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29th September 2009 Admin Law Map

Administrative Law Map

Part I: Fairness
 

Step 1 : Threshold
-Not hard categories, sliding spectrum, cross threshold.

- All except Charter are about discerning statutory intent; rule of law vs. deference to executive.

A) General Threshold Reqs for DOF? Mantra: Cardinale

i) Public authority?

ii) Making non-legislative decision?

iii) Decision affects the rights, interests or privileges of the C.?

Maybe? B) Common Law DOF?

#1) Nature of the Decision: Legislative or Policy?

- Not about the “who” e.g. Cabinet can employ adjudicative hat. Inuit Tapirisat

- The more adjudicative, the more likely DOF. Knight

- Legislative action of narrow application is quasi-judicial, DOF. Homex

- If legislative decision of general application, but happens to have singular impact, no DOF. *Bona Fide a crucial factor
to distinguish from above. Wells

- If legislation is of narrow application, but unambiguous in removing fairness, no DOF; can’t demand that legislative
process institute hearings, can’t interfere there. Authorson

#2) Nature of the Decision: Removing vs. Denying Benefit.

- No DOF in application for application for benefit, yes for its removal. Webb

- Exception: Application can raise DOF where i) nature of profession makes denial a severe impact and/or ii) reputation
at stake from denial, especially if compounded if w/out reasons. Hutfield

#3) Nature of the Decision: Final vs. Preliminary

- In considering whether a “recommendation” or final, look at reality, not legis formality. Re Abel

- Even at investigatory phase, may have minimal DOF–disclosure. Dairy Producers 

#4) Relationship Between the parties?

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- E.g. in employment context, type of contract important, “at pleasure?” Knight

#5) Legitimate Expectations?

- If promised a procedural entitlement by a public official will give rise to legit expectations, therefore will have C.L.
entitlement to the right. Old St. Boniface

- Mere fact the executive signed an international treaty does not raise legit expectation, needs to be more direct. Baker

- Unsettled, can legit expectation get you across the threshold?

C) Statutory Entitlement to DOF?

- Entitled to procedural rights under empowering statute, SPPA,

SPPA or BoR?

D) S.7 triggered—Charter Right to DOF?

- Must first trigger s.7—life, liberty, or security of the person—once triggered minimum is C.L. & convenience and
expense alone can’t save under s.1. Singh

- Need causal connection between the delay and the harm to trigger s.7. Blencoe

- Psych stress can trigger “security of the person” G.(J.)

- Where s.7 triggered and credibility crucial, p.f.j. may require oral hearing. Singh

Step 2: Degree of Fairness – Baker 5

- Ultimately about discerning statutory intent in the context; place on spectrum. High/Medium/Low

- None determinative, none more important. Baker

- Purpose of fairness, not about accuracy of ultimate finding, but participatory rights that are inherently valuable; ensure
decisions made according to fair and open procedure. Baker

#1) Nature of the Decision: How Judicial?

- Attributes of judicial nature; formality, rules of evidence, and whether the effects are quasi-judicial as in disciplinary
committees (stigma, penalties). Baker

#2) Nature of the Statutory Procedural Scheme?

- Does the scheme lay out statutory appeal right? If not, more procedural rights. Baker

#3) Importance/Effect of the Decision?

- Where s.7 is triggered in the effect, p.f.j. require at least C.L. minimum. Suresh

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#4) Legitimate Expectations?

-A) Reliance: If you have come to expect the right, privilege or interest, this raises expectations of procedural fairness
when losing or being denied it. Baker

-B) Or if government official promised a procedural entitlement, L.E, and hold to promise. Baker

- Fact the executive signed Convention Against Torture, raised L.E. for procedural fairness; reasonable to expect it
would be applied Suresh

- Fact the executive signed Human Rights treaty does not in itself raise L.E. Treaties not biding domestically; + here UN
Human Rights Commission only issues non-binding decisions. Ahani OCA

#5) Deference Owed?

- If statute gives the tribunal the ability to choose its own procedures or if it has expertise to determine which
procedures appropriate in the circs, deference owed. Baker

Step 3: Content of Fairness

-Tension: Participatory rights vs. administrative efficiency.

-Context always relevant.

#1) Does the empowering statute provide for that procedural right?

#2) Statutory Powers and Procedures Act?

- Sets minimum standards; doesn’t apply to all tribunals.

- Provides for some rights to some degree: written hearing (s.5.1), disclosure (s.5.1(3)), notice (s.6), hearings open to
public (s.9), right to counsel (s.10), where oral hearing, can cross-examine (s.10.1), reasons on request(s.17), award of
costs (s.17.1), compiled record (s.20).

