeals Tribunal said it did have jurisdiction to apply the Charter and said it did violate s 15 and could not be saved by s 1 SCC – said yes did violate s 15 and couldn't be saved by 1 and yes the Tribunal had the authority to rule on the constitutional validity of the

legislation (this was in the specific legislation) the law will be of no force or effect (s 52) (Martin: can NOT strike down legislation, only invalid w.r.t case before the tribunal) the Tribunal has a DUTY to decide constitutional questions

Which Tribunals Can Rule on the Validity of Legislation? can be explicit or implied explicit = terms of the statutory grant of authority - implied = look at the statute as a whole  relevant factors: o the statutory mandate o the interaction of the tribunal with other elements of the admin system o is the tribunal adjudicative in nature o practical considerations = what is the tribunals capacity to consider questions of law? - all you need to find is general jurisdiction to decide questions of law that are relevant to the provisions being challenged and this is presumed to include the constitutionality of those provisions – UNLESS: o presumption can be rebutted: statute has expressly said that there is no authority to consider the Charter What if the Tribunal does NOT have jurisdiction? can refer a question to the courts or allow an application by a party to delay decision pending resolution of the Charter issue this power is limited in BC by the ATA Paul v BC (Forest Appeals Commission) question = did the F.A.C have jurisdiction to decide whether Paul had an aboriginal right to cut timber? SCC held – found that the Code itself was constitutional Commission could decide issues of law – which included aboriginal rights the decision was therefore reviewable on the

correctness standard s 24 of the Charter  can only be provided by a court of ‘competent jurisdiction’ - 24(1) = to grant such relief as appropriate and just in the circumstance (declaration of rights, court orders/injunctions, damages) 24(2) = evidence obtained in a manner that violates the Charter can be excluded Can a Tribunal be a Court of competent jurisdiction? Mills: 3 step test: the parties, the subject matter of the claim and the remedy sought Weber – held that if the tribunal has a power to make an order, it can make that order as a remedy for a Charter breach Conway (leading case on application of Charter remedies) found NCRMD – detained in a mental health facility alleged numerous Charter breaches relating to circumstances of his incarceration (near a construction site, failure to properly counsel him) sought remedy under 24(1): an absolute discharge or orders including the facility provide him with alternative treatment Board hearing: found that he was an unsuitable candidate for an absolute discharge AND – said it did not have jurisdiction to make a determination on Charter arguments SCC o held that the Board did have jurisdiction to consider charter arguments o Mills test  most important = did the legislation intend to grant the tribunal the power to award s 24 remedies? analysis the same under 24 as under 52 = question is whether the tribunal has the jurisdiction to grant the particular remedy sought which is an exercise in statutory interpretation/legislative intent FACTORS in Conway

- found that the Board had the power to decide questions of law – and therefore was a court of competent jurisdiction: (quasi-judicial body, authorised to decide questions of law, right of appeal, no express removal of power to make constitutional decision) s 24(2) – Mooring - challenged admissibility of evidence before the Parole Board - SCC held: not a competent jurisdiction for the purposes of excluding evidence – it was inquisitorial rather than quasi-judicial, the laws of evidence do not apply** and the legislation did not give the power to exclude evidence therefore – cant exclude evidence but can see how the admissibility would affect PF and s 7 Remedies bringing an application for judicial review = it depends on the jurisdiction – governed by statute or the applicable rules of court ex. under Federal Court Act – an app for judicial review may be made by the A-G or any person directly affected (s 18.1(3) sets out available orders)

interlocutory injunctions, even where the court does not otherwise have jurisdiction over the matter Standing who can bring an app for judicial review of an administrative action? o interested persons (includes original parties before the tribunal and persons directly affected by the decision= private rights are interfered with, who suffer special damage or exceptional prejudice – must be a sufficient nexus between the injury and the action being challenged) o parties acting in the public interest o the A-G (on behalf of public interest) o the agency whose decision is in issue Finlay recipient of social services benefits under Canada Assistance Plan – Manitoba did not have to comply with same requirements as other provinces which would have increased the benefits payable to F SCC: F had a personal interest in the legislation – but the nexus was too remote for standing on ground of personal interest - w.r.t public interest argument – the criteria are: a) justiciability (the issue is a proper matter to be determined by the courts – as opposed to policy issues best handled by exec/legislature b) serious issue raised c) individual has genuine interest in the issue (not a mere busy body) d) no other reasonable or effective manner in which the issue may be brought before the court -  F qualified for standing under the above Amnesty v Canada (Canadian Forces) did Amnesty International have public interest standing w.r.t mistreatment and torture of prisoners found that satisfied above test – but ultimately unsuccessful bc the Court held the Charter does not apply to detainees Standing of A-G

