Chapter 1

What is a Law?
• Law: Rules made by a body of elected representatives or their delegates, or by a court,
using procedures that are also prescribed by law
• Laws impose duties and punishments, but also create rights
• Laws create rights and a framework to ensure that the activities of contemporary society
are carried out honestly and effectively

Why Do We Need Laws?

• Blueprint or “rules of the road” for conducting business, protecting consumers, regulating
use & development of land, conferring government benefits, protecting human dignity,
preventing discrimination, distributing & redistributing wealth
• (e.g., imagine driving a car in a crowded city with no rules governing vehicle safety,
driver training, or when to turn, how fast to go, and when to stop)

How do Laws Differ From Other Rules?

• In democratic society, certain behaviour is restricted by:
• formal laws (imposed by government & courts) or
• other rules (social norms) followed by most people but less strictly enforced
• Compliance with rules is more a matter of choice
• Compliance with laws is required
• Governments & courts can restrain activities of ordinary people only by passing,
enforcing, or applying a law
• Governments & courts must follow laws setting out procedures for applying and
enforcing laws
• Rule of law: Limits on the right of governments, tribunals, and courts to control conduct
of citizens
• According to rule of law, all law-making governed by supreme law called the
Constitution
• It establishes the basic institutions of government
• It reflects some of the fundamental values of society
• It determines the values or goals that all other laws must reflect

The Canadian Constitution and its Limits on Law-Making

• Constitution of Canada is supreme law of the land; all other laws must conform to it. Two
parts:
• Division of Powers—Allocates law-making powers to federal & provincial governments
based on subject matter
• The Charter (Canadian Charter of Rights and Freedoms)—Lists fundamental rights
& freedoms for all persons in Canada

Who Makes the Laws?

• The Three Branches of Government
• Legislative (federal/provincial)—makes the laws
• Executive (government departments/police forces)—enforces the laws
• Judicial (the courts)—interprets the laws
• The Three Branches of Government
• Legislative Branch—Main function to legislate (pass laws), pass statutes (or acts), or
(at municipal level) by-laws
• Federal & provincial legislatures can also make regulations, or delegate this authority to
Cabinet
• Law-making powers can also be delegated by law to agencies, boards, commissions,
territories
• The Three Branches of Government
• Executive Branch—Administers & enforces laws passed by legislative branch
• At federal & provincial levels, Cabinet can also make regulations (by “delegated
legislation”) that implement statutes
• Cabinet ministers are responsible for a department (in some provinces, called ministry)
• The Three Branches of Government
• Judicial Branch—Courts & judges who settle disputes between citizens (individuals
or organizations)
• Duties include interpreting laws and striking down laws that are passed without proper
authority
• Federal—Laws apply throughout whole country; passed by federal Parliament (House
of Commons and Senate)
• Provincial (or Territorial)—Laws apply throughout a province; passed by provincial
legislature or legislative assembly (or in Quebec, by National Assembly)
• Municipal—By-laws that apply only within boundaries of municipality; passed by
municipal council (elected councilors or “aldermen”)
• Territorial ordinances passed by elected councils of the territories

Types of Law
• Common Law and Statute Law
• Canada has laws developed by courts and laws passed by governments
• Laws made by courts known as common law
• Body of law (legislation) made by elected representatives known as statute law
• Harmful activity (a tort, or wrong) can be subject of both common law and statue law
•
• Common Law
• Courts must follow precedent (stare decisis)
• Statute Law
• When common law included in statutes with little/no change, this is known as
codification
• Statute law consists of statutes, regulations, and by-laws

• Public Law and Private Law

• Public law—Deals with structure/operation of the government; governs relationship
between individuals and government
• Administrative law—Branch of public law regulating executive branch;
responds to growing number of agencies or administrative agencies
• Private Law—Regulates how individuals or corporations are required to treat each
other
• Includes torts, contract law, property law, family law
• Public and private law can be statutory or common; a single law can have both
public & private components

• Statutes and Subordinate Legislation

• Subordinate legislation or delegated legislation—Made by body other than legislature
or municipal council; authorized by statute
• Substantive Law deals with substance of a problem or legal issue
• Procedural Law sets out procedures for implementing substantive law
 How Various Types of Law are Enforced
• Enforcement by Police—Investigate & enforce most criminal laws, some provincial
laws, and some regulatory laws
• Enforcement by Government Departments and Government Agencies—Investigate
& enforce many federal & provincial regulatory laws
• Independent agencies enforce some breaches, such as securities laws and child welfare
laws
• Enforcement by the Person Affected—Common law or statutory rights may have to be
pursued privately by the person entitled to redress

Chapter 2

Traditional Role & Structure of Executive Branch

• Traditional structure under executive branch of federal & provincial governments:

• “Responsible government”—Accountability of the minister to the public
• Insulation of civil service from political influence—Independent system for
remuneration, promotion, and hiring/dismissal of civil servants

The Development of Administrative Agencies

• Over time, traditional system became more complex
• First administrative agency in Canada was Board of Railway Commissioners (1851)
• WWI, Great Depression, WWII all stimulated federal & provincial governments
toward regulating economy & influencing social/cultural issues

Why Gov Creates Administrative Agencies

• To demonstrate independence
• To reduce size, workload, or budget of a department
• To reduce conflicts of interest
• To provide flexibility in human resources, reduce labour costs
• To provide expertise and specialization
• To ensure representativeness
• To avoid permanence
• To signal a new or different approach
• To achieve coordination or uniformity

Categorizing Agencies, Boards and Commissions (ABC’s):

• Categories:
• Adjudicative agencies (“tribunals”)
• Regulatory agencies
• Advisory agencies
• Operational enterprises
• Operational services agencies
• Crown foundations
• Trust agencies
• Non-scheduled agencies
• “Watchdog” bodies
• Commissions and inquiries
• Some agencies carry out more than one function (i.e., combining advisory,
regulatory, investigative, policy-making, adjudicative, other)

Multipurpose Agencies:
• Many admin agencies are multi-purpose bodies (i.e., several functions)
• Each function may require different procedures to ensure fairness
• Key requirement: Separation of functions to avoid unfairness (e.g., ensuring
investigators, prosecutors, adjudicators kept separate to prevent undue influence)
• Further requirement: No delegation of authority (adjudicators may not delegate decision-
making authority, per doctrine of “subdelegation”)
• Agencies with multiple & potentially conflicting functions avoid this by creating internal
structures and barriers (e.g., Saskatchewan Human Rights Commission)

Administrative Tribunals in the ABC Scheme

• Administrative tribunals (or “tribunals”): Agencies created to settle disputes over
statute-based rights, entitlements, duties
• Different decision-making processes for different kinds of decisions are guided by
efficiency, effectiveness, fairness

• Quasi-judicial tribunals often established to resolve disputes

• Source and Scope of Agency Powers & Duties

• Tribunals and other ABCs are governed by enabling legislation (a statute setting out
powers of agency)
• Powers and duties may be supplemented by common law requirements of fairness
• Powers/duties may include holding hearings, etc.

• Governments delegate decisions to tribunals:

• To review a government decision-maker’s decision
• To resolve disputes between individuals, companies
• To make decisions that have serious consequences to people, society

• Government may create specialized tribunal to:

• Show impartiality in decision-making process
• Ensure fairness of procedure and outcome
• Show community that the issue is important
• Distance government from controversy
• Allow the public to participate
• Involve experts in the decision
• Handle cases more efficiently

• Advantages of tribunals over courts:

• Community membership
• Specialized tribunals have subject expertise
 • Can include those affected by tribunal mandates, those with relevant
backgrounds
• Structural advantage (greater accessibility)
• Tribunals often hear cases without delay
• Tribunals are often more informal than courts

• Similarities Between Tribunals and Courts

• Both expected to render impartial decisions
• Both expected to avoid potentially partial decisions
• Both required to interpret law without substituting their own views
• Both expected to decide cases on evidence
 • Adjudication:
• Considering evidence & arguments of disputing sides; applying relevant law to make a
binding decision

• Alternative Dispute Resolution: Methods of resolving disputes other than adjudication

that help parties come to an agreement

• Three approaches to the conduct of hearings:

• Adversarial (parties decide what evidence to bring before the tribunal; the tribunal
cannot seek additional evidence)
• Inquisitorial (tribunal conducts an investigation and collects evidence)
• Active: interventionist approach to adjudication involving varying degrees of activism
depending upon the parties’ ability to participate fairly in the adjudication process, the
need for efficiency, the mandate of the tribunal and a variety of factors that will fluctuate
from one case to the next and between various tribunals

Agency and Tribunal “Clustering” and Modernization

• Recent structural changes respond to agency transparency, accountability, efficiency
• Prescribed tribunals now follow specific transparency & accountability processes,
including periodic reviews
• Jan 1, 2019, Ontario created a new “cluster” named Tribunals Ontario from 19
tribunals formerly under ELTO, SJTO, SLASTO
• P.45

Chapter 3
What is Administrative Law?
• Rules founded on 6 fundamental principles:
• Decision-makers must stay within jurisdiction
• Administrators to use reasonable discretion
• Administrators to follow “procedural fairness”
• Authority cannot be subdelegated
• Delegated legislation conforms to statute
• Courts can rectify violations by “judicial review”

• Why Did Administrative Law Develop?

• Rules were needed to scrutinize and regulate administrative agencies’ activities

• Who is Subject to Administrative Law?

• Any individual/body exercising power granted by statute or regulation (government
entities, universities & hospitals, self-regulating professions established by statute)

• Evolution of Administrative Law

• Fairness as a guiding principle
• Procedural fairness: Any person whose rights, privileges, or interest may be affected is
entitled to notice of decision and reasons for it, and opportunity to respond
• Natural justice: Procedural fairness rules that tribunals must follow
• Any administrative decision that affects “the rights, privileges or interests” of an
individual triggers the duty of fairness
• EVOLUTION OF PROCEDURAL FAIRNESS
• Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police (1979)
• Probationary police officer dismissed without knowing the case against him and with no
ability to respond
• Nicholson had a common law right to be treated fairly. Should have known case against
him and opportunity to respond
• Duty on public authorities to act fairly when making decisions
• Natural justice is still sometimes used to describe the particular kind of procedural
fairness that applies to tribunals. (text p. 59)
• Natural justice requires that a person affected by a decision be given a right to a formal
hearing.

Baker v. Canada case

Ms. Baker an illegal immigrant from Jamaica living and working in Canada for 10 years
• She had children in Canada
• An Order made by Minister of Citizenship and Immigration to have her deported
• She applied to stay in Canada on Humanitarian and Compassionate grounds
• Ministerial discretion administered on Minister’s behalf by employees of CIC
• Ms. Baker’s application turned down without considering impact on her children
• Supreme Court of Canada: although a purely administrative decision, duty of fairness
applies. Baker entitled to a) see the decision and respond, and b) entitled to impartiality
• Case sent back to CIC for re-consideration. Baker was allowed to stay in Canada on
H&C grounds
• In Baker v. Canada, [1999] 2 SCR 817 Justice L’Heureux-Dubé held:
• The values underlying the duty of procedural fairness relate to the
principle that the individual or individuals affected should have the opportunity to
present their case fully and fairly, and have decision affecting their rights,
interests, or privileges made using a fair, impartial and open process, appropriate
to the statutory, institutional and social context of the decisions

Factors to be considered in determining requirements of procedural fairness (non-

exhaustive list):
• nature of the decision being made and the process followed in making it. The closeness
of the administrative process to the judicial process indicates that more procedure is
required.
• nature of the statutory scheme and the terms of the statute pursuant to which the body
operates. Greater procedural protections are required when no appeal is provided, or
when the decision is determinative of the issue.
 
• importance of the decision to the individual(s) affected. The more important the
decision to the lives of those affected and the greater its impact on those people, the more
stringent the procedural requirements will be.
• legitimate expectations (p.56) of the person challenging the decision. This step
considers the administrative decision maker's regular practices – they cannot backtrack
on substantive promises previously made without according significant other procedural
rights.
• Canada (Attorney General) v Mavi
• choices of procedure made by the administrative decision maker itself. When a statute
gives a decision maker considerable deference to set its own procedure, this will indicate
less stringent procedural requirements. This factor is not determinative.
• When a body makes an administrative, non-legislative decision that affects a person’s
interests more than it affects the general public, they are obligated:
• To notify the person of the intended decision and the reasons behind it
and to provide an opportunity to challenge that decision
• To provide an impartial decision-maker
• Procedural fairness does not provide the right to a fair decision, but the right to a
decision reached through a fair process – procedural rule vs substantive rule
• Procedural safeguards may be more rigorous for some agencies (e.g. tribunals) than for
others. The closer the decision-making agency functions like a court the greater the
procedural fairness requirements
• SCC: procedural fairness obligations arise when a department or agency makes an
administrative decision which is not of a legislative nature and which affects the
rights, privileges or interests of an individual.

• Types of decisions that attract duty of procedural fairness (p.67)

• Licensing: approval of some ongoing activity usually professional or commercial
in nature (i.e permission to practice law or medicine). Regulated activities subject
to specific criteria for qualification and to standards or rules of conduct
• Issuing permits: approval of individual projects (i.e building a house) that
require an application to government for permission to proceed
 • Granting or denying a benefit: gov administrators decide whether individuals
qualify for financial allowances i.e social assistance
• Determining eligibility to receive a service: gov officials decide whether
individuals qualify ro receive certain publicly funded services. i.e: some
individuals with disabilities are entitled to a specialized transportation service
provided by the local public transit authority.

Decisions not subject to the requirement to act fairly:

o Generally, government bodies are not required to engage in public consultation before
they make legislative or policy decisions, or decisions that address minor administrative
matters
o Legitimate expectations- the exception to the rule (p.68):
 Where a department or agency raises expectations of a certain result or
that a certain procedure will be followed, either by promises or by a course
of action on which people have come to rely, the department or agency
may not change its practice or procedure where the change will have an
adverse effect without first notifying the persons who will be affected and
giving them an opportunity to comment on the proposed change

Public(or Private) body’s Obligations of Procedural Fairness (p.66 & p.69)):

1. Duty to give notice and an opportunity to be heard:
• If decision is delegated to an official: duty of fairness is simple official needs
to only give notice of the intended decision, explain in writing the rationale for it
and the facts on which it is based, and provide affected persons with an
opportunity to respond. An opportunity for a written response is usually
sufficient, and rarely is a chance to respond orally considered necessary.
• If decision is delegated to a tribunal: more stringent requirements that include
the opportunity to be heard in person, to be represented by an advocate or lawyer,
to summon witnesses to appear and testify and to cross-examine the witnesses of
the government. Also an opportunity for others who may be affected by the
decision, such as business competitors to participate in the proceedings.
• Imperial Oil Ltd v. Quebec (p.70)

2. Obligation of impartiality – decision must be made by an independent and impartial

decision-maker. SCC states that impartiality does not apply to ministers the same way it
does to tribunals.
• Entails two requirements:
1. individual: the decision-maker must approach the decision with an
open mind  only applies to government administrators
2. institutional: the decision maker must be independent
• Tribunals often hear cases in which the gov is one of the parties. To be
able to provide a hearing that is both fair and appears fair, must have
sufficient structural separation and independence form the government to
enable them to make decisions without fear of reprisals as well as without
any appearance of bias.
 -Fairness principle is a procedural rule rather than a substantive rule (does not provide
right to a fair decision, but the right to a decision reached through a fair process).
-Examples of situations of bias, or the perception of bias, may include:
• Pre-judging a matter prejudicial attitude
• previous involvement in a case
• a relationship between the decision-maker and one of the interested parties
Reasonable apprehension of bias – “what would an informed person, viewing the matter
realistically and practically …conclude” p.70
Institutional bias: A tribunal may appear to have a built-in bias where one of the parties that
appears before it is a government department that approves its budget, appoints its members,
provides its staff or exercises control in other ways that may suggest that the department has
influence over the tribunal’s decisions.
o If institutional bias results from administrative arrangements that are not required by law,
the entire tribunal could be disqualified form hearing a case.