#3) S.7 triggered, Charter right to a Procedural Right?

- Where s.7 triggered and credibility crucial, p.f.j. may require oral hearing. Singh

#4) Use C.L. to Fill Gaps – Context still crucial, spectrum important.

Delay: - Test “Inordinate or unreasonable delay” to a point of being oppressive and resulting in taint of proceedings.
Blencoe.

Oral Hearing:            -Where credibility central + huge effect, may be entitled. Khan

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                        - Not when can convey all of the relevant info w/o. Baker

                        - Security Certificates may require partial oral hearing Suresh (implied by qualifiers)

Counsel: – Balance i) seriousness of case + complexity of proceedings; vs. ii) Capacities of C. G.(J.)

                  * May require triggering of s.7. Holding in case depended on trigger.

Disclosure: – Central consideration for C.L. right is whether the disclosure is nec. to know case to      

           meet. Also, effect of decision on party important. Haghighi

Cross-Ex: – The use of hearsay evidence w/o cross may be allowed, but only if give persuasive

         reason. Re B.

Reasons: - Reasons only required upon request. Baker.

                - Must be written, but can be quite informal as long as convey the reasons. Baker

                -  Form-letter may be acceptable, but can’t have been signed before hearing. Xu

               - Even no reasons may be acceptable if able to infer reasons anyways. Liang

               - Contrast: Robust reasons nec. Must include i) findings of fact ii) principle evidence relied 

                 upon for findings iii) reasons must address basic points at issue iv) set out reasoning. Gray

Bias:   - Note: Individual and Institutional. Individual impartiality goes to state of mind of adjudicator. Bell Canada

- Need actual evidence of wrongdoing before able to question adjudicator, mere change of

outcome insufficient. Elis-Don.

            - Test: Reasonable apprehension of bias. That mind not open to the relevant evidence. Baker

            -  Different tribunals require different levels of impartiality (Spectrum). Baker

- Types of bias: See page 36.

            - Different standard at investigatory and adjudicative stages. Newfoundland Telephone

            - No pecuniary bias, no individual impartiality when adjudicator’s group, here Law soc.

Indian Band) has something to gain—too remote to reasonably expect to affect. Pearlman,Matsqui

            - No conflict of interest when Minister acting in best interest of tax-payer. Imperial Oil

            - Institutional: About whether RAB raised in a substantial number of cases because the

institutional structures are not conducive to impartiality. Quebec Inc.

- Mere possibility that same lawyers could give advice to both Prosecutor and Adjudicator,

raises RAB, even if no evidence that this occurring. Quebec Inc.

- But if statute expressly allows duplicitous function, can’t invalidate. Quebec Inc.

- Guidelines – go to state of mindà Can’t strike down guidelines when done under clear stat. power & BoR can’t
overcome unless violates C.L. Bell Canada.

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Independence: - Note: Individual & Institutional. Whether adjudicators free from outside

pressures. Bell Canada

- Different contexts demand diff. levels of independence, where personal security at stake, higher level
required than when mere pecuniary interests at stake. Matsqui

-“Volente Standards” applicable. Factors for independence: i) Security of tenure,

ii) Financial independence, & iii) Executive control (control docket). Matsqui.

-“Volente Standards” level of adherence required depends on i) nature of tribunal

ii) interests at stake; iii) other indices of independence such as oaths. Regie

- Where statute is crystal clear that adjudicators serve at pleasure, can’t invalidate; only assume that legislature intended
to comply with C.L. when unclear. Oceanport

Part II: Standard of Review

- Tensions: Getting it right vs. Administrative efficiency, expertise, & public policy non-interference.

 
Constitutional Minimum

- As per s.96 of Constitution, Superior Court must be able to J.R. any state action on juris. Crevier

Pragmatic and Functional Approach – Dr. Q 5

- Always apply and apply both to judicial review and statutory appeal routes. Dr. Q

- Debate whether diff. standard for each issue before review. Minority Berrie

#1) Statutory Mechanism of Appeal:

- Is there any indication of the legislative intent to have the case reviewed on merits? Dr. Q

- Privative clause says no, wide statutory appeal says yes. Dr. Q

- Privative clause no good where decision P.U.; Parliament can’t give power to decide P.U. CUPE

- There’s a difference between full privative and partial privative clauses.  Former sort communicate that the decision is
final and conclusive. Where some avenue of review open, partial. Pushpanatham

#2) Expertise:

- Relative to the court, and on particular issue in question. Dr. Q

- Expertise the most important factor. Southam

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- Tribs can’t claim expertise over courts on questions of law; esp. human rights law

Mossop; Zurich Insurance

- No expertise over courts in interpreting international law treaties. Pushpanatham

- 5yr. term indicates expertise. Barrie.