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Stay of Proceedings - commencing a judicial review app does not mean that the order in question is stayed – but the court has discretion to stay the proceedings  3 requirements: 1) prima facie case or a serious question to be tried 2) irreparable harm (harm that cannot be or difficult to be compensated in damages) 3) balance of convenience (which side will suffer greater harm is stay is allowed/refused) – where the action of a public authority is in issue the public interest will be considered (Manitoba v Metropolitan Stores) - same test is for interlocutory injunction Brotherhood v Canadian Pacific Ltd a court has discretionary power to order

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can seek review as a matter of public interest

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used to inquire into the authority to justify public action -

Agency generally the agency cannot defend its decision (be a party to the challenge on judicial review) exceptions: where the scope of the tribunal’s jurisdiction is at issue, where the tribunal’s involvement is necessary to provide background information Children’s Lawyer for Ontario v Goodis Jane Doe – requested filed but the Children’s Lawyer held some back claiming privilege Doe appealed this decision to Goodis, the Privacy Commissioner. The Commissioner ordered disclosure of almost all the pages. The Children’s Lawyer applied for judicial review of the Commissioner’s decision. The Commissioner filed a factum in the judicial review proceeding attempting to justify the decision on additional grounds from those set out in the Commissioner’s original decision. found that it will be necessary to consider: whether the tribunals submissions are necessary for the matter to be fully argued the tribunal should maintain the appearance of neutrality nature of the question – is there an allegation that the institutional decision making process is unfair? Remedies Prerogative Writs 1) certiorari = quash the decision = common remedy for PF - matter is often remitted for reconsideration – this may be done with directions (Baker: the direction that a different officer consider the matter) 2) prohibition an order preventing the admin agency from taking action or making a decisio 3) mandamus compelling the agency to perform an action 4) habeas corpus when a person is incarcerated – the court can require that the state bring the person before them and justify the incarceration 5) quo warranto

Legislation legislation can have simplified remedies and procedures for seeking them – but mostly based on the writs – ex. federal court can issue writs (federal court act s 18(1) and make a variety of orders) Declarations the court makes a pronouncement on matters of law defining the rights and obligations of the parties this is often put with an other remedy Monetary - damages can be awarded under s 24(1)*** - test for when damages should be awarded – Vancouver (City) v Ward a. charter breach b. damages are just and appropriate – serve functional purpose of compensation c. no reasons why damages should not be awarded (ie. no alternative remedies) d. quantum of loss is established by evidence for admin decisions = damages can be awarded if there is a legal duty to make payment (compelled by mandamus) or if the dismissal is quashed – the office holder may be declared entitled to pay Choice of Remedy and Discretion - even if a party is successful there may be no remedy (Homex) - when breach of PF  decision will be quashed Discretion of the Court to Refuse Relief – will decline relief when: the applicant has NOT exhausted other routes of appeal delayed bringing the application committed misconduct waived rights the application is o a collateral attack on an order o is premature Alternative Routes of Appeal (Okwuobi v Lester B Pearson School Board) a court may refuse to hear an app if the applicant

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has not used all available routes within the admin system so if there is a statutory right of appeal that the applicant has not used or if judicial review made concurrent with an appeal judicial review is the ‘remedy of last resort’ (Canada v Addison) if the alternative remedy will not be ‘timely and effective’ =- the can have judicial review at same time (Gates)

Prematurity - can not bring app for review until the final decision has been made (Air Canada v Lorenz) Rule against Collateral Attack - decision should not be challenged in separate proceedings if it could be challenged directly (Wilson v the Queen) Mootness - if the dispute has no practical significance for the applicant (Borowski) - ex. May = 3 of 4 applicants were no longer in medium security by the time the matter reached the SCC - ex. Goodis – Jane Doe stopped participating in proceedings by the time the matter reached the C of A - V.M v BC – the blood transfusions had already been given to sextuplets and the children had returned to their parents custody Delay if the limitation period is over – this may be a bar to start proceedings even if no limitation period – if too much delay the court may decline to grant relief Misconduct - Homex – Homex seeking to avoid the consequences of an agreement with previous land owner – H avoiding municipal regulations so court declined to quash the bylaw Waiver failure to object (ie to bias) – this may be

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acquiescence parties should not wait to see if the decision is in their favour agency should be given the opportunity to rectify any problems