Sources of Fairness Obligations:

1. Common law
2.Individual enabling statutes
3.Statutes of general application to agencies or tribunals
4.The Canadian Charter of Rights and Freedoms
5.Section 35 of the Constitution Act, 1982

Procedural Fairness requirements p.72:

1. Statutory rules
2. Rules of procedure, guidelines and practice directions developed by the agency
3. Supplementary requirements that courts have rent into the agency’s enabling
statute in their decisions in order to ensure fairness

Enabling Statutes for individual tribunals p.72:

o Administrative tribunals must act within the scope of the powers delegated to them by
their enabling legislation
o Ex: Quebec’s Environment Quality Act EQA

• Statutes of General Application:

Four provinces have passed statutes setting out minimum rules of fair procedure based on
common-law principles:
• Ontario: The Statutory Powers Procedure Act (SPPA)
• Applies to decisions that affect a person’s legal rights, powers,
privileges, immunities, duties or liabilities, including eligibility to
receive a benefit or a license s.1(1)
• B.C.: The Administrative Tribunals Act (ATA)
• Alberta: The Administrative Procedures and Jurisdiction Act (APJA)
• Quebec: The Administrative Justice Act (AJA)

• Jurisdiction:
• Scope of authority/powers given to government body or official by legislation or
common law; sources are statutes & common law
• Jurisdiction is generally limited to the powers granted to an administrative body in the
relevant statutes
• Necessary implication: Unreasonable to draw any other inference from facts. Agencies
have whatever powers are necessarily incidental to their explicit powers
• Two Sources of Jurisdiction (p.57):
1. Implied powers doctrine: Source of substantive jurisdiction
2. Inherent powers doctrine: Agency is master of its own process. Common law
source of jurisdiction; grants agencies necessary unwritten procedural powers

Ontario’s Statutory Powers Procedure Act p.73:

o minimal procedural rules for the conduct of proceedings of tribunals (doesn’t
apply to government officials making decisions)
o default set of rights and procedures in the exercise of a tribunal’s statutory power
of decision in circumstances where the tribunal is legally required to give the
parties to the proceeding an opportunity for a hearing before making a decision.
o applies unless the statute creating the decision-making power of the provincial
body or the SPPA provide otherwise.
o Check p.74 Table 3.1 for Statutes of General Application

Application of Act
• Section 3.(1): Subject to subsection (2), this Act applies to a proceeding by a tribunal in
the exercise of a statutory power of decision conferred by or under an Act of the
Legislature, where the tribunal is required by or under such Act or otherwise by law to
hold or to afford to the parties to the proceeding an opportunity for a hearing before
making a decision.
• Where Act does not apply
• Section 3(2):  This Act does not apply to a proceeding,
• (a) before the Assembly or any committee of the Assembly;
• (b) in or before,
• (i) Court of Appeal; (ii) Superior Court of Justice; (iii) Ontario Court of
Justice, (iv) Family Court; (v) Small Claims Court, or (vi) a justice of the peace;
• (c) to which the Rules of Civil Procedure apply;
• (d) before an arbitrator to which the Arbitrations Act or the Labour Relations Act
applies;
• (e) at a coroner’s inquest;
• (f) of a commission appointed under the Public Inquiries Act;
• (g) of one or more persons required to make an investigation and to make a report,
with or without recommendations, where the report is for the information or advice of the
person to whom it is made and does not in any way legally bind or limit that person in
any decision he or she may have power to make; or
• (h) of a tribunal empowered to make regulations, rules or by-laws in so far as its
power to make regulations, rules or by-laws is concerned.
• Waiver
 • Section 4.(1): Any procedural requirement of this Act, or of another Act or a regulation
that applies to a proceeding, may be waived with the consent of the parties and the
tribunal.

Section 35 of Constitution Act, 1982 p.80

Recognition of existing aboriginal and treaty rights
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are
hereby recognized and affirmed.
Definition of “aboriginal peoples of Canada”
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis
peoples of Canada.
• Government must adequately consult First Nations before approving projects that may
impact aboriginal/treaty rights
• Aboriginal rights are not absolute. May be infringed:
• In furtherance of a compelling and substantial legislative, and
• Preceded by adequate consultation, and
• Accompanied by compensation
• Tsilhqot’in Nation v British Columbia, 2014 SCC 44: Duty to consult applies even when
a claim for aboriginal title has not yet been decided – the honour of the Crown requires
the Crown to consult and accommodate the interests of the potential aboriginal title
holders.
•
Legitimate Expectations Doctrine:
If there is an expectation of a certain result/practice/procedure, changes should not be
made without notifying those who will be affected/giving opportunity to comment
• Doctrine only creates procedural rights to make representations or to be consulted
• Canada (Attorney General) v. Mavi, 2011 SCC 30
• Albaharam v. Canada (Minster of Citizenship and Immigration), 2010 FC 1153

Declining jurisdiction: Failure to carry out statutory function may breach procedural fairness
Discretion (p.60):
Power to choose a course of action from options available under the law
Discretion must be exercised reasonably (avoid viewing options too broadly/narrowly)

There are four limits on decision-maker’s right to choose among options (p.60)
1. Discretion must be exercised within the four boundaries of the statute (within the decision-
maker’s jurisdiction). Fundamental rule is that the choices made must be consistent both with the
purpose of the statute and the wording. Recent, courts state that discretion must be exercised
according to the purpose, wording and must act consistently with the values underlying the grant
of discretion including Charter values.
2. Officials must only consider relevant factors consistent with the purpose and wording of the
statute and relate to issues they are to decide.
3. Similar cases should be treated in a similar way,and diff cases in a diff way.
4. Discretion must be exercised in good faith.
(5). Decision-makers must act consistently with Charter values
Limits on the Authority to Rule out Options: The Rule Against Fettering Discretion
Fettering discretion (p.60): When officials refuse to consider an option that is available under
the law, or refusing to consider any factors that is relevant to the choice of an option, when
making a decision that affects a person’s rights or interests
o Refusing to consider an option available under law or to consider any relevant
factor when making a decision
o A body entrusted to make a decision must not fetter itself from exercising its
discretion in an individual case by blindly adopting a fixed rule or policy
o “Government agencies and administrative bodies must, of necessity, adopt
policies to guide their operations.  And valid guidelines and policies can be
considered in the exercise of a discretion, provided that the decision maker puts
his or her mind to the specific circumstances of the case rather than blindly
following the policy….”
o Halfway River First Nation v. British Columbia (Ministry of Forests),
1999 BCCA 470
o Wade, "Administrative Law", 4th edition, at p. 317:
o An authority can fail to give its mind to a case, and thus fail to exercise its
discretion lawfully, by blindly following a policy laid down in advance.  It is
a fundamental rule for the exercise of discretionary power that discretion must
be brought to bear on every case:  each one must be considered on its own
merits and decided as the public interest requires at the time.
o In Trinity Western University v. The Law Society of British Columbia  2015 BCSC
2326 (“TWU-LSBC“), Chief Justice Hinkson found that the LSBC Benchers
incorrectly fettered their discretion by binding themselves to a ‘fixed blanket
policy set by LSBC members in the form of a non-binding vote (at para 120).
o [97]        Fettering of discretion occurs when, rather than exercising its discretion
to decide the individual matter before it, an administrative body binds itself to
policy or to the views of others: ….Although an administrative decision-maker
may properly be influenced by policy considerations and other factors, he or she
must put his or her mind to the specific circumstances of the case and not focus
blindly on a particular policy to the exclusion of other relevant factors:

Minimizing Uncertainty and Inconsistency without Fettering Discretion

o policies and guidelines – permissible and helpful but cannot be binding on
decision-maker.
o If guidelines are developed for exercise of discretion – they should be made
public
o Consultation (p.62) – except where the statute limits or excludes a board member
the right to consult, adjudicator’s may seek advice from other adjudicators as long
as:
o Adjudicator makes final decision
o Consultation is voluntary
o No pressure put on adjudicator
o No new issues or facts introduced during the consultation
Subdelegation (p.65):
o generally, an official to whom the legislature has delegated decision-making
power may not in turn delegate that power to someone else
o Subdelegation may be permitted in certain circumstances:
o specifically authorized by a statute, or, where there is no statutory authorization, it
may sometimes be implied from the statutory context.
o Doesn’t apply to Minister delegating power to ministry staff if statute says
Minister “may”
o Otherwise, whether it is allowed depends on the nature of the power being
delegated – administrative decisions vs quasi-judicial decisions

• Validity of Delegated Legislation Superior courts have the inherent power to review
alleged violations of fundamental principles of administrative law
• The right to judicial review is constitutional in nature - available even when a statute
prohibits it although courts will consider if there is a privative clause
• What is a privative clause?
A section in a law creating an administrative tribunal stating that all or select decisions of
that tribunal are final and conclusive and not subject to judicial review.

Judicial Review p.81

o If an official or body is alleged to have violated any of the fundamental principles of
administrative law, the superior courts have the power to review the alleged violation and
rectify it as necessary  process known as judicial review
o An inherent power of the superior courts, meaning it exists even where no statute
authorizes it
o Anyone who’s directly or substantially affected by an administrative body’s action and
believes the body acted unfairly or outside its jurisdiction has the right to make an
application to a superior court for judicial review, even where a statute provides no right
of appeal.
o Right to judicial review is an aspect of the rule of law; it ensures that gov decisions are
made according to the law, and not the personal preferences or biases of decision makers.
o Constitutional in nature: cannot be taken away by a provision in a statute that seems to
prohibit review of a body’s decisions.
o Is available even where a statute states that it prohibits courts from reviewing an
administrative body’s decisions.

In Ontario, the Divisional Court hears judicial review applications and can:
1. Declare that an action is contrary to the law
2. Quash a decision already made by an official or agency
3. Order an official or agency to take any action that is required by law
4. Forbid an official or agency from taking or from continuing any action that is prohibited
by law
 5. Require an official or agency to follow a fair procedure in making a decision
6. Order an agency to free a person whose illegally imprisoned

Rule of law has two important consequences:

1. Powers/duties limited to those established by law
2. Any agency with powers/duties under legislation must follow legislated procedures in
exercising those powers/duties
-Acting outside of jurisdiction known as ultra vires

2 types of delegated legislation:

1. regulations (usually Cabinet or a Cabinet Minister) “The Lieutenant Governor in Council
may make regulations”….; or
2. bylaws (municipal)

Basic principle: Regulations and bylaws must be consistent with:

1. The objectives of their enabling statutes
2. The scope of the regulatory powers set out in those statutes
o Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64
3. A regulation or bylaw will be invalid if inconsistent with its enabling statute

Chapter 4

Canadian Charter of Rights and Freedoms

• protects the interests of Canadians and provides a way to challenge perceived abuses of
basic rights and freedoms through our court system. Can prevent abuse and unfairness in
administrative actions and delegated law-making
• A right is a legal, moral, or social expectation that Canadians are entitled to from the
government.
• Applies only to interactions between the government and individuals.

• The Charter can impose fairness requirements on agencies in two ways:

1. Courts can strike down statutory provisions that weaken procedural fairness in
a way that violates Charter rights
2. Courts can read into a statute or common law a requirement to follow
procedural fairness

Who is Bound by Charter p.88:

• Section 32 of the Charter states that it applies to Parliament and government of

Canada as well as legislature and government of each province
• Also applies to ministries and departments of government as well as ABCs
carrying out delegated functions
Application of Charter
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the
authority of Parliament including all matters relating to the Yukon Territory and Northwest
Territories; and
(b) to the legislature and government of each province in respect of all matters within the
authority of the legislature of each province.
• Applies to federal and provincial governments but not private activity by private
bodies / individuals
• Charter does not regulate private activities by private persons (individuals and
corporations)
• A body will be considered “government” for Charter purposes because it actually is
the government or because it carries out government policy or programs.
• A body that is “government” will be subject to the Charter for all of its functions.
• Whether the Charter applies to another body will depend on:
1. extent of government control over the body
2. extent to which the body carries out functions that are governmental
in nature
• If a private body is carrying out a public policy or program, it may be considered
part of government for Charter purposes.
• However, will be subject to the Charter only in the carrying out of that
government policy or program not or all functions.
• Decisions in this area can be conflicting: applies to a technical college but not
generally a university (some conflicting case law on universities) – hospital
when delivering medical services but not when making internal management
decisions (mandatory retirement – HR issue)
• Courts cannot use Charter to invalidate common law rules, but may modify common law
rules to comply with Charter principles or Charter values p.89
• The Charter applies to the activities of court sin relation to certain Chaeter
rights that necessarily require or prohibit action by a court, such as the right
to a trial within a reasonable time, right of a defendant not to be compelled
to testify in a trial, etc.
1. If a court violates any of these rights, a higher court may overrule the
court’s decision b/c it violates the Charter.

• Douglas/Kwantlen Faculty Assn v Douglas College, [1990] the Supreme Court found
that community colleges (and therefore their policies) were subject to Charter oversight.
• the system of community colleges was established by government policy. Also the board
of the college was appointed and removable by the government
• The Court asked whether that body was “essentially part of the fabric of government.” If
yes, then the Charter will apply to the body, even if the activities that it is engaged in are
of a private nature.
• McKinney v. University of Guelph, [1990] the fact that a university performs a public
service does not make it a part of government. University was legally autonomous. The
 university was not implementing government policy in establishing mandatory
retirement.
• Eldridge v. BC (AG) [1997] hospitals are considered private for certain purposes and
subject to the Charter for some functions – where they act on behalf of government in
delivering a specific government policy or program.
• Providing interpreter for hearing-impaired patients contrary to s. 15
• Decisions regarding the provision of medically necessary services is carried out
for a specific government objective under the Hospital Insurance Act. In deciding
what services to provide the hospital was delivering a specific government policy
or program – that decision is subject to Charter scrutiny.
• Hospital’s not subject to Charter scrutiny over all decisions – is human resource,
corporate decisions.
• Consider the issue of the government contracting out the provision of public
services to private entities

Rights & Freedoms Guaranteed by the Charter

• Rights and freedoms including political rights, mobility rights, legal rights, language
rights, and minority educational rights
• In relation to administrative law, important rights & freedoms are of religion,
expression, peaceful assembly, and association found in Section 2

In relation to administrative law, rights & freedoms in the Charter that have greatest impact on
administrative law are:
• Fundamental freedoms in section 2 and equality rights in section 15
• 1st class (penal) - Rights in sections 9, 11, and 13
• 2nd class - Rights in sections 7, 8, and 14

INDEX of all sections:

• Section 2—Freedom of expression, religion, peaceful assembly, association
• Section 7—Right to life, liberty, security of person (fundamental justice)
• Section 8—Right against unreasonable search and seizure
• Section 11—Procedural safeguards that apply in the context of penal matters
• Section 12—Right against cruel and unusual punishment
• Section 13—Right against self-incrimination
• Section 14—Right to an interpreter where party does not speak language used or
is deaf
• Section 15—Right against discrimination; applies to administrative actions

Section 2- Open Court Principle p.91

• “(b) freedom of thought, belief, opinion and expression, including freedom of the press
and other media of communication.”
• the principle of open justice in courts is embedded in the common law tradition and,
since 1982, Section 2(b) of the Charter.
• Pre-Charter many administrative hearings were heard
Charter Rights and Freedoms
• Section 7: Life, Liberty and Security of Person
• Everyone has the right to life, liberty and security of the person and the right not
to be deprived thereof except in accordance with the principles of fundamental
justice.
• Has potential to add new procedural safeguards to the list of those that
administrator and tribunals must follow under the common law principles of
procedural fairness, and to expand existing procedural fairness requirements to
new contexts.
• For a government action to be found invalid under s. 7:
• The action must violate a principle of fundamental justice; and
• The action must threaten the life, liberty and security of the person.
• In administrative law, Section 7 often used to argue for procedural rights.
See, for example, Khadr, Suresh, Blencoe, G.(J.)
• SCC states that there is an “incompressible minimum” of disclosure
that the person whom the government seeks to remove from Canada
must receive in order for the security certificate scheme to comply
with section 7 of Charter
• Not necessary to apply s.7 in the context of tribunals b/c applying the
common law principles of procedural fairness will usually accomplish the
same end
• S.7 requirement for fundamental justice expanded the implications of the
right to representation guaranteed by common law procedural fairness.
Section 7
Established Principles of Fundamental Justice include:
• Arbitrariness
• Vagueness
• Overbreadth
• Right to Silence
• Minimum Level of Mens Rea
• Right to Full Answer and Defence
• Procedural protections

Suresh v Canada
FACTS
• Suresh came to Canada from Sri Lanka in 1990.
• recognized as a Convention refugee by the Refugee Division of the Immigration and
Refugee Board in April 1991 and applied for landed immigrant status. 
• Recognition as a Convention refugee has a number of legal consequences; the one
most directly relevant to this appeal is that, under s. 53(1) of the Immigration Act,
generally the government may not return a Convention refugee “to a country where
the person’s life or freedom would be threatened for reasons of race, religion,
nationality, membership in a particular social group or political opinion”.
• In 1995 the government detained him and started proceedings to deport him to Sri
Lanka on grounds he was a member and fundraiser for the Liberation Tigers of
 Tamil Eelam (“LTTE”), an organization alleged to engage in terrorist activity in Sri
Lanka. 
• certificate under s. 40.1 of the Immigration Act alleging that Suresh was inadmissible
to Canada on security grounds
• Suresh asked for judicial review of the Ministers decision ordering his deportation
• Procedural Protections required under s. 7 of the Charter
• The principles of fundamental justice of which s. 7 speaks, though not identical to
the duty of fairness elucidated in Baker, are the same principles underlying that
duty. 
• must be informed of the case to be met
• an opportunity be provided to respond to the case presented to the Minister
• Present evidence that they do not pose a danger to Canada and/or that they will be
tortured if deported
• Minister’s decision not saved under s. 1 – while safety important objective does not
justify the failure of the Minister to provide fair procedures where this exception
involves a risk of torture upon deportation.

Canada v. Khadr
• Khadr apprehended by the US military in 2002.
• Detained in a US military facility in Afghanistan and later in Guantanamo Bay, Cuba.
• During his detention in Cuba, Canadian officials, including CSIS, interviewed Khadr.
Canadian officials shared the evidence obtained with US officials.
• When he was charged by US Khadr sought disclosure of evidence from Canada.
• Request denied. Khadr sought review in Federal Court. Appeal dismissed. Further appeal
to Federal Court of Appeal allowed in part. Canada appealed to SCC.
• The Charter bound Canada to the extent that the conduct of Canadian officials involved it
in a process that violated Canada’s international obligations. 
• s. 7 imposes a duty on Canada to provide disclosure of materials in its possession arising
from its participation in the foreign process that is contrary to international law and
jeopardizes the liberty of a Canadian citizen.