- Training, diploma requisites go to expertise. Dr. Q

- Consider whether asked for external legal opinion on issue. *Sossin dislikes considering this as raises possibility that
expertise of particular adjudicator will be considered. Trinity Western

- Elected boards: Expertise on community views & in areas of council intra vires power. Chamberlain

- Elected boards no expertise on human rights or on determining own jurisdiction Chamberlain; Nanaimo

- Fact Minister final-decision maker goes to deference to expertise as policy-maker. Baker

#3) Purpose of Statute:

- Step back and ask why law on the books; would J.R. on merits be contrary to this? Dr. Q

- More deference if the legislature is trying to balance policy objectives or the interests of various groups; less deference
if about determining rights of individuals as against state. Dr. Q; Pushpanatham

- Regulative purpose pushes to deference. Southam

- Purpose is adjudicative, pushes to deference. Barrie

- Discretionary power bound by the legislative intent of its exercise and g. faith exercise. Roncarelli

#4) Nature of Problem at Issue:

- What question is seeking review; law, fact, mixed, Charter, international law? Dr. Q

- Questions of fact, (*default akin to P.U) “palpable and overriding error.” Zurich Insurance

- Where issue of jurisdiction, PFA will always result in “Correctness.”

- Principle: PFA will generally result in “Correctness” where human rights question of law. Mossop

- Where question about determining minimum human rights, little deference. Pushpanatham.

- Where the administrative decision invokes or relates to the Charter, “Correctness” Trinity Western.

- Discretionary Power: Indicated by “may” and “in the opinion of the Minister” 

- Strict “correctness” in determining scope of discretion, as is a jurisdictional issue. Nanaimo

- Contrast: should be given deference on determining margin of discretion w/in reason. Baker

- Deference on intra vires discretionary power use. Baker

- Default position for intra vires discretionary power is P.U. standard. Suresh

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Applying Resulting Standard of Review

- Only three standards; no hi/low w/in them. Ryan

A) Patent Unreasonableness

- Def.: Either got the statutory interpretation completely wrong such that answered question not put before it, or the
interpretation is not rationally supportable, such that demands intervention. CUPE

- P.U. standard: Where no room for reasonable disagreement with final decision reached. CUPE

- The defect is apparent on its face, if requires much searching, reasonableness simpliciter. CUPE

- Goes to jurisdiction, lose when decision P.U. CUPE

- Effect of privative clause? Parliament can not give trib. power to make P.U. decisions. CUPE

- Ordinarily, only look to the result à where clearly wrong on its face. Southam.

- Under P.U. standard, can not re-weigh the factors, but can consider whether all relevant factors considered. Suresh

- But court in CUPE looked in detail at record, including out of court statements to press.

The minority criticised this level of scrutiny.

B) Reasonableness Simpliciter

- Research, test, and probe to find problem. Southam

- Determination that insufficient weight for important factors, suff. to find reversible error; so able to reweigh factors
used in decision. Baker

C) Correctness

- Question of whether can ignore the tribunal decision altogether or whether have to look for and find some error before
can overturn. Dickison

Applying P.U. Standard to Discretionary Decision Violating Charter

- Two track approach: i) consider whether discretionary power itself violates Charter or whether possible to exercise
without violation. ii) If discretion per se not violation, then challenge the particular decision. Slaight

-Can’t challenge the guidelines, as not law, not binding. Little Sisters.

Minority wanted to be able to attack discretion for not providing safeguards against misuse.

- Middle ground; policy of denying deaf kids interpreters found to as a whole violate s.15. Elridge

Remedy: Ordered to change policy, rather than just provide claimant with interpreter.

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- Go to Charter first, then C.L. b/c P.U. decision can never be saved under s.1. Slaight.

 
 

Part III: Other Potential Issues

 

Tribunals’ Authority to Consider Charter

- Test: 1) Tribunal have power to decide q. of law? Yesà presume can consider Charter, unless:

2) Rebutted by a) explicit preclusion in statute, or b) by its necessary implication. Martin

- Ditto the Constitution, as no reason to differentiate. Paul

- Remedy: Can’t strike down legislation. And, no binding precedent even on trib. Paul

Allow Collateral Attack?

- Balance interests in not creating incentive to ignore judgments vs. imposing huge penalty while precluding a defence.
Consolidated Mayburn

- Test: See page76.

Posted 29th September 2009 by Canadian Criminal Law

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