Charter Rights and Freedoms

• Section 8: Search or Seizure p.94

• Everyone has the right to be secure against unreasonable search or seizure.
• Does not apply to routine inspections or audits of regulated businesses and industries.
Right to be free from unreasonable search and seizure arises where there is a reasonable
expectation of privacy.

• Section 9: Detention or Imprisonment

• Everyone has the right not to be arbitrarily detained or imprisoned.

• Section 10 Arrest or Detention

• Everyone has the right on arrest or detention
• (a) to be informed promptly of the reasons therefor;
• (b) to retain and instruct counsel without delay and to be informed of that right;
and
• (c) to have the validity of the detention determined by way of habeas corpus and
to be released if the detention is not lawful.

• Section 11 Proceedings in Criminal and Penal Matters p.95

• Sets out important rules that protect anyone “charged with an offence” – rare in
administrative law although there are a few statutes that impose “true penal
consequences” (ie some acts dealing with police conduct)
• Presumed innocent until proven guilty
• Trial conducted fairly
• Right not to be denied bail without just cause
• Right to trial by jury for serious charges
• Trial within a reasonable time

• Section 12: Everyone has the right not to be subjected to any cruel and unusual
treatment or punishment. P.96

• Section 13: protects the right of witnesses who testify in proceedings against self-
incrimination – protection against having compelled evidence be used against you in
future prosecutions

• Section 14 grants the right to an interpreter to a party or a witness in proceedings. May

apply in administrative law context when decision-maker holds a hearing with significant
consequences (Immigration and Refugee Board)

• Equality before and under law and equal protection and benefit of law
• Section 15. (1) Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination and, in particular,
without discrimination based on race, national or ethnic origin, colour, religion, sex, age
or mental or physical disability.
• Affirmative action programs
• (2) Subsection (1) does not preclude any law, program or activity that has as its object the
amelioration of conditions of disadvantaged individuals or groups including those that are
disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability.
• In R v Kapp, the SC rule that to convince a court that an administrative rule
or action violates section 15, an applicant must demonstrate the following:
1. The statute, program policy or activity results in a disadvantage being
imposed on a listed or analogous ground; and
2. This disadvantage results from discrimination, which the SCC has
identified as the perpetuation of prejudice, or stereotyping.

• In deciding whether there is discrimination: a court is to consider 4 factors:

 1. The existence of pre-existing disadvantage, stereotyping, prejudice or
vulnerability
2. The correspondence between the distinction and the claimant’s
characteristics or circumstances
3. The existence of ameliorative purposes or effects on other groups,
4. The nature of the interest affected

• Applied in Withler v Canada (Attorney General) p.97

• Also see Quebec (Attorney General) v A p.97

• Doré v. Barreau du Quebec, 2012 SCC 12

-Court required to balance “the fundamental importance of open, and even forceful,
criticism of our public institutions with the need to ensure civility in the profession

-Flexible approach required for Charter analysis in administrative law: full Oakes
test is too messy

-Standard of review for administrative tribunal’s decision as it relates to Charter

infringements is not “correctness” but “reasonableness”: court will only interfere if
decision is unreasonable

-Using this standard of review, Abella found that a decision is reasonable if

decision-maker balances the Charter with the statutory objectives by:

1. Considering what the statutory objectives are;

2. Determining how the Charter values at issue are best protected in view of the
statutory objectives

-A court review the decision-maker’s objectives must decide if the decision reflects
a proportional balancing of Charter rights in play

-Applied to this case: Abella found that the court had to balance right of freedom
of expression and being able to openly criticise the judicial process with the need to
ensure civility in the legal profession (defines civility)

-Court found that that the Disciplinary Council’s decision (21 day suspension) was
not unreasonable
Ratio
A reprimand from a lawyer does not automatically flow from criticizing a judge or a
judicial system.

• Law Society of British Columbia v. Trinity Western University, 2018 SCC 32

The Issue
In this case the Supreme Court of Canada was conducting a judical review of the decision of the Law
Society of Brithish Columbia (LSBC) to not accredit Trinity Western University (“TWU”) law school. As
an evangelical Christian postsecondary institution the law school required its students and faculty to
adhere to a religiously-based code of conduct, the Community Covenant Agreement (Covenant). The
Covenant prohibited “sexual intimacy that violates the sacredness of marriage between a man and a
woman.”
The Decision

The Supreme Court considered the statutory objectives of the LSBC and the limitation on the religious
protections under s. 2(a) of the Charter. The court found that the LSBC was entitled under its enabling
statute to consider TWU’s admissions policies, apart from the academic qualifications and competence of
individual graduates, in determining whether to approve accreditation.

The court found the LSBC was entitled to consider an inequitable admissions policy in determining
whether to approve the proposed law school. The court wrote at paragraph 44:

“...Its mandate is broad. In promoting the public interest in the administration of justice and,
relatedly, public confidence in the legal profession, the LSBC was entitled to consider an admissions
policy that imposes inequitable and harmful barriers to entry. Approving or facilitating inequitable
barriers to the profession could undermine public confidence in the LSBC’s ability to self-regulate in
the public interest.”

The Supreme Court agreed with the LSBC that their duty included upholdinf and protecting the public
interest in the administration of justice as precluding the approval of TWU’s proposed law school because
the requirement that students sign the Covenant as a condition of admission effectively imposes
inequitable barriers on entry to the school, affected diversity within the legal profession and would have
harmed LGBTQ individuals. Such consequences would undermine the public interest in the
administration of justice.

The Supreme Court found that the LSBC actions did infringed upon TWU’s students freedom of religion
under s. 2 of the Charter. The court then looked to justification under s. 1 of the Charter. The court
ultimately concluded, at paragraph 102 and 103:

In the end, it cannot be said that the denial of approval is a serious limitation on the religious rights of
members of the TWU community. The LSBC’s decision does not suppress TWU’s religious
difference. Except for the limitation we have identified, no evangelical Christian is denied the right to
practise his or her religion as and where they choose.

The refusal to approve the proposed law school means that members of the TWU religious
community are not free to impose those religious beliefs on fellow law students, since they have an
inequitable impact and can cause significant harm. The LSBC chose an interpretation of the public
interest in the administration of justice which mandates access to law schools based on merit and
diversity, not exclusionary religious practices. The refusal to approve TWU’s proposed law school
prevents concrete, not abstract, harms to LGBTQ people and to the public in general. The LSBC’s
decision ensures that equal access to the legal profession is not undermined and prevents the risk of
significant harm to LGBTQ people who feel they have no choice but to attend TWU’s proposed law
school. It also maintains public confidence in the legal profession, which could be undermined by the
 LSBC’s decision to approve a law school that forces LGBTQ people to deny who they are for three
years to receive a legal education.

Constitution is Supreme
• Section 52 of the Constitution Act, 1982 provides:
• The Constitution of Canada is the supreme law of Canada, and any law that is
inconsistent with the provisions of the Constitution is, to the extent of the inconsistency,
of no force or effect.

S.1 Reasonable Limits Clause

• Rights and freedoms are limited, not absolute
• Section 1 of the Charter permits infringements of rights if the infringement is reasonable
and justified in a free and democratic society
• “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set
out in it subject only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.”

• R. v. Oakes, [1986] 1SC 103

Importance of this case:

·SC’s first comprehensive treatment of meaning of s. 1.

·Primary referent for 2nd stage of Charter adjudication

• Facts:
• Mr. Oakes was found in possession of 8 vials of hashish oil and $619.45.
• charged with unlawful possession of a narcotic for the purposes of trafficking under s.
4(2) of the Narcotic Control Act
• s.8 of the Narcotic Control Act placed a “reverse onus” on Mr. Oakes to prove that he did
not intend to traffic drugs. Anyone in possession of narcotics was deemed to be
trafficking unless they proved otherwise. The trial judge found that Mr. Oakes did not
meet the burden to show he was not trafficking and he was found guilty.
• Mr. Oakes challenged this “reverse onus” provision: it violates. 11(d) of the
Charter.
• SCC held that s. 8 of the Narcotics Act is a violation of s. 11(d) of the Charter
• Issue – could the government justify the infringement under s. 1?
• In order for a law to be considered a reasonable limit of a Charter right the
government (burden on the government) must show:
• The law must be prescribed by law.
• There must be a pressing and substantial objective for the law or government
action.
• The means chosen to achieve the objective must be proportional to the burden on
the rights of the claimant.
 i. The objective must be rationally connected to the limit on the Charter
right.
ii. The limit must minimally impair the Charter right.
iii. There should be an overall balance or proportionality between the
benefits of the limit and its deleterious effects.

The Oakes Test

The Court in R v Oakes created a two-step balancing test to determine whether a government
can justify a law which limits a Charter right.

1.    The government must establish that the law under review has a goal that is both “pressing
and substantial.” The law must be both important and necessary. Governments are usually
successful in this first step.

2.  The court then conducts a proportionality analysis using three sub-tests.

a. The government must first establish that the provision of the law which limits a Charter right
is rationally connected to the law’s purpose. If it is arbitrary or serves no logical purpose, then
it will not meet this standard.

b. Secondly, a provision must minimally impair the violated Charter right. A provision that

limits a Charter right will be constitutional only if it impairs the Charter right as little as possible
or is “within a range of reasonably supportable alternatives.”[4]

c. Finally, the court examines the law’s proportionate effects. Even if the government can
satisfy the above steps, the effect of the provision on Charter rights may be too high a price to
pay for the advantage the provision would provide in advancing the law’s purpose.

In Oakes itself, the court considered that combatting the public health and safety risk created by
narcotics was a pressing and substantial goal. However, the Court ruled that a “reverse onus,”
where an accused is presumed guilty of drug trafficking unless he proves otherwise, was not
rationally connected to this goal.[5] The Court found that it would be irrational to presume an
intention to traffic narcotics when an accused only possessed a small amount of drugs. Having
failed this first step, the court did not consider step 2 (b) or (c), and the law was “struck down,”
that is, declared unconstitutional.

Limits on Charter rights & freedoms set out in sections 1 and 33

• Section 1—Charter rights & freedoms guaranteed “subject only to such

reasonable limits prescribed by law as can be demonstrably justified in a free and
democratic society”
• If a law or practice is found to violate a Charter right: onus is on the
government to establish that the violation of the right is “demonstrably
justified in a free and democratic society”
• To be Justified = law/action must meet Oakes test (four part test) p.99:
• 1. Sufficiently important objective: objective of the law or action must
be sufficiently important to justify limiting a fundamental right.
• 2. Rational connection: the law or action that the gov seeks to defend
must be rationally connected to the objective of solving the pressing and
 substantial problem in the first part of the test. It must be carefully
designed to achieve that objective, and it must not be arbitrary, unfair or
based on irrational considerations
• 3. Least drastic means: the law or action chosen must be the least
drastic means available to solve the problem. The test for this is whether
the law or action minimally impairs the Charter right. The law or action
should impair the right no more than is necessary to achieve the objective
• 4. Proportionate effect: the law or action must have a proportionate
effect on the Charter right, not an effect that is disproportionately severe.
That is, the degree to which individuals rights are impaired must not be
disproportionate to the benefit achieved by the impairment; the more
severely a government measure impairs a Charter right, the more
important the object of the measure must be for the effect to be
considered proportionate.

• Section 33—The “Notwithstanding” Clause p.99

• Parliament & provincial legislatures may override fundamental freedoms
(s.2) and procedural fairness (s. 7–15)
• To invoke, statute must be amended to state expressly that it continues to
operate “notwithstanding” a provision of the Charter
• allows governments to enact or maintain laws notwithstanding the fact they may
violate rights and freedoms in the Charter. Applies to ss. 2 and 7-15.
• If used, the law must be reviewed every 5 years.
• Rarely used. Quebec language law example. City of Toronto case 2018.
• Section 33 inserted as a compromise. Most constitutions in the world do not
contain a similar provision.

The Charter and Positive Obligations:

• Another limit to the reach of the Charter: while the Charter can prevent
government from doing things that take away people’s rights, the Charter doesn’t
require government to take positive steps to give people new rights or benefits to
which existing laws and policies do not otherwise entitle them
• Gosselin v Quebec (Attorney General) p.100: argued unsuccessfully that s.7
imposed a positive duty on government to provide more adequate welfare
benefits to certain ppl who were entitled to lower payments under the scheme
enacted by the QC government

The Charter and Discretionary Administrative Decisions:

• SCC refuses to apply Oakes test for evaluating the compliance of laws within the
Charter to determine the propriety of discretionary administrative decisions.
• Instead, approach would be a consideration of whether the decision took Charter
values sufficiently into account.
• Ensure that the Charter protections are limited no more than is necessary to
achieve the statutory objectives that the discretionary decision-maker is required
to pursue.
• In Law Society of British Columbia v Trinity Western University: SCC affirmed
that deference is owed when an administrative decision maker has asked itself
how the particular Charter value will best be protected while recognizing statutory
 objectives, and then has properly balanced the severity of the interference in light
of these statutory obejctives.

Notice of Constitutional Question

• Courts of Justice Act
• 109. (1) Notice of a constitutional question shall be served on the Attorney General of
Canada and the Attorney General of Ontario in the following circumstances:
• 1. The constitutional validity or constitutional applicability of an Act of the
Parliament of Canada or the Legislature, of a regulation or by-law made under such an
Act or of a rule of common law is in question.
• 2. A remedy is claimed under subsection 24 (1) of the Canadian Charter of Rights and
Freedoms in relation to an act or omission of the Government of Canada or the
Government of Ontario. …
• Notice is required when challenging legislation or government action
• Notice is NOT required when using Charter values as aid for interpretation

Remedies Available for a Charter Violation:

Two sources of remedies for violations of rights & freedoms guaranteed by the Charter

1. Section 24:
24(1) allows individuals to challenge administrative actions that allegedly violate
a Charter right
• A court or tribunal may declare a law to be inapplicable in a particular
situation, but a law can only be declared void or invalid under s.52(1)
• 24(2) allows a court to exclude evidence obtained through the breach of a Charter
right
• Only a court of competent jurisdiction may grant remedies that it considers
appropriate and just; tribunals may be courts of competent jurisdiction
• Awards in tribunals may be limited in practice b/c they can only award
remedies provided in their enabling statute

• Competent jurisdiction: a tribunal that meet three requirements to be

considered such a court-
1)possesses jurisdiction over the parties
2)possesses jurisdiction over the subject matter
3)has jurisdiction to grant the remedy requested
 Because tribunals are creatures of statute,
it’s necessary to examine a particular
tribunal’s enabling statute to determine
whether the statute either explicitly provided
the tribunal with these three attributes or if
not, whether the context and purpose of the
statute required that it be interpreted in a
way that would grant these powers to the
 tribunal

• 2010, R v Conway: the SCC set out a new approach for deciding whether
a tribunal can grant remedies for Charter breaches under section 24(1) of
Charter. The question of jurisdiction to grant the particular remedy is
decided after it has been decided that the tribunal is a court of competent
jurisdiction.
• Must ask the following:
1. Whether the tribunal can grant Charter remedies generally
a. Whether the tribunal has jurisdiction -explicit or
implicit- to decide questions of law
b. If it does, unless it’s clearly demonstrated that the
legislature intended to exclude the Charter from the
tribunal’s jurisdiction, the tribunal is a court of
competent jurisdiction and can consider & apply the
Charter
2. Once threshold question is decided in favour of Charter
jurisdiction, the remaining question is whether the tribunal
can grant the particular remedy sought
a. This is a question of statutory interpretation; requires
consideration of the tribunal’s statutory mandate &
functions to determine whether the kinds of remedies
sought are the kinds of remedies that the legislature
appears to have anticipated would fit within the
statutory scheme governing tribunal
• Court may grant any remedy considered “appropriate and just in the
circumstances,” including damages

• Vancouver (City) v Ward p.104:

• The SCC clarified the circumstances in which courts and tribunals
that have jurisdiction to grant Charter remedies can award damages
for a Charter breach. Also provided guidance on the appropriate
amount of damages.
• Ward’s right to be free from unreasonable search & seizure
violated by Vancouver & BC police who detained him, strip-
searched him and seized his car without cause. He sued for
damages for these breaches of Charter rights
• In Ward, the SCC allowed $5,000 for the strip search, but not
for the car seizure.
• Charter damages are appropriate remedy if they fulfill one or more of the
related functions of compensation, vindication of Charter right, or
deterrence of future breaches.
• The amount of damages must be fair to state: the court may take into
account the public interest in good governance, the danger of deterring
governments from undertaking beneficial new policies&programs, and the
 need to avoid diverting large sums of funds from public to private
interests.

2.In contrast to section 24 of the Charter, Section 52(1) of the Constitution Act, 1982 provides:
 Remedy is to for courts or tribunals to declare unconstitutional law to be void (i.e.,
“of no force or effect”)
 Whether the tribunal ahs the power to strike down an unconstitutional law or provisions
depends on whether the legislature intended to grant the tribunal the power to interpret
and apply the Charter.
 Because most tribunals have either explicit or implicit jurisdiction to decide questions of
law -at least those they must answer in order to resolve the dispute before them- the result
is that most also have the power to strike down unconstitutional laws.

Constitution is Supreme
• Section 52 of the Constitution Act, 1982 provides:
• The Constitution of Canada is the supreme law of Canada, and any law that is
inconsistent with the provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect.
• A Tribunal cannot make a general declaration of invalidity. The Tribunal may only treat
an impugned provision as invalid for the purposes of the matter before it.
Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 SCR 5

• Peter W. Hogg explains in Constitutional Law of Canada, loose-leaf, 5th ed. (Supp.)
(Toronto: Carswell, 2007), at pp. 40-52 to 40-53:
• [A] decision by a tribunal that a law is unconstitutional is no more than a decision that the
law is inapplicable in the particular case.  It is not a binding precedent.  According to the
[Supreme] Court, only “superior courts” have the power to issue binding declarations of
invalidity that will invalidate a law with general effect.  

Chapter 5

Human Rights Codes & Other Quasi-Constitutional Laws

What are Quasi-Constitutional Laws?

• Quasi-constitutional laws rank above ordinary administrative law but below the
Constitution
• “Quasi-constitutional” (they embody important rights & freedoms but—unlike the
Constitution—do not always override conflicting laws)
• Values, rights, and freedoms are often recognized in international conventions  which
are signed by all nations that support the values
• Unlike the Constitution and administrative law, quasi-constitutional laws often apply to
individuals and businesses as well as governments
 • Can include common law principles (such as solicitor–client privilege) as well as
statutes
• Solicitor-client privilege: right of a lawyer’s client to have all communications
kept confidential
• Statutes include human rights codes, the Canadian Bill of Rights’, freedom of
information laws, privacy laws, laws guaranteeing language rights

Three Effects of labelling a law quasi-constitutional:

1. Protected rights receive broad interpretation; exceptions/defences are narrowly
construed
2. Statutes interpreted consistent with the rights granted by a quasi-constitutional
law will prevail over other statutes in the event of conflict or inconsistency.
3. Key provisions adapted to changing social conditions and evolving understanding
of quasi-constitutional rights

Human Rights Codes

• Human rights codes typically prohibit discrimination and harassment on
protected grounds, such as race, ancestry, place of origin, colour, ethnic origin,
citizenship, creed or religion, sex (pregnancy & gender identity), sexual
orientation, age, marital status, family status, disability, or receipt of public
assistance
• Federal government and all Canadian provinces & territories have human rights
laws enforced by specific agencies
• Provincial or territorial—Apply to provincial & municipal gov’ts,
businesses, non-profits, and individuals
• Canadian Human Rights Act—Applies to federally-regulated businesses,
gov’t entities

• Human rights codes have two purposes:

• To deal with complaints of discrimination in the provision of goods and services,
employment and housing in the private sector
• To educate the public to avoid human rights abuses

Provincial Human Rights Codes

• Not part of the Canadian Constitution but considered to be “quasi-constitutional”
• Acts passed by the provincial legislatures
• Subject to the Charter
• If the court finds that provision of a provincial human rights code violates the
Charter, the provision can be struck down
• Only a Charter violation allows a court or tribunal to strike down a law or
regulation – law cannot be struck down because it is inconsistent with HR Code
• Codes are considered to be quasi-constitutional which means rights are broadly
interpreted and exceptions narrowly

Ontario Human Rights Codes:

 • Part I sets out basic rights and responsibilities
• Person’s right to equal treatment with respect to:
• services, goods & facilities (s.1)
• occupancy of accommodation (s.2(1))
• the making of contracts (s.3)
• employment (s.5(1))
• membership in any trade union, occupational association or self-governing
profession (s.6)
• HR Code doesn’t apply to private interactions between individuals
• Protection is directed against discrimination based on identified “prohibited” grounds
• A person can discriminate only on grounds that are not prohibited under the Code
• e.g. employer can refuse to hire someone because of poor references

Discrimination:
• Laws prohibiting discrimination have existed in Canada since turn of 20th
century
• In some jurisdictions, human rights commissions & tribunals also administer pay
equity programs (right of women to receive same pay as men for work of equal
value) and
• Employment equity: Elimination of under-representation of individuals in
designated groups (women, Indigenous peoples, members of visible minorities,
people with disabilities) in workplace
• Human rights codes also apply to the private sector (cover the actions of individuals i.e
landlords, employers, and vendors of goods & services) unlike s.15 of the Charter

• In 1985, Supreme Court recognized 2 types of discrimination: direct

discrimination and constructive (or adverse effect) discrimination (Ont
Human Rights Comm v Simpsons-Sears)
• Direct discrimination: resulting from a standard that is discriminatory on
its face
• Onus is on the employer to establish that the practice
constituted a bona fide occupational requirement
• Constructive (adverse-effect) discrimination: an individual or
organization imposes an apparently neutral requirement that
disproportionately affects a particular individual or group in a negative
way
• Employer’s duty to modify its practices in relation to the
affected employee or prospective employee -to the point of
undue hardship to the employer- in order to accommodate him or
her
• Ont Human Rights Comm v Simpsons-Sears: Direct Discrimination Bona
Fide Requirement
• Court held that an employer could refuse to hire an individual or terminate
employment if ind. Was unable to meet a requirement imposed on other
 employees only if the requirement was a bona fide occupational
requirement/qualification.
• Bona fide occupational requirement: would be essential for
anyone to do a particular job successfully.
• To prove a BFOR, the employer must show that the requirement:
1. is rationally connected to job performance
2. was adopted in good faith
• 3. is reasonably necessary to accomplish the work-related
purpose
Employment example:
• Employee bears burden (BOP) of establishing a prima facie case of discrimination:
• C. is a member of a group protected by the Code
• C was subject to adverse treatment
• C’s protected group status was a factor in the alleged adverse treatment
• =prima facie case
• Burden shifts to Respondent to justify BFOR

• Constructive (Adverse-effect) discrimination: Duty of Reasonable

Accommodation
• The doctrine of accommodation provides that where a seemingly
neutral qualification or requirement (ex being clean shaven) has a
disproportionate negative impact on a group protected by human rights
legislation, the onus is on the employer to accommodate the special
needs of the affected candidates or employees(all measures without
causing undue hardship to the business) or to demonstrate that it’s
unable to reasonably accommodate the employees’ needs without undue
hardship to the business.

• Prohibited Grounds of Discrimination:

• race
• ancestry
• place of origin
• colour
• ethnic origin
• citizenship
• creed (religion)
• sex (whether male or female; including pregnancy)
• sexual orientation (heterosexuality or homosexuality)
• Gender identity and expression (transgender)
• age (18 & over, 16 & over in occupancy of accommodation)
• marital status (single, married, divorced, separated, common law partnerships)
• family status (parent, child)
• disability
• in receipt of public assistance – in accommodation only
• record of offences (provincial offences, pardoned Criminal Code offences) – in
employment only
Harassment and Sexual Harassment
• Areas in which harassment are prohibited include employment and
accommodation
• Harassment: Vexatious comments or conduct directed at a person (race, ancestry,
or other prohibited ground)
• Sexual harassment: Any unwelcome sexual solicitation or advance
• Reprisal: Any unpleasant consequence imposed in retaliation for an action (e.g.,
firing a worker, refusing promotion, withholding benefits, or assigning demeaning
tasks for rejecting unwanted sexual advance or making a complaint to human
rights commission)  an offence to make or threaten to make a reprisal against a
person for attempting to assert or enforce his or her human rights

• Limits to Protection under the Code:

s. 14 – protects affirmative action programs, e.g. women’s hockey league is a special
program to assist disadvantaged group therefore can refuse men
• s. 17(1) – an employer can discriminate on the basis of disability if disabled person is
incapable of performing essential duties
• But under s.17(2) employer must prove disability cannot be accommodated without
undue economic hardship
• Other examples
• s.20(1) – use of the services or facilities may be restricted to persons of the same sex on
the ground of public decency
• s.20(3) recreational club may discriminate based on age, sex, marital status or family
status.
• s.21(1) – discrimination allowed in occupancy of residential accommodation if sharing
bathroom or kitchen with owner or owner’s family
• s.24(1)(a) – religious or social institutions that serve persons identified by race, ethnic
origin, sex etc. can restrict employment to only persons similarly identified
• s.24(1)(c) – discrimination allowed in hiring of employee to look after medical/personal
needs

Enforcement of Human Rights Codes

• Most human rights laws establish human rights commissions with various
powers and functions (e.g., educating the public, establishing policies,
investigating and resolving allegations of discrimination or harassment)
• Ontario Human Rights Commission OHRC primarily carries out public
education and policy-making functions. Has right to initiate cases on its own
and intervene in cases before the Human Rights Tribunal of Ontario.
• Human Rights Tribunal of Ontario:
• A person who believes he/she has been discriminated against
may file an application with the Human Rights Tribunal of
Ontario under s. 34
• Tribunal resolves applications through mediation or
adjudication (hearing)
 • Other specialized bodies may have concurrent jurisdiction to rule
on violations of the Code
• Labour Relations Board, Special Education Tribunal, etc.
• Section 46.1 of Code - Civil Remedy (can go to court for human
rights claim but cannot bring a claim in court based solely on a
human rights complaint under Part 1

• Concurrent jurisdiction: Where the alleged violation of employment law,

education law or landlord & tenant law is also a violation. Of the human rights
code, both the tribunal or court with jurisdiction over the subject matter and the
human rights commissions or tribunal may have jurisdiction to hear & provide
remedy
• British Columbia v Figliola: Figliola challenged Workers’ Compensation
Board’s chronic pain policy before the Board’s Review Board. SCC ruled
against Figliola find that the principles of finality, avoidance of
multiplicity of proceedings, and protection for the integrity of
administration of justice are to be considered.

Remedies for Discrimination and Harassment

• Human rights codes often give tribunals and commissions wide latitude to craft
appropriate remedies for individuals
• Remedies may address past violations or prevent future violations
• Human rights bodies have power to order gov to change practices & policies that
result in systemic discrimination against a group of individuals.

Remedies- Section 45.2 p.122

• General Damages - compensation for injury to dignity, feelings and self-respect.
• Special Damages – lost wages, relocation expenses
• The goal of compensation in human rights law is to restore an applicant to the
position they would have been in had the discriminatory act not occurred
• Reinstatement
• removal of a harasser from work environment
• Offer of Employment
• Public Interest Remedies - training, develop non-discriminatory policies,
• Apologies

Freedom of Information and Protection of Privacy Statutes p.124

• Provincial, territorial, and federal legislatures all require governments to provide
public with access to general government records while protecting privacy of
“personal information”
• Personal information—Information that government has collected about
individuals
• Access and privacy laws are quasi-constitutional laws
The Canadian Bill of Rights p.125
• Quasi-constitutional statute that codified many common-law rules of
procedural fairness and contained rights similar to those now found in the
Charter
• Dictates that all other federal laws must be interpreted and applied in a manner
that doesn’t deprive a person of right to fair hearing. Also provides that every
other law of Canada must be interpreted to not infringe the rights recognized
in it; unless law states otherwise.
• Canadian Bill of Rights still in force but has largely been superseded by the
Charter (see Singh v Minister of Employment and Immigration)

Official Language Laws p.126

Language rights are considered fundamental human rights in preserving cultural identity &
institutions.
• Constitution provides for right of individuals to speak and be spoken to in either
official language (only in certain contexts)
• Charter expanded language rights; quasi-constitutional laws extended them
further
• Official Languages Act (OLA) 1969 requirements include:
• Federal institutions must provide services in both languages in areas
designated “bilingual”
• Federal public service employees in bilingual regions may work in their
chosen language
• Language choice cannot prevent applicant for public service job from
obtaining employment
• Decisions made by federal government do not have a negative impact
on minority language speakers
• The federal government respects equal status of both languages

Chapter 6
Right to be Heard

Where Procedural Fairness Rules are Found p.136

• Agencies’ enabling statutes; other statutes under which agencies make decisions
• Common law principles
• Canadian Charter of Rights and Freedoms
• Canadian Bill of Rights; Quebec’s Charter of Human Rights and Freedoms
• Section 35 of the Constitution Act, 1982  requires adequate consultation with
First Nations before development decisions are made that may affect Indigenous
land claims
• Procedural fairness is “contextual,” not absolute
Determining appropriate level of fairness & specific procedures a tribunal/agency must
follow considers:
• nature of the decision
• nature of the statutory scheme
• importance of decision to the affected person
• extent to which affected person has legitimate expectations of a particular
process
• extent to which legislature intended the decision-maker to have discretion to
choose its own procedure

Common law Principles of Procedural Fairness:

• if a statute sets out a more specific fairness requirement than the common law in a
particular situation, the statutory requirement takes precedence, regardless of
whether it is more onerous or less oernous than the common law requirement
• Statutory fairness requirements take precedence over common law requirements
Some types of departures from common law procedural fairness:
• “Adequate” notice periods
• What information must be shared with other parties

The two basic Common Law principles of procedural fairness:

• the right to be heard
• the right to an unbiased decision-maker (Ch 7, Fairness: Bias)

First pillar of procedural fairness is requirement to provide a hearing

• In addition to fairness, tribunal has duty to give all other parties/persons an
opportunity to be heard
• In Ontario, the requirements for a fair hearing before tribunals subject to the
SPPA are generally more stringent than the requirements for hearings before
tribunals that are not subject to the SPPA
• Amendments to SPPA in 1990 allowed tribunals to hold written and
electronic hearings without parties’ consent as long as such hearings do
not prejudice any of the parties
• In electronic hearings- some form of cross examination of
witnesses may still be required
• In written hearings- the exchange of written questions & answers
may be substituted for oral cross examination

The Requirement to give all parties opportunity to be heard:

• Usually implies a measure of equality, although precise equality is not always
necessary
• To be heard: not necessary for all parties to present oral evidence in the presence
of the tribunal and for witnesses to be cross-examined.
• In some cases, as long as each party had an opportunity to submit written
material and respond to the other parties’ written material; the hearing will
be considered fair.
Components of Right to be Heard: p.140
• Right to notice: All persons whose rights, privileges, or interests may be substantially
affected by a decision are entitled to notice of the proceeding
• Purpose is to:
1. give the parties enough info about the subject matter of the hearing to
allow them to prepare to address the issues and;
2. provide enough time to do so
2. Limits on right to notice:
• Does not always include the right to disclosure of evidence
• Section 5.4(1) of the SPPA gives Tribunals the power to require
disclosure of particulars in addition to evidence if the tribunal has
made rules governing the process
• Particulars: details that clarify matters related to evidence,
arguments or remedies disclosed before or in the course of a
proceeding
• May v Ferndale Institution: SCC expanded common law requirement for
disclosure  duty of procedural fairness generally requires a
statutory decision maker to disclose the information that he or she
relied on in reaching a decision

• Requirement to retain evidence: Investigators must retain evidence that it may be

necessary to disclose to a tribunal or party in the future in order to ensure a fair hearing at
that time [see Charkaoui v Canada (Citizenship and Immigration)]

• Right to be present: Parties have right to be present throughout the entire hearing
process
• Electronic hearing: satisfied if all parties are able to hear each other and
adjudicator in a teleconference, or see & hear everybody in a video
conference
• Written hearing: right to receive all relevant info presented to tribunal and
be given reasonable opportunity to respond

Tribunal may proceed in absence of a party where:

• A party has been served but does not attend
• A party continues to disrupt a proceeding
• A party “walks out” in protest
• The evidence is of a particularly sensitive nature

• Right to be represented p.144: Parties may present their own case or have it
represented; does not include an absolute right to an adjournment to find representation,
only a reasonable opportunity
• Limits to be represented: p.144
• Does not give a party an absolute right to an adjournment to obtain
representation
 • Right to present evidence: Parties have the right to present evidence to establish facts of
case; a summons issued by the tribunal to a witness requires the witness to attend the
hearing, bring relevant documents and present evidence.
• Failure to comply with a summons issued under the SPPA is an offence

• Right to cross-examine: Parties can respond to evidence brought against them; some
provinces allow tribunals the right to place reasonable limits on cross-examination

• Right to be heard in a timely manner and receive a decision without delay: “Justice
delayed is justice denied”

• Requirement that the person who hears must decide p.146: Person who hears a case is
only person who may decide the case (see Mary Shuttleworth v Licence Appeal Tribunal)
• See also Chapter 6 feature box, “Shuttleworth, Adjudicative Ethics, and the Modern
Tribunal”

• Requirement to base the decision solely on the evidence: Parties can expect tribunal’s
decision will be based on facts established at hearing, not on other information;
Exception is judicial notice or administrative notice

• Requirement to give reasons for a decision: Arises when the decision may seriously
affect an individual’s rights, privileges, or interests, or when reasons are necessary to
exercise the right to appeal

• For more on procedural fairness and legitimate expectations, see Baker v Canada
(Minister of Citizenship and Immigration)

Chapter 7—Fairness: Bias

• The first pillar of procedural fairness is the right to be heard.
• Second pillar of procedural fairness is impartiality: parties have a right to have their
case heard by an adjudicator who is impartial.
o Impartial decision maker: not biased for or against any of the parties and who
would not be perceived as biased by a reasonable and well-informed observer.
 Two elements of impartiality:
• Individual impartiality: Decision-maker must be free from individual bias
• Must start hearing with an open mind
• Reserve judgment until all evidence and arguments considered
• Institutional impartiality: Tribunal/agency must not be structured to suggest that
its decisions will favour one party over another
• Members must be able to decide freely
• In tribunals: the impartiality requirement has two components. First, the
decision-maker must start the hearing with an open mind and reserve
judgment until all evidence have been presented. If he is inclined to
 support one party over the other, and if this bias is not institutional, then
decision maker is said to be influenced by personal bias. Second, to be
perceived as impartial, the tribunal must be reasonably independent of any
government agency that is a party to its hearings. If the tribunal is
structured in a way that does not permit its members to decide freely
between the parties in accordance with the applicable law, the decision
makers are said to be influenced by institutional bias.

• Actual Bias and Reasonable Apprehension of Bias

• It is improper for a decision-maker to hear a case where he has an actual bias
• It is improper to hear a case where there is a reasonable apprehension of bias
(appearance of bias to a reasonable, well-informed observer)
• There is a presumption that judges are impartial - high threshold to successfully
challenge a decision based on reasonable apprehension of bias.
• integrity of the legal system requires both fairness and the appearance of fairness
throughout the court process.
• The test for reasonable apprehension of bias is whether a reasonable person
properly informed would apprehend that there was conscious or unconscious bias
on the part of the judge.
• Strong presumption of judicial integrity; burden is higher than a simple balance of
probabilities, but lower than proof beyond a reasonable doubt
• The entire agency may appear to be biased when it is structured in such a way that
a well-informed person would have a reasonable belief that the agency is likely to
favour a particular party or class of parties in a substantial number of cases.
• The extent to which the tribunal is independent of the parties-whether they are
individuals or companies, or government officials or bodies- is not conclusive
evidence of whether there is an institutional bias. However, independence or a
lack thereof is one of the most important factors in determining whether there is
institutional bias or a reasonable apprehension of institutional bias.

• Statutes
• Various pieces of legislation and rules of tribunals deal with conflicts of interest,
for example:
• Public Service of Ontario Act, 2006 (PSOA) provides for the Conflict of Interest
Commissioner to assist public servants’ understanding of conflict of interest rules
and how to apply them.
• Social Justice Tribunals of Ontario – Conflict of Interest Rules
• Municipal Conflict of Interest Act, R.S.O. 1990 c. M.50

Brian Crane has suggested that the following types of bias can be identified from the case
law;
 • Institutional bias;
• Pecuniary interest in the outcome;
• Other relationships;
• Pre-judgment;
• Interference with the Hearing
•

• Elements of Individual Bias

• Bias can arise from conflict of interest, prior knowledge of facts that are
prejudicial to one of the parties, or a friendship with or dislike of one of the
parties
• Conflict of interest: A specific kind of bias -Any interest, including a financial
interest, incompatible with an individual’s function as a tribunal member

• Indicators of Possible Bias

• When a decision-maker:
• meets with one party in absence of other parties
• has a friendship with or is related to someone with vested interest in case
• has financial interest in outcome of the case
• belongs to an association with vested interest in the outcome
• persistently favours one party during hearing
• shares opinions before evidence & arguments are heard
• expresses strong like/dislike for a party / witness
• has been in litigation against party/witness
• has had significant professional relationship with a party/witness
• accepts gifts or favours from a party or witness
• has played a part in the case at any stage

• Committee for Justice and Liberty v. National Energy Board, [1978] 1 SCR 369
• Facts: National Energy Board conducted hearings considering competing
applications for a Mackenzie Valley pipeline.
• The Board assignment Mr. Crowe as part of the panel to hear the applications.
• The appellants objected to Mr. Crowe’s participation because of reasonable
apprehension of bias.
• Mr. Crown had recently been employed as a director of an organization that was
intimately connected to an earlier proposal to build this pipeline. Mr. Crowe had
helped plan the terms of a contemplated application to the NEB.
• He had quit that job to work for NEB less than 6 months before the hearings, and
he assigned himself to be on 3 person panel hearing this.
• Issue: is there bias?
• Held
• the function of the NEB is quasi-judicial, or, at least, is a function which the
Board must discharge in accordance with the rules of natural justice.
 • A reasonable apprehension of bias arises where there exists a reasonable
probability that the judge might not act in an entirely impartial manner. The issue
in this situation was not one of actual bias. Thus the facts that Mr. Crowe had
nothing to gain or lose either through his participation in the Study Group or in
making decisions as chairman of the National Energy Board and that his
participation in the Study Group was in a representative capacity became
irrelevant.
• The participation of Mr. Crowe in the discussions and decisions leading to the
application by Canadian Arctic Gas Pipeline Limited for a certificate did however
give rise to a reasonable apprehension, which reasonably well-informed persons
could properly have, of a biased appraisal and judgment of the issues to be
determined.
• Dissenting judgment sets out the test for reasonable apprehension of bias that is
still used today.
• the apprehension of bias must be a reasonable one, held by reasonable and right
minded persons, applying themselves to the question and obtaining thereon the
required information. In the words of the Court of Appeal, that test is “what
would an informed person, viewing the matter realistically and practically—and
having thought the matter through—conclude. Would he think that it is more
likely than not that Mr. Crowe, whether consciously or unconsciously, would not
decide fairly.”
• NEB is a tribunal that must be staffed with persons of experience and expertise.
Dissenting judged distinguished the NEB from courts and quasi-judicial bodies.

• Dulmage v. Ontario (Police Complaints Commissioner) (1994), 30 Admin LR (2d) 203

(Ont. Div Ct.)
• Facts:
• A woman complained under the Police Services Act that two police officers acted
improperly when they "caused a female police officer to conduct a public strip
search of the complainant".
• A board of inquiry was appointed under the Act.
• The police officers applied to the board for an order to disqualify one of the three
members of the board. The police officers alleged reasonable apprehension of
bias. One of the appointed panel members was a member of the Congress of
Black Women of Canada (Mississauga chapter). The vice-president of the
Toronto chapter of that same organization stated at a press conference that the
strip search incident was not an isolated case and reflected the sexual humiliation
and abuse of black women.
• The board adjourned to consider the bias allegations. The Chair advised counsel
that the Mississauga and Toronto chapters of the Congress of Black Women of
Canada were separate legal incorporations. The panel member, as president of the
Mississauga chapter D was not aware of any involvement of herself or her chapter
 discussing the complaint in question. The Chair of the Board refused to dismiss
the panel member.
• The police officers applied to have all three members withdraw. The board
dismissed the applications. The police officers applied for judicial review of the
decisions of the board.
• The Ontario Divisional Court allowed the application. The court quashed the
decision dismissing the application to disqualify and ordered that the proceedings
be heard by a completely differently constituted panel.
• Issues: Was the test for establishing reasonable apprehension of bias met? Did the
panel’s presentation of evidence in defence of one of its members against
allegations of that member’s bias raise a reasonable apprehension that the other
panel members were also biased?
• Held: The board's approach to the question of reasonable apprehension of bias
was not complete. It is unnecessary to show an individual is biased, or that a
person might be influenced, or that a certain position be repudiated.
• The test is whether there is a reasonable apprehension of bias on the part of a
reasonable person.
• “inflammatory statements dealing with the very incident involved in this inquiry
were made by an officer of the Congress of Black Women of Canada. Those
statements were made in Toronto, closely adjacent to the City of Mississauga.
They deal with an incident which received significant public attention. The
statements referred to the incident as an "outrage" and called for the suspension of
the officers involved. Those officers were the very ones involved in this hearing.
• Ms. Douglas was the president of the Mississauga chapter of the same
organization.
• In the circumstances I conclude there was a reasonable apprehension of bias on
the part of a reasonable person and the motion to disqualify Ms. Douglas should
have been allowed.”
• 2nd issue - While the subsequent actions of the Chair in attempting to deal with the
matter might not, of themselves, have led to a reasonable apprehension of bias,
they did aggravate the appearance of bias which existed. The board, as presently
constituted, should be prohibited from proceeding further with the inquiry, and
the proceedings should be heard before a completely differently constituted panel.

• Elements of Institutional Bias

• The impartiality of a decision-maker is determined by examining his or her state
of mind
• Independence of tribunal is a matter of its status
• Requirement of institutional impartiality:
• the duty of a tribunal to be impartial is not a duty to be independent from
the government. While the Constitution requires that courts be
independent of the other branches of government, there is generally no
 similar requirement for tribunals, although it is possible that independence
could be found to be a constitutional requirement in limited circumstances.
• Statutory exceptions: A built-in bias will be acceptable if it is required by statute
and not unconstitutional
• For ex: When a statute requires a tribunal to follow policies established by
a regulator, even though the regulator is one of the parties to a dispute
before a tribunal. These statutory requirements are overruled by common
law fairness requirements only where they violate a person’s rights or
freedoms under the Charter
• What Constitutes Independence: To meet the constitutional requirement of
judicial independence, judges must have security of tenure, financial security, and
control of the operations of their courts. The courts will look at these same factors
when considering whether a tribunal is impartial. Tribuanals are not expected to
have same degree of independence as courts. Whether a tribunal’s lack of
independence will be enough to create an appearance of institutional bias depends
on the types of decisions the tribunal is required to make and the degree to which
it is expected to implement government policy.

• Does Agency-Gov’t Relationship Contribute to Institutional bias?

• Most important considerations:
• Closeness of relationship between agency/tribunal and government
department affected by its decisions
• Whether agency has multiple functions that overlap such that some
employees have inappropriate influence over others (see Changes at the
Immigration and Refugee Board)
• Questions a court will ask:
• Are agency or tribunal members appointed for a fixed term?
• If the appointment is for a fixed term, how long is the term?
• Are members’ salaries fixed or can they be raised/lowered?
• Are the appointments full-time or part-time?
• How much power does a chair have over appointing panels?
• Are agency staff employed by the agency or the government?
• How much does an agency have to follow government policy?
• Is the agency chair subject to a performance evaluation?
• Does the agency’s government department decide its budget?

• Ocean Port Hotel Ltd. V. British Columbia (General Manager, Liquor Control and
Licensing Branch), 2001 SCC 52
• An initial police investigation and a subsequent investigation by a Senior
Inspector with the Liquor Control and Licensing Branch led to allegations that the
respondent, which operates a hotel and pub, had committed five infractions of the
Liquor Control and Licensing Act and Regulations.
 • Following a hearing, another Senior Inspector with the Branch concluded that the
allegations had been substantiated and imposed a penalty that included a two-day
suspension of the respondent’s liquor licence.
• The respondent appealed to the Liquor Appeal Board.
• The findings on four of the five allegations were upheld, and the penalty was
confirmed.
• Pursuant to s. 30(2)(a) of the Act, the chair and members of the Board “serve at
the pleasure of the Lieutenant Governor in Council”. In practice, members are
appointed for a one-year term and serve on a part-time basis. All members but the
chair are paid on a per diem basis. The chair establishes panels of one or three
members to hear matters before the Board “as the chair considers advisable”.
• The Court of Appeal concluded that members of the Board lacked the necessary
guarantees of independence required of administrative decision makers imposing
penalties and set aside the Board’s decision.
• It is well established  that, absent constitutional constraints, the degree of
independence required of a particular government decision maker or tribunal is
determined by its enabling statute.  The statute must be construed as a whole to
determine the degree of independence the legislature intended.  Confronted with
silent or ambiguous legislation, courts generally infer that Parliament or the
legislature intended the tribunal’s process to comport with principles of natural
justice.  However, like all principles of natural justice, the degree of independence
required of tribunal members may be ousted by express statutory language or
necessary implication.
• There is a fundamental distinction between administrative tribunals and courts. 
Superior courts, by virtue of their role as courts of inherent jurisdiction, are
constitutionally required to possess objective guarantees of both individual and
institutional independence.  ..  Administrative tribunals, by contrast, lack this
constitutional distinction from the executive.  They are, in fact, created precisely
for the purpose of implementing government policy. …While tribunals may
sometimes attract Charter requirements of independence, as a general rule they do
not.
• The legislature’s intention that Board members should serve at pleasure is
unequivocal. …The Board is not a court, nor does it approach the constitutional
role of the courts.  It is first and foremost a licensing body….

• 2747-3174 Quebec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 SCR 919
•  Following a hearing, the directors of the Régie des permis d'alcool du Québec
revoked the respondent's liquor permits on the ground of disturbance of public
tranquility -- The company challenged various provisions of the Quebec liquor
licencing statute. The provisions dealt with both the operation and structure of the
Regie
• The company alleged institutional bias.
 • The arguments against the Regie relate primarily to its role at various stages in the
liquor permit cancellation process àthe act allows employees of the Regie to
participate in the investigation, filing of complaints, the presentation of the case to
directors Ø Although overlapping functions are not always a group for concern, it
must nevertheless not result in excessively close relations among employees
involved in different stages of the process
• Held: a detailed review of the Régie's structure and multiple functions raises a
reasonable apprehension of bias on an institutional level.
• The Act authorized employees of the Régie to participate at every stage of the
process leading up to the cancellation of a liquor permit, from investigation to
adjudication…. here a person informed about the role of the Régie's lawyers
would have a reasonable apprehension of bias in a substantial number of cases.
• …Prosecuting counsel must never be in a position to participate in the
adjudication process. The functions of prosecutor and adjudicator cannot be
exercised together in this manner. Moreover, the Act and regulations authorize the
chairman to initiate an investigation, decide to hold a hearing, constitute the panel
that is to hear the case and include himself or herself thereon if he or she so
desires.….
• The three main components of judicial independence are:
• financial security,
• security of tenure and
• institutional independence.
• The structure of the Régie was not problematic. However, a separation among the
Directors and lawyers involved in the various stages was necessary to eliminate
the apprehension of bias arising from their overlapping roles.
•

• Overlapping functions and institutional bias

• Appearance of bias: When those who recommend/prosecute proceedings against
a person decide whether to take away the person’s rights, privileges, or benefits
• A clear separation of roles avoids the appearance of bias

• Statutory Exceptions to Institutional Impartiality—A statute may provide:

• that a tribunal must follow government policy
• that chair must report to minister of dept appearing as a party before the tribunal
• that the minister has right to approve tribunal’s rules of procedure
• that the chair must provide any information about tribunal’s operations that the
minister requests
• that the agency’s budget must be approved by the minister
• Any bias resulting from these requirements is immune from attack in the courts

• Raising an Allegation of Bias

• Allegations should be raised as early as possible
 • Best way to raise the issue will depend on the circumstances of each case
• Court will consider party to have waived the right to argue an allegation of bias if
they do not raise it during the hearing
• Right is not waived if party raises an allegation but member continues to
hear the case

• Tribunal Response to an Allegation of Bias

• If an adjudicator is concerned about appearance of bias, he or she may:
• ask tribunal chair to assign a different adjudicator
• informally disclose facts to parties and volunteer to stand aside
• decide it is in public’s interest to continue to hear case if he/she believes
there is no actual bias or reasonable apprehension of bias
• Simplest approach is usually for the adjudicator to stand aside
• An adjudicator may present facts in his or her own defence
• See cases: Dulmage v Ontario (Police Complaints Commissioner),1994; Ocean
Port Hotel Ltd v BC (General Manager, Liquor Control & Licensing), 2001

Bias

Notes and Cases

Lack of impartiality, like the right to be heard, used to be reserved for quasi-judicial
decisions. After Nicholson, bias covers more kinds of decisions, but, like the right to be
heard, the doctrine is stretched thin by the time it reaches “purely administrative”
decisions. As before, the more administrative the decision, the weaker the protection.
Policy, at the far edge of the spectrum, is all but immune from fairness doctrines. Only
constitutional and bad-faith arguments can touch them. That is, policy makers and
legislators are not only allowed to be partisan, but we expect it. Another way to express
it: in a representative democracy, judges should respect the politically mandated
authority of at least one or two elected officials. What’s the point of running for office if
you can’t bring your political bias to decision- and law-making?
Money, Money, Money

Back when strictly a component of natural justice, bias was a * This is still true, and most
very simple concept: if the DM had a financial interest, he or governmental actors, even
she was disqualified to make the decision. For direct financial the purely political ones,
are also bound by statute
conflicts of interest, this idea was routinely extended to other to avoid acting when their
administrative decisions, but on grounds of bad faith rather financial interests are
than bias once we moved away from a quasi-judicial affected.
decision.*

But, as with everything in administrative law, the devil is in the details. How direct does
the financial interest have to be?

Cases A to E
A. A judge hears a case involving someone who owes her $4,000. The party complains
at the start of trial. The judge thinks to herself, “It’s only $4,000, and to me, it’s not a
lot of money. I know I can keep that out of my mind when deciding this case, and if I
step down, it will be another six months before the case can be heard.” Should the
judge recuse herself? Why?

B. At the competition tribunal, the chair of a three-member panel has to decide

whether the company before it violated the Competition Act. If so, it could face very
large penalties. The chair has significant holdings in the company. The chair thinks to
himself, “I don’t want them to lose, but at the same time, I know my obligations to
be fair, and even if I get a bit selfish, the other two can keep me in check.” Should
the chair recuse himself? Why?

C. At city council, a popular councillor sits on the Economic Development Committee. A

restaurant owner whom he knows well and who has contributed to his campaigns
comes before the board to ask for permission to expand his restaurant. Should the
councillor recuse himself? Why?

D. Another councillor on the same committee hearing the same matter has announced
she intends to retire before the New Year and go back to her successful restaurant
supply business. Her business, now held in blind trust, is in the same neighbourhood
as the restaurant owner. Should she recuse herself?
 E. In Louisiana, a statute permits police departments and courts to seize the “proceeds
of [the] illicit drug trade.” This means that if, say, a go-fast car is caught with drugs in
it, local police can seize it after a guilty finding. Any cash found in the car will go,
after a guilty finding, to the coffers of either the state police or state courts. Any bias
problems?

Like right to be heard, missteps are fatal if the DM proceeds despite bias.

Expanding Bias

Bias, from its simple beginning, expanded in two ways: more things (besides financial
interests) now qualify as bias, and more kinds of decisions are covered by bias.

Most writers separate bias into two flavours, personal and institutional bias. Personal
bias is what it sounds like: the DM has some personal interest that makes him or her an
unfair choice. Institutional bias means something in the decision-making system injects
unfairness.

Consequently, the old test for bias—direct, personal financial interest—needed some
tweaking. De Grandpré J. gives us the Canadian test for reasonable apprehension of
bias:

[T]he apprehension of bias must be a reasonable one held by reasonable and right
minded persons, applying themselves to the question and obtaining thereon the
required information. . . . [T]hat test is what would an informed person, viewing the
matter realistically and practically—and having thought the matter through—
conclude. Would he [or she] think that it is more likely than not that [the decision-
maker], whether consciously or unconsciously, would not decide fairly. 1

Justice de Grandpré goes beyond a mere “reasonable person” test. Instead, he embeds
features of administrative law in his test. Breaking it down a bit,

 Reasonable here means what it usually does: whether a prudent person think the
DM was compromised.

1
Committee for Justice and Liberty v National Energy Board, [1978] 1 S.C.R. 369 at 394–5. Emphasis
added.
 The rest, though, are unique to administrative law: a right-minded person, informed
about the situation, and viewing it realistically and practically, and thinking it
through. This isn’t a simple amplification of reasonableness. Instead, de Grandpré J.
seems to suggest that the test must recognise that administrative DMs will never
have the independence of judges, and the practical, right-minded, thoughtful,
deliberative thinker knows this.

For example, we know instantly that it would be improper for a judge to hear a case
involving a party that lent the judge money. Direct financial interest. No problem.

But what about a provincial human-rights adjudicator deciding a case where the
respondent is the Province of Ontario? Civilians may conclude that the adjudicator, who
is appointed by the province, isn’t going to bite the hand that feeds her. This would be a
reasonable conclusion.

Justice de Grandpré’s test, though, forces us to confront the fact that all administrators
are appointed by and paid by the government. That can never change. (If appointed for
fixed terms and subject to renewal, the government has even more control.) The right-
minded, deliberative, thorough thinker would understand this, and could not use that
by itself as grounds for bias. We need something more.

Note too that it’s reasonable apprehension of bias. Actual bias isn’t the test. As the
bumper sticker says, “Justice must not only be done, but be seen to be done.” We want
the appearance of fairness. It does not matter that the DM is actually unbiased or can
discount any personal factors. In fact, the DM is not allowed to lead evidence of actual
impartiality. Reasonable apprehension is enough to fatally review the decision.

We ask only for proof of apprehension of bias because:

 Proving actual bias is tough—no DM (other than someone like Duplessis, who
unapologetically brandished his bad faith) would admit to personal bias, which
means many covertly unfair decisions would be left standing
 Proving actual bias is embarrassing to the DM and government, and ultimately
undermines faith in public institutions
 Apprehension of bias, on the other hand, lets a judge say the DM made a correct,
fair decision, but should have let someone else make it—very face-saving for the
government
Personal Bias

Cases F and G
F. Commissioner Gordon at a quasi-judicial board looks at the docket for the morning
and sees his mother is bringing a complaint against his archenemy, Jack “Why So
Serious?” Napier. “This will be sweet,” he says to himself, as he rubs his hands
together in cartoonish, malicious glee. That afternoon he notices that he will hearing
a matter with his old buddy Bruce Wayne in the respondent’s chair.

This is dead easy: What issues of personal bias does the case raise?

G. A human-rights lawyer believes that discrimination against people with disabilities

remains horrendous. She writes an op-ed piece that calls for the Human Rights
Tribunal of Ontario to “use its teeth” and make the world better, fairer and more
equitable for everyone, regardless of abilities. As well, she is a scholar, having
written journal articles and spoken at academic conferences on discrimination.
Two years later, she is appointed to the HRTO. A business is responding to a
complainant’s charge that the business has illegally discriminated against him
because of disability. Should the lawyer/adjudicator recuse herself? Why?

Institutional Bias

As the doctrine expanded to cover more decisions, personal bias grew to include
institutional bias. Is the decision-making organisation set up in a way that introduces
bias?

If you’re old skool, you call this abuse of discretion, improper subdelegation, fettering
discretion, irrelevant consideration or bad faith, the traditional jurisdictional errors we
used to use to challenge decisions not covered by natural justice. If you are more
fashionable, you call it institutional bias, and don’t have to worry about whether the
decision-making is governed by natural justice because bias is included in procedural
fairness, and all but a handful of DMs have to give that.

Judges consider these things when assessing institutional bias:

  How independent are the DMs? Are their political masters interfering with their
decisions?
 Are DMs well paid? Volunteer board members are OK, but professional DMs need
enough money to avoid always siding with their employer.
 How long are DMs appointed? Do they have tenure?
 If not, what is the renewal process? Are they evaluated on their expertise, fairness
or their loyalty to the regime?
 Does an element of the DM’s procedure introduce bias? Are DMs involved at earlier
stages? Is the investigator sitting in judgment of his or her own investigation? That
is, does this agency separate functions the way the legal process does (which is
good) or consolidate them? Is the investigator the proverbial “judge, jury and
executioner”?
Everything is in its context. Seldom is one factor enough. Even presumptively very bad
processes, such as “judge, jury and executioner” scenarios, have a place. A federal food
inspector has the power to enter a meat packing plant at will, conduct an investigation,
and, if diseased or tainted meat is found, order it destroyed. It’s an impressive
concentration of power. But given the clear public-safety implications, does it really
offend us that a federal agency has that sort of power?

Keep in mind that a statute can incorporate some bias, and that’s OK. For example, if
the statute says an investigator can sit on the board, then that’s fine. Labour law
provides an example, too. Three-member panels of labour boards are deliberately
biased—one member is chosen by the employer, one by the union, and the third is
chosen by first two members. However, if the legislative goal is independent decision-
making, the decisions must ultimately be “free-ish” of bias. In de Grandpré’s J. words,
bias deliberately added by statute would be a factor the reasonable person, apprised
fully of the facts, would include (and be forced to discount) when deciding whether the
decision was fairly made.

Case H
H. After being hammered by the Divisional Court, a quasi-judicial board decides to rely
more on its lawyers. The chair sends an internal memo which reads, “From now on,
please have your decisions reviewed by in-house counsel. We need to use the
language of the court to avoid embarrassing reviews.” The lawyer does a good
editing job, and decisions now sound as good as they are on their merits. Lately,
though, the lawyer has been asking for clarifications, clarifications that sound
 increasingly like cross-examinations. At some points he has even said, “Are you
sure? That’s not the law. In a case like this, you have to side with the applicant. Just
saying.”

What issues of institutional bias does this raise?

Timeliness

When considering the right to be heard, the first requirement of fairness, the defect can
almost always be cured later by an internal review or rehearing by the same or another
DM. The courts consequently insist on exhausting all remedies before bringing an
application for review on this ground. Only if a party was never fairly heard during the
entire process would a decision be void.

Bias, though, is different. A DM who doesn’t at first respect your right to be heard can
later do so; but a biased DM is biased throughout. Nothing can cure a biased DM except
a new DM. Because a DM’s bias saturates the whole process involving that DM, courts
are more willing to hear an application on this ground right away.

But we have pitfalls:

 If you complain too late after you learn of bias, then you may have waived your right
to complain.
 If you complain, and the DM carries on anyway, you should participate despite the
bias. If it turns out later you were wrong (and there was no reasonable apprehension
of bias), and you did not participate at the first hearing, you could be stuck with the
first decision. In that case, not participating would be a waiver of the right to be
heard.

Chapter 8: Advocacy Before Government Departments, Administrative Agencies and Tribunals

• Advocacy Before a Department or an Administrative Agency
 o Advocacy: Act of pleading for or supporting a position or viewpoint;
representation on behalf of a client
o Decision-making structure: Agencies often make decisions behind closed doors,
which complicates the job of the advocate (person who pleads for or represents
the position or viewpoint of another) or representative

• Steps in the Advocacy Process (Non-Tribunal):

o Representative advocating before agency that is not a tribunal must take some
or all of these steps:
1. Determine what laws and policies apply
 Gov’t decision makers exercise powers granted by statute.
Statute/regulation that delegates those powers set out broad rules
for decision-making  including nature & scope of the decision,
the persons responsible for making the decision, general
procedures to be followed & criteria to be applied.
2. Determine stages in process and deadlines
 Important to identify stages in decision-making process and find
out deadlines for making comments/suggestions
3. Determine who makes decision at each stage
 Advocate has to find out which gov’t department is involved at
each stage and contact with the various individuals
4. Determine concerns of the department or agency and other stakeholders
 Important to understand the particular concerns of each participant
5. Tailor submissions to focus on issues identified by decision-makers and
external opponents
 Submissions on the client’s behalf should focus specifically on the
issues identified by the decision-makers and by external opponents
to the application. The arguments should be presented within the
framework that the agency will use in making the decision.
6. Obtain access to information via formal access route (application under
the freedom-of-information laws) or informal access route (direct contact
with the agency)
 Formal access route can be costly and time consuming
o Requests under Freedom of Information Statutes: must be
made in writing and in some jurisdictions; a fee must
accompany the application. Often a standard request form,
which is usually available from the agency holding the
documents.
 In Ontario & most jurisdictions: it’s not necessary
to use the form; the request can be sent to the
agency’s FOI coordinator.
  In Ontario: an agency’s refusal to provide
documents, failure to decide whether or not to
disclose docs within a specified time limit, failures
to conduct a thorough search for records, and the
fee it charges for searching and retrieving records
may be appealed to the Information and Privacy
Commissioner (whose independent of the gov).
Commissioner has right to order gov to provide
information that’s not specifically exempt from
disclosure.
 Informal access route: faster and cheaper than a formal application
to the agency. Esp useful for identifying what documents are
available and which officials are likely to possess them. If the
informal route doesn’t produce the information that the advocate
seeks, knowing where to find the necessary documents will make it
easier for the advocate to use the formal procedures under FOI
laws
7. Obtain reasons for the decision
 Advocate’s job is to ensure client is informed of the reasons for the
department or agency’s final decision.
 Ontario’s SPPA and BC’s Administrative Tribunals Act do not
require departments and agencies other than tribunals to provide
reasons.
8. Determine any statutory right to review or appeal
 If client receives unfavourable decision: advise to have a review of
the decision or to appeal it, as well as the time limits for filing an
appeal or request for review.

• Advocacy Before a Tribunal:

o Do NOT assume that:
1. Tribunals follow the same rules or procedures as a court
 In Ontario: SPPA gives tribunals broad jurisdiction to hear and
admit evidence that would be presumed inadmissible in civil
proceedings.
2. A different standard of behavior and preparation applies to tribunals than
to courts
 Tribunals should be treated the same way as courts. Advocate’s
analysis and preparation should be as rigorous as they would be in
court
3. All tribunals are alike
  There are differences in procedures, policies and functions that will
affect the advocate’s preparation and presentation before a
tribunal.
o As those who have appeared before administrative tribunals know only too well,
familiarity with court practice provides only limited comfort when one is
confronted with the vagaries of the practice and procedure developed by
specialized tribunals in an attempt to carry out their particular mandates in a fair
and efficient manner.

• Steps in the Advocacy Process (Tribunal)

o Advocacy before a tribunal involves these steps:
1. Determine which tribunal (or court) is best
2. Find out about the tribunal—its enabling legislation, rules of procedure &
practice guidelines, and decisions the tribunal has made in similar cases
 Most tribunals post links to CanLII virtual library of Canadian
legal info, at https://www.canlii.org
 Important to find out the time limits for applying to the tribunal.
Tribunals often have shorter limitation periods than courts.
o Sometimes: application to appeal a decision is as short as
15 to 30 days after decision is made.
o While many tribunals have right to extend this limit, not all
do. Client of an advocate who misses this deadline may
lose right of access to the tribunal, and advocate may be
open to a lawsuit for negligence.
3. Determine the standing requirements
 Every tribunal has rules that determine who may appear before as a
party or an intervenor
 Advocate whose client does not automatically have standing (right
to participate in a hearing as a party or intervenor) should
determine how and when to apply for standing
4. Identify issues (questions the tribunal must answer to arrive at a decision);
issues may be a question of fact, a question of law, a question of mixed
fact and law, or could be questions regarding correct policy to apply, how
to interpret the policy, or questions about tribunal’s discretionary power,
how to interpret/exercise power in good faith and for an authorized
purpose
 Question of fact: factual dispute about what actually took place
that must be resolved by the tribunal questions (ex: whether a
product advertised as performing a function or producing a result is
capable of performing the function or achieving the result)
 Question of law: question about what law applies or how to apply
the law
  Question of mixed fact and law: questions of how to apply a legal
standard to a set of facts
5. Determine burden of proof (obligation to provide enough evidence) and
standard of proof (quality of evidence)
6. Collect evidence and identify witnesses
7. Secure attendance of witnesses
8. Research the law
9. Organize materials: ensure witnesses have been served with subpoenas;
prepare a binder with documents; and provide participants with a book of
authorities
10. Plan an effective presentation
11. Obtain reasons for the decision

Chapter 9—Tribunal Procedures Before Hearings

Balancing Informality Against Efficiency and Fairness

• Pre-hearing procedures are built into decision-making to improve efficiency and fairness
• Procedures include techniques used to:
o clarify or resolve issues
o promote settlement
o ensure all participants have info necessary to prepare their case for presentation
at a hearing
Notice of Hearing:
• Anyone affected by proposed decision must be given notice, including (at minimum):
o Date, time, location of hearing, or of preliminary procedure (e.g., pre-hearing
conference)
o Purpose of hearing
o Info on hearing or pre-hearing procedure
o Steps the interested person must take to participate

Party Status (Standing):

• Party status/standing: Right to participate fully in a hearing (e.g., Ontario Residential
Tenancies Act, 2006)
Rights commonly attached to party status:
• Right to any disclosure of evidence to which parties are entitled under statute or
common law
• Right to give evidence
• Right to call witnesses
• Right to make submissions and participate in final argument
• Right to notice of tribunal’s decision and reasons
 • Right to appeal the tribunal’s decision
Identification of parties:
• Individuals and organizations other than statutory parties may seek standing

Intervenor Status:
• Intervenor: Person who may participate in a hearing without the full range of
party rights
• The power to grant participant or intervenor status may be set out in statute or be
an aspect of tribunal’s authority to make rules of procedure
• Like party status, intervenor status may be determined by pre-hearing conference
or motion brought by an interested person
• In absence of rules/guidelines/previous tribunal decisions related to granting
intervenor status, factors to consider include:
• Nature of the case
• Nature of the person’s interest in the proceeding
• Extent to which person is likely to be affected by outcome of proceeding
• Likelihood the person can make useful contribution to resolution of issues

Pre-Hearing Conferences:
• Pre-hearing conferences (PHCs) also sometimes called preliminary hearings or case
conferences: Allow tribunals to make procedural orders and obtain agreements from the
parties
• Ontario’s SPPA, BC’s Administrative Tribunals Act (ATA), Quebec’s AJA all provide
for PHCs
• Purpose and format of PHCs
varies among tribunals

Disclosure of Evidence:
• Evidence: Information a party
seeks to use in legal proceeding
to prove or disprove allegation
Disclosure of evidence may take the form of:
• Exchange of documents
• Oral or written questions and answers (examination for discovery,
interrogatories)
• Witness statements, expert witness reports, list of other documents, access to
other evidence
Time at which disclosure required determined by:
• Statutory and procedural rules
• Requirements set out in the notice of hearing
• Discussion at a PHC
• A request for disclosure brought in a motion
• A combination of these methods

Disclosure of Particulars:
 Tribunals may order parties to disclose particulars if requirement is in the tribunal’s
procedural rules
 Advantages of settlement before the hearing:
• Parties resolve the dispute on their own terms
• Parties and tribunal are saved cost of a hearing
 Tribunal may have power to overrule; parties who do not settle may not be bound by
settlement

Assistance in Settling Issues:

 Techniques to motivate parties to settle include:
• Disclosure (often prerequisite to negotiations)
• Setting a firm hearing date
• Adjournments for a short/specified period
 Tribunal may try to facilitate settlement via mediation
 Tribunals may have authority to reject settlement and hold hearing

Determining Choice of Hearing Format:

 Oral, electronic, or written?
• Tribunal must consider if electronic or written hearing is fair and efficient
 • Oral hearing may be more appropriate than written or teleconference when:
tribunal must visit an outside location; witnesses must refer to visual aids; or
observing witnesses is important in assessing their credibility
Preliminary Motions:
 Some types of motions presented before hearing:

• Motion for Directions

• Motion for Summary Determination
• Motion to Decide a Jurisdictional Issue
• Motion to Decide a Constitutional Question (see feature box Authority of the
Tribunal to Decide Constitutional Questions – Martin/Laseur)
Chapter 10: Tribunal Procedures During Hearings

Hearing Formats: Oral

 In oral hearing, all participants physically present in same place; get same information at
same time
 Advantages:
• Reduced documentation saves time and cost
• Direct and efficient communication
• Cross-examination, presentation of arguments, and responses can be carried out
efficiently
• Tribunal has direct control; intervenes as needed
• Easier access to proceeding by public
 Disadvantages:
• Cost of the hearing space, travel, and accommodation
• Difficulty finding a time when all tribunal members and participants can attend in
person

Hearing Formats: Electronic

 Electronic hearing is generally held through tele-conference or video conference
 Advantages:
• Reduced written documentation saves time, cost
• Video allows observation of participants and tribunal members
• Procedural efficiency
 Disadvantages:
• Costs for using video conferencing facilities
• Documents must be transmitted prior to hearings
• Teleconferences do not allow for observation (difficulty identifying speakers &
difficulty controlling hearing process)
• Communication quality not as predictable/reliable
Hearing Formats: Written
 In a written hearing, all evidence, arguments, responses in written form and exchanged
between participants
 Advantages:
• Eliminates travel time and costs
• Finding a common time & location not necessary
• Eliminates costs of hearing facility & court reporter
 Disadvantages:
• Time and cost to prepare & distribute documents
• Time delays in updating evidence
• No opportunity to observe witnesses
• Difficult to enforce deadlines; complicates hearing
• Use of interrogatories extends hearing process
• Lack of transparency and procedural fairness

Choice of Hearing Format

Procedures: Oral or Electronic Hearings
• Tribunal presents introductory comments
• Tribunal addresses preliminary matters
• Parties present opening statements
• Parties present their evidence
• Parties cross-examine each other’s witnesses
• Re-examination
• Reply evidence is called
• Parties present closing arguments
• Tribunal either gives (“renders”) its decision or postpones (“reserves”) it until a
later date
Procedures: Written Hearing
• Tribunal sends notice to parties
• The party required to prove the disputed issue sends documents
(evidence/arguments) to other parties and tribunal
• Tribunal requests written responses
• Responses are sent to tribunal and other parties
• Tribunal may grant first party opportunity to respond to responses
• Tribunal makes all documents in the hearing public
• Tribunal notifies the parties that the hearing is complete
• Tribunal begins writing a decision
• Tribunal sends its decision to the parties

Participants in the Hearing and Their Roles

• Applicant or appellant—sets proceeding in motion
• Respondent—replies to application, allegation, or appeal
• Intervenors—play more limited role than parties
• Representatives—lawyer (counsel) or agent
• Witnesses—provide factual information
• Tribunal counsel or agency counsel—play one of two distinct roles: presenting case on
behalf of a party; or providing legal advice to adjudicator
• Court reporter—records all testimony, arguments
• Adjudicator—sets procedures for conduct, implementing them fairly & flexibly; takes
detailed notes of evidence & arguments; maintains control over hearing; deals with
procedural matters

Hearing Procedures:
 Introductory Remarks—at beginning of hearing, adjudicator will often:
• Introduce themselves
• State names of parties; describe purpose of the hearing
• Confirm that all parties are present
• Ask if any other person present will participate
• Describe the hearing process
• Ask if any questions about tribunal’s procedure
 • Ask if any preliminary matters before hearing begins (e.g., requests for
adjournment, clarification of procedures, jurisdictional issues)
• (See text App. D for sample opening statement)

Preliminary matters:
• Adjudicator’s 1st task—determine if any preliminary matters should be decided before
hearing proceeds or after the hearing
• Adjudicator’s 2nd task—if there are any preliminary motions, determine in which order
they should be heard
• Preliminary matters can include:
• Jurisdiction
• Absence of a party or representative
• Request for adjournment
• Request for stay of proceedings (temporary suspension of hearing until other
proceedings are completed)

Hearing of the Case on the Merits:

 Once preliminaries are complete, adjudicator calls on parties to present their cases as follows:
• Opening statements
• Parties present their evidence (see text, Coates v Ontario for burden and standard of
proof)
• Closing arguments or submissions
• Consultation with tribunal counsel

Chapter 12: Management and Control of the Hearing Process

Authority to Manage the Hearing Process:

• Principles of procedural fairness/efficiency require tribunals to have authority and tools
to manage the hearing process
• Authority to manage hearings may be in a statute of general application or in the
tribunal’s enabling legislation
• Tribunals should aim to balance certainty, consistency, flexibility
Authority to Control the Conduct of Hearings
Tribunals have inherent right under common law to take any steps necessary to control their
process, including:
 Power to deal with contempt SPPA s.13
 Power to bar an incompetent representative SPPA s.23
 Power to compel witnesses SPPA s.12(4)
 Power to prevent abuse of process SPPA s.23(1)
 Power to maintain order SPPA s.9(2)
 Power to award costs or expenses SPPA 17.1

Power to Deal with Contempt:

Conduct that may amount to contempt includes:
• Disruption of the proceeding
• Failure of a participant to carry out undertaking
• Failure of a witness to obey a summons
• Failure of a party to obey a valid order of tribunal
• Statements by parties to media intended to influence outcome of hearing
• Tribunals cannot impose formal sanctions but some can refer the matter to a court for
review and punishment

Contempt Proceedings:
13(1) Contempt proceedings
Where any person without lawful excuse,
(a) on being duly summoned under section 12 as a witness at a hearing makes default in
attending at the hearing; or
(b) being in attendance as a witness at an oral hearing or otherwise participating as a witness at
an electronic hearing, refuses to take an oath or to make an affirmation legally required by the
tribunal to be taken or made, or to produce any document or thing in his or her power or control
legally required by the tribunal to be produced by him or her or to answer any question to which
the tribunal may legally require an answer; or
(c) does any other thing that would, if the tribunal had been a court of law having power to
commit for contempt, have been contempt of that court,
the tribunal may, of its own motion or on the motion of a party to the proceeding, state a
case to the Divisional Court setting out the facts and that court may inquire into the matter and,
after hearing any witnesses who may be produced against or on behalf of that person and after
hearing any statement that may be offered in defence, punish or take steps for the punishment of
that person in like manner as if he or she had been guilty of contempt of the court. (SPPA)

Contempt Proceedings:
• See West End Development Corp (1994), 29 Admin LR (2d) 71
s. 13 entails a two-step process:
1) Was there contempt?
2) If there was, whether the Board, in the exercise of its discretion, ought to forward the matter to
the court.
A Tribunal’s jurisdiction to entertain contempt allegations is limited to deciding whether to state
a case to the Divisional Court. It is restricted to determining whether a prima facie case has been
made out for the conduct described in s. 13 of the SPPA.
The jurisdiction to make findings of fact, to adjudicate findings of guilt, and to determine
whether to punish a person in like manner as if the person had been guilty of contempt of court is
reserved to the Divisional Court

Contempt Proceedings:
• Double booking by lawyers
Lawyers are officers of the court and a lawyer who undertakes to appear in court on behalf of a
client at a specified time commits to being present at that time unless he or she takes the remedial
steps called for in R. v. Anders …(arrange for an adjournment, ask to be excused from attending
or find substitute counsel), or unless some unforeseen event occurs. A lawyer's ethical and
professional obligation is the same whether the court attendance is for a murder trial or to speak
to sentence or even to attend on a matter to be spoken to. But when determining whether to make
a finding of contempt of court, … the court should consider the consequences of failing to
appear. The nature of the proceedings, delay, inconvenience to the participants ….prejudice to
the client, wastage of court time and resources, and repetitious conduct may all be relevant in
assessing the consequences of a lawyer's non-attendance on the administration of justice.
Conduct that has little or no effect on the administration of justice cannot support a conviction
for contempt.. . . . .
In short, the fault requirement for criminal contempt calls for deliberate or intentional conduct, or
conduct which demonstrates indifference, which I take to be akin to recklessness. Nothing short
of that will do. And, of course, the court hearing a contempt charge must consider the accused's
explanation, including any apology tendered, and then determine on all of the evidence whether
the case has been made out beyond a reasonable doubt ... (pp. 750-1)
• R. v. Glasner, 19 O.R. (3d) 739 (September 1994), Ontario Court of Appeal

Abuse of Process
23(1) Abuse of processes
A tribunal may make such orders or give such directions in proceedings before it as it considers
proper to prevent abuse of its processes.
23(2) Limitation on examination
A tribunal may reasonably limit further examination or cross-examination of a witness where it
is satisfied that the examination or cross-examination has been sufficient to disclose fully and
fairly all matters relevant to the issues in the proceeding.
23(3) Exclusion of representatives
A tribunal may exclude from a hearing anyone, other than a person licensed under the Law
Society Act, appearing on behalf of a party or as an adviser to a witness if it finds that such
person is not competent properly to represent or to advise the party or witness, or does not
understand and comply at the hearing with the duties and responsibilities of an advocate or
adviser. (SPPA)
Abuse of Process
• Refers to conduct by a participant in a proceeding involving a flagrant and serious
violation of the rules of procedure or other reasonable expectations of the tribunal.
• Vexatious Litigants
• The HRTO has the power to find an individual a vexatious litigant as part of the
Tribunal’s power to control its processes and prevent abuse of power.
• an individual could be declared a vexatious litigant if the Tribunal was satisfied that, on
an objective standard, the applicant has persistently and without reasonable grounds
instituted vexatious proceedings or conducted herself in a vexatious manner during the
proceedings.

Authority to Control the Conduct of Hearings:

Power to Bar a Representative:

• If incompetent or does not understand/carry out duties
• ATA permits tribunal to eject any person from a hearing for disobeying an order
or direction of tribunal (s 48)—(See AM v Michener Institute for Applied Health
Sciences, 2011 HRTO 843 at para 53)
• AM v Michener Institute for Applied Health Sciences, 2011 HRTO 843:
[53]  In the circumstances of this case, applying the same considerations, the
Tribunal’s power to control its own process and its ability to make such orders as it
considers proper to prevent abuse of its processes, I found it necessary to exclude
counsel.  Counsel’s conduct had become a significant impediment to the fair, just and
expeditious resolution of the merits of the complaint.  Indeed, counsel’s conduct was becoming
the focus of the proceeding on many days of hearing as opposed to the serious issues raised by
the complaint and response.  
• Tribunal has the power to control its own process in each particular case and to
make such orders as are necessary to prevent an abuse of its process.
Power to Compel Witnesses
• If a witness fails to attend/refuses to provide evidence, the tribunal may ask a
judge to issue a warrant for arrest
• 12(4) Bench warrant
A judge of the Superior Court of Justice may issue a warrant against a person if
the judge is satisfied that,
• (a) a summons was served on the person under this section;
• (b) the person has failed to attend or to remain in attendance at the hearing (in the
case of an oral hearing) or has failed otherwise to participate in the hearing (in the
case of an electronic hearing) in accordance with the summons; and
• (c) the person's attendance or participation is material to the ends of justice.
• 12(4.1) Same
The warrant shall be in the prescribed form (in English or French), directed to any
police officer, and shall require the person to be apprehended anywhere within
Ontario, brought before the tribunal forthwith and,
• (a) detained in custody as the judge may order until the person's presence as a
witness is no longer required; or
 • (b) in the judge's discretion, released on a recognizance, with or without sureties,
conditioned for attendance or participation to give evidence.
Power to Prevent Abuse of Process
• Tribunals have the right to prevent abuse of process even without statutory
authority

Power to Maintain Order—Some tribunals can deal with disorderly conduct by ordering
offending person to obey tribunal’s procedure and, if the conduct continues, calling the police
Power to Award Costs
• Tribunals do not generally have power to award costs, but some enabling statutes
allow for it
• 9(2) Maintenance of order at hearings
A tribunal may make such orders or give such directions at an oral or electronic hearing
as it considers necessary for the maintenance of order at the hearing, and, if any person
disobeys or fails to comply with any such order or direction, the tribunal or a member
thereof may call for the assistance of any peace officer to enforce the order or direction,
and every peace officer so called upon shall take such action as is necessary to enforce
the order or direction and may use such force as is reasonably required for that purpose.
• I.B.E.W., Local 353 v. Bemar Construction (Ont.) Inc., [1992] O.L.R.B. Rep. 565

Power to Award Costs:

o Tribunals generally do not have the power to award costs at a hearing
o But some enabling statutes authorize individual tribunals to award costs
o Ontario’s SPPA was amended in 1999 to permit tribunals to award costs to a party where
another party has behaved unreasonably or in other ways considered improper, or has
acted in bad faith
o This power can serve to deter parties from engaging in disruptive or obstructive
conduct at a hearing.
o Tribunals subject to BC’S ATA have a general power to award costs in accordance with
regulations that may be made, and in addition, may demand reimbursement of their own
expenses incurred as a result of a party’s improper conduct.

Costs
o 17.1(1) Costs
Subject to subsection (2), a tribunal may, in the circumstances set out in rules made under
subsection (4), order a party to pay all or part of another party's costs in a proceeding.
o 17.1(2) Exception
A tribunal shall not make an order to pay costs under this section unless,
o (a) the conduct or course of conduct of a party has been unreasonable, frivolous or
vexatious or a party has acted in bad faith; and
o (b) the tribunal has made rules under subsection (4).
o ….
o 17.1(4) Rules
A tribunal may make rules with respect to,
o (a) the ordering of costs;
 o (b) the circumstances in which costs may be ordered; and
o (c) the amount of costs or the manner in which the amount of costs is to be determined.
o Robinson v. College of Early Childhood Educators, 2018 ONSC 6150
o Facts: Robinson was an early childhood educator and member of the College of Early
Childhood Educators. After an 18-day hearing of the Discipline Committee of the Early
Childhood Educators he was found guilty of professional misconduct for abusing a child
under his supervision.
o Discipline Committee revoked his certificate of registration and ordered him to pay 2/3 of
the costs of the College for the hearing. The Committee awarded he pay costs in the
amount of $257,353.76.
o Robinson appealed the order to the Divisional Court challenging the Committee’s
jurisdiction to order costs but not the quantum.

Robinson v. College of Early Childhood Educators

Issue: Can the Discipline Committee issue a cost award in the absence of unreasonable, frivolous
or vexatious conduct?
Legislative Provisions:
• The SPPA prevents a tribunal from ordering costs except where the conduct or course of
conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in
bad faith.
Early Childhood Educators Act, SO 2007, c. 7, Sched. 8
• Section 33(5)4 of the ECEA provides that “if the Discipline Committee finds a member
guilty of professional misconduct”, it “may make an order . . . fixing costs to be paid by
the member.”
• Section 55 of the ECEA provides that “if there is a conflict between this Act, the
regulations or the by-laws and the Statutory Powers Procedure Act, the provisions of this
Act, the regulations and the by-laws prevail.”
Rules of Procedure of the Discipline Committee
• 16.04: The Committee may at any stage of the proceeding order a party to pay costs
where the conduct of the party has been unreasonable, frivolous or vexatious, or a party
has acted in bad faith.
Robinson argued that the tribunal’s cost decision was unreasonable because it ignored its own
rules.
Court upheld the Discipline Committee’s cost award.

Canada (Attorney General) v. Mowat, 2011 SCC 53

• Appellant was a soldier in the Canadian Forces who experienced sexual harassment and
discrimination during her time in the service.
• She applied to the Canadian Human Rights Tribunal and was given a modest ($5000)
award of damages for sexual harassment.
• She sought her legal costs which totaled more than $196,000. Tribunal awarded her
$47,000 in partial satisfaction for legal fees.
• Attorney General appealed arguing Tribunal had no jurisdiction to award costs.
• Issue: Did the Tribunal make a reviewable error in deciding that it could award
compensation for legal costs?
Legislative Provisions
(2) If, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry
relates is substantiated, it may ... make an order against the person found to be engaging or to
have engaged in the discriminatory practice and include in the order any of the following terms
that it considers appropriate:
…..
• (c) that the person compensate the victim, as the Tribunal may consider proper, for any or
all of the wages that the victim was deprived of and for any expenses incurred by the
victim as a result of the discriminatory practice; and
• (d) that the person compensate the victim, as the Tribunal may consider proper, for any or
all additional cost of obtaining alternative goods, services, facilities or accommodation
and for any expenses incurred by the victim as a result of the discriminatory
practice.

• Tribunal relied on the power to grant “any expenses incurred by the victim as a result of
the discriminatory practice” as its jurisdiction to award costs.
• SCC disagreed with the Tribunals statutory interpretation:
• [37]…… If the use of the term “expenses” had been intended to confer a free-
standing authority to confer costs in all types of complaints, it is difficult to
understand why the grant of power is repeated in the specific contexts of lost
wages and provision of services and also why the power to award expenses was
not provided for in its own paragraph rather than being repeated in the two
specific contexts in which it appears. …
• Moreover, the term “costs”, in legal parlance, has a well-understood meaning that
is distinct from either compensation or expenses. It is a legal term of art because it
consists of “words or expressions that have through usage by legal professionals
acquired a distinct legal meaning”: …Costs usually mean some sort of
compensation for legal expenses and services incurred in the course of litigation.
If Parliament intended to confer authority to order costs, it is difficult to
understand why it did not use this very familiar and widely used legal term of art
to implement that purpose.

Represented v. Unrepresented
• If a party is represented, the adjudicator may make the representative responsible for a
client’s conduct
• If a party is unrepresented, adjudicators sometimes choose to let the party express anger
rather than strictly enforcing standards of procedure

Protestors:
• Protestors may demonstrate outside or bring banners and signs into the hearing room
• Adjudicators must balance respect for protestors’ constitutional rights with the need to
protect the rule of law

Abusive Participants:
Laurel Cropley (former immigration adjudicator, federal) suggests “three strikes & you’re out”
rule:
(1) Stop the individual who is speaking, warning them that the behaviour will not be tolerated
(2) If the behaviour continues, warn the individual that they will be asked to leave unless it
ceases
(3) If the individual ignores the warning, ask them to leave the proceeding

Closed (In Camera) Hearings:

• Section 2(b) of the Canadian Charter of Rights and Freedoms requires court and tribunal
proceedings to be held in public unless there are exceptional circumstances (Codified in
statutes such as the SPPA)
• Closed (in camera) hearings: No one but the parties, representatives, witnesses, and
tribunal members and staff are permitted

Exclusion of the Media from a Hearing

• Hearings closed to public may or may not be closed to media, depending on governing
statute
• Parties in closed proceedings may have to sign undertaking not to reveal evidence at
tribunal
• Tribunals may issue publication ban—If media attend hearing, tribunal cannot forbid
publication of information disclosed at hearing unless specifically authorized by statute

Exclusions of Parties from a Hearing

• If it is necessary to keep information confidential, a tribunal may deny a party the right to
be present during the time when that information is discussed

Chapter 13: Conduct Outside the Hearing

Introduction:
Standards of conduct observed by participants and tribunal members outside the hearing apply
to:
• communication outside the hearing between participants and tribunal members
• social contact between tribunal members and individuals or organizations that
may appear before tribunal in future proceedings
• contact with media by participants and tribunal members
• public statements by adjudicators about previous decisions of the tribunal or
issues that may come before the tribunal in the future

Ex Parte Communication:
Ex parte: “On one side only”
• Prohibited by principle of procedural fairness (the obligation of impartiality) in
tribunal proceedings
• Participants should not discuss case with an adjudicator without all panel
members and participants present
 • Procedural matters should be dealt with through the tribunal staff

• Adjudicators should be wary of casual conversation with participants

• Fraternization: Friendly social interaction (see feature box in text, “The
Dangers of Fraternization”)

Adjudicators, Representatives and Social Media

• Similar to traditional fraternization, judicial and adjudicative misconduct may appear
when tribunal members, parties, or legal representatives use social media (e.g., Facebook,
Twitter, LinkedIn)
• Currently little guidance on ethical use of social media by adjudicators
Examples of questions & concerns:
• Can adjudicators use personal social media without compromising professional ethics or
principles?
•  Can adjudicators “friend” lawyers & paralegals?
•  Should adjudicators avoid establishing social media relations?
•  Should adjudicators avoid blogging or using listservs, message boards, interactive
gaming?

Contact with the Media

• Parties have wide latitude to publicize their views
• Parties must be sure not to argue their cases to the media
• Information given to the media should be consistent with the evidence given at
the hearing
• Tribunal members should not discuss any current or future case with the media

Comments on the Tribunal’s Decisions

• Generally, adjudicators will not defend, explain, or comment on decisions of the tribunal
• In exceptional circumstances, a tribunal may respond to requests to comment—
Statements will generally be provided by the tribunal chair, registrar, or counsel rather
than by adjudicator
• Constraints do not apply if there are errors or ambiguities in a decision

Public Statements by Adjudicators

• Expressing views that may be relevant in subsequent hearings before being appointed to a
tribunal generally does not disqualify adjudicators from serving—Adjudicator may be
disqualified from deciding cases involving those issues
• Appointed adjudicators cannot publicly take positions—Could lead parties to believe
adjudicator will not view issues with open mind

Chapter 14 – Tribunal Decision-Making Procedures

Overview of the Decision-Making Process

In administrative agencies, decision-makers:
1. Identify the issues to be settled
 2. Obtain relevant information from the person who will be directly affected by the
decision
3. Apply agency’s policies, guidelines, or criteria to the facts
4. Consult others whose interests may be affected

Tribunals
Following the hearing, the adjudicator:
• identifies issue(s) raised by parties in the course of the hearing
• reviews and weighs evidence presented
• reviews the arguments of the parties
• makes findings of fact based on the evidence

Following the hearing (cont’d):

• determines law/policies/guidelines that apply to the facts
• applies law, policies, and guidelines to the facts
• writes the decision and reasons for the decision
Tribunal may inform parties of decision immediately after hearing or may reserve decision

Rules of Consensus and Dissent

If a case is decided by a panel, there must be a minimum level of consensus on the decision
• If one or more members disagree with majority, most tribunals allow minority to
write a dissent
If the panel has an even number of members and there is a tie, there are three possible solutions:
• Governing statute may require a unanimous decision
• Governing statute may provide for tie-breaking vote
• If first two don’t apply, hearing must be held again

Basis for the Decision

• Tribunals differ from administrative agencies in kind of information they rely on for
decision-making
Admin agencies—Decision-makers can rely on any relevant information (many sources and
many forms); however, procedural fairness may require they disclose basis for their decision and
give persons affected an opportunity to challenge it

Tribunals—Decision-makers can only base decisions on evidence obtained during the hearing,
excluding:
• Commonly known facts that are not disputed by reasonable people
• Specialized knowledge that is inherently uncontroversial (i.e.,
immediately/ accurately demonstrated by available /reliable sources)

Orders and Remedies

A tribunal’s decision often includes orders or remedies for specific measures to be taken to:
• compensate for a wrong
• provide relief
Remedies limited to those authorized by tribunal’s governing statute
 • Remedies that tribunals are authorized to grant usually reflect purpose of
the proceeding (see feature box in text, “Examples of Remedies That
Tribunals May Grant”)
• Tribunal decisions usually forward-looking rather than punitive (i.e.,
usually result in orders to carry out or cease some activity in future, rather
then require compensation or restitution)

Assistance in Making the Decision or Drafting the Reasons

• Generally, only the tribunal members who heard a case may make the
decision (tribunal counsel or tribunal’s chair may provide some assistance)
• No one may pressure an adjudicator to decide for or against a particular
party
• If a statute does not require regulator to share advice from counsel with
parties, parties have no right to be informed

Requirement to Give Reasons

Reasons for the decision should set out:

• the issue(s) addressed in the case
• a summary of the evidence
• findings of fact based on the relevant evidence
• statement of law and any applicable policies and guidelines

Release of the Decision

Dealing with Delay
• Little can be done to speed resolution of a case
• Some governing statutes include requirements for tribunals to produce decisions
within a specified period of time
• A party can apply to a court to order the tribunal to make its decision, but this is
costly
Communication of the Decision
• Parties receive the decision at the same time (before it is made available to any
other person)
• Dealing with Delay—see Ramsay v Toronto (City) Commissioners of Police (1988), 66
OR (2d) 99 (Div Ct)

Chapter 15 -Challenging Decisions of Tribunals and Administrative Agencies

Common Grounds for Challenging Decisions:

• Agency acted outside its jurisdiction
• Agency failed to take an action that it was legally obligated to take
• Agency improperly delegated a decision
• Agency failed to consider options it was obliged to in exercising its discretion
• Agency misinterpreted the applicable law
 • Agency acted in bad faith
• Agency failed to follow fair procedures
Review of Decisions by Administrative Agencies Other Than Tribunals—In some cases,
agency’s enabling statute provides right to appeal to independent tribunal, or complainant may
be able to apply for judicial review

Avenues for Review of Decisions

Review of Decisions Made by Tribunals

Two routes to challenge tribunal decision in court:
• Appeals—statutory time limit
• Judicial review—time limits vary by province
Time limit usually specified in rules of procedure
Timing may also be subject to tribunal’s governing statute—e.g., section 21.2(2) of Ontario’s
SPPA; BC’s Administrative Tribunals Act (ATA)
Effect of Challenge on Compliance with the Decision
• A stay is an order issued by a tribunal/court suspending the decision being
challenged
Test for granting a stay—Decision-maker must be convinced that:
• There is a serious issue to be determined
• Irreparable harm will be suffered if not granted
• Balance of convenience favours granting a stay

Specific Review Mechanisms

• Review procedure by the tribunal known as reconsideration, reopening, or
rehearing
• (see Ontario, section 21.2(1) of SPPA; Quebec, section 154 of Administrative
Justice Act (AJA))
• Common law functus officio rule used to apply; changed by Supreme Court
decision Chandler v Alberta Association of Architects (1989) 2 SCR 848
Appeals
• Permitted only where authorized by statute
• Only a final decision may be appealed
• Party must appeal before applying for judicial review
Judicial Review
• Courts have discretion to accept applications
• Review is sought on the grounds that a tribunal/official exceeded its jurisdiction
• Privative clause attempts to restrict or prevent review by court of
actions/decisions of an agency
• In practice, privative clauses are rarely successful

Who May Appeal or Seek Judicial Review

• Common law determines right to judicial review
• Parties in tribunal proceeding can usually apply
• Interveners may apply at court’s discretion
• For non-tribunals, applicant must generally have a direct and substantial interest
• Traditionally, public interest standing has been limited (see Borowski test and
Downtown Eastside Sex Workers)

Standards of Review
Pre-Dunsmuir standards:
• Correctness: One correct answer to question
• Reasonableness simpliciter: Tribunal’s decision will be accepted if it is based on
a reasonable interpretation of the facts or law
• Patent unreasonableness: Defect is so obvious that no doubt decision was
defective
Dunsmuir and Standards of Review
In 2008, SCC eliminated standard of patent unreasonableness in Dunsmuir v New Brunswick
• Reasonableness: Still applies
• Correctness: Court will not show deference to decision-maker’s reasoning;
follows own analysis
• Patent unreasonableness: Only applies when a statute explicitly states that it
applies

Determining Standard of Review

Pre Dunsmuir: Court used “pragmatic & functional approach”

After Dunsmuir:
• If a standard of review has not already been established, the court must carry out a
standard-of-review analysis
Factors include:
 Presence or absence of privative clause
 Purpose of tribunal
 Nature of question at issue
 Expertise of tribunal in dealing with matter at issue
Role of Statutory Standards of Review

Remedies Available from Court

• Generally, a court that overturns a decision may choose to substitute its own
decision or may return the case to the agency for re-determination
• Courts have latitude to order remedies on appeal
• Court may order agency to make a decision, take action, declare that action taken
has no effect, substitute a decision, or other remedies
• Courts cannot usually award damages on review

Stating a Case
• To avoid making errors in their decisions, a tribunal may state a case by asking a
court to clarify/resolve an important legal question
• Formulated question to court is stated case
• Right to state the case must be provided for in a tribunal’s governing statute;
generally, agencies other than tribunals may not state a case
Review by the Ombudsperson
• Party affected by agency’s decision may submit complaint to federal or provincial
ombudsperson
• Federal ombuds-like officials, including Privacy Commissioner, also receive
complaints
• It is appropriate for ombudsman to scrutinize fairness of a proceeding but less so
the findings of a tribunal

Chapter 16: Enforcement of Tribunal Orders

Authority to Enforce a Tribunal Order

• Enforcement of an order is set out in the tribunal’s governing statute
• In Ontario, section 19 of Statutory Powers Procedures Act (SPPA) contains enforcement
provisions
• In BC, section 54 of Administrative Tribunals Act (ATA) contains enforcement
provisions
Who may apply for enforcement of an order?
• Tribunals rarely enforce their own decisions
• Generally, party who will benefit from the decision must take action to enforce an
order

Enforcement Mechanisms and Remedies

Three main mechanisms for enforcement:
• Treating order as an order of civil court and using civil procedures to obtain
compliance
• Treating violation of order as an offence and prosecuting the violator in a criminal
proceeding
• Treating violations as contempt and initiating contempt proceedings in a superior
court
Civil Court Order
• Party can start enforcement steps immediately after tribunal order given (e.g.,
demand letter)
• Statute may deem tribunal’s order to be a court order; if not, injured party or
tribunal must apply to civil court
Prosecution as an Offence
• A statute may provide that failure to obey a tribunal’s order is an offence
• Party who will benefit from the order, the government, or others, may prosecute
the violator
• Prosecution involves laying charge and proving violation in criminal court
Contempt Proceedings
Availability may arise through:
(1) Violation of the order as a breach of a civil court order
(2) Statutory provisions stating contempt is an available remedy
(3) The inherent common-law right of superior courts to protect the integrity of tribunal
decisions

• Court must have authority to punish for contempt

• Superior courts have inherent authority
• Person may apply to lower (“inferior”) court for remedy for contempt of
tribunal’s order only where court has statutory authority to punish
• Injured party automatically granted standing
• Contempt of tribunal’s order may be civil wrongdoing or a criminal offence

Injunctions, Prohibition Orders, Mandamus, and Declarations

• Injunction is appropriate where person violating tribunal order is not a
government decision-maker
• Order in an application for judicial review called a prohibition or an injunction
• Application for judicial review may result in order of mandamus; where
mandamus is not available, applicant may request a declaration that a
government is violating the order

Canada (Minister of Citizenship and Immigration) v.

Vavilov
A person born in Canada to parents who were undercover Russian spies is a
Canadian citizen, the Supreme Court has ruled. 

Mr. Vavilov was born in Toronto in 1994. In 2010, his parents were arrested for spying in the
United States, where they were living. Mr. Vavilov learned then that his parents had been
undercover Russian spies his whole life. The United States sent the parents back to Russia as
part of a spy exchange.

Mr. Vavilov tried to renew his Canadian passport. He was rejected twice. Officials said he
needed proof he was Canadian, and his birth certificate wasn’t enough. He needed a
certificate of Canadian citizenship. He got this and applied again. But he still didn’t get a
passport. Instead, he got a letter from the Registrar of Citizenship. The Registrar makes the
final decision on who is a Canadian citizen. The letter said giving Mr. Vavilov the certificate of
citizenship was a mistake and that he was not a Canadian citizen.

The Registrar’s decision was based on her view of the Citizenship Act. The general rule is that
anyone born in Canada is a Canadian citizen. But there is an exception. This exception applies
to a child of “a diplomatic or consular officer or other representative or employee in Canada of
a foreign government.” If neither parent is a Canadian citizen or permanent resident, the
child won’t be a citizen. The Registrar said the exception applied in Mr. Vavilov’s case. 

The Registrar relied on a report for her decision. The report was written by a junior analyst.
The analyst noted there was no definition of “other representative or employee in Canada of a
foreign government” in the Act. But she said it could include undercover spies. The analyst
recommended the Registrar cancel Mr. Vavilov’s certificate of citizenship.
Mr. Vavilov asked the Federal Court to review the Registrar’s decision. The Federal Court
ruled for the Registrar. It said the decision was “correct.” The Federal Court of Appeal ruled
for Mr. Vavilov. It said the decision was “unreasonable” and quashed (canceled) it. (To better
understand what “correct” and “unreasonable” mean here, read the “Case Law in Brief” on the
Standard of Review.)

All the judges at the Supreme Court said the Registrar’s decision was “unreasonable” and that
the Federal Court of Appeal was right to quash it. They said Mr. Vavilov was a Canadian
citizen.

The judges said the Registrar didn’t justify her view of the law. They said she didn’t properly
consider lawmakers’ debates, court cases, the text of the Citizenship Act, and international
law. These sources showed that the exception was only meant to apply to people who had
diplomatic “privileges and immunities.”

Citizens have to follow all their country’s rules. For example, Canadian citizens have to pay
Canadian taxes and obey Canadian laws. But people working for foreign governments, like at
embassies or consulates, don’t always have to. They may have “privileges and immunities.”
These are like exceptions to the rules that citizens have to follow. They are meant to make
sure one country can’t meddle in another country’s foreign policy through its officials. The
officials need the privileges and immunities to do their jobs properly. That’s why diplomats
and other foreign representatives to Canada can’t become Canadian citizens. 

The majority said it didn’t matter that Mr. Vavilov’s parents were working for a foreign state.
What mattered was whether they had privileges and immunities. They didn’t. That meant the
exception didn’t apply to Mr. Vavilov.

Normally, if a court finds an administrative decision unreasonable, it will send it back to the
decision-maker to try again. In this case, the majority said it wouldn’t be useful to do that.
Mr. Vavilov had already brought up all these issues and nothing changed the Registrar’s mind.
The judges said that Mr. Vavilov was a Canadian citizen. 

This case was one of three cases known as the “administrative law trilogy.” (The other two
cases, decided in Bell Canada v. Canada (Attorney General), were about Super Bowl
ads.) Vavilov and the Super Bowl ad cases were about very different issues. But they all dealt
with an area of administrative law called “standard of review.” To learn more about this (and
to better understand the Court’s reasons in this case), read the “Case Law in Brief” on the
Standard of Review.