CHAPTER 1: Introduction to the Legal System

Rule of Law:
1. The state’s – whether through governments, courts, or tribunals – ability to
control the conduct of citizens is limited by the supreme law of the land called
the Constitution.
2. The rule of law states that no one is above the law, that everyone is subject to
the law, including state actors.
3. The rule of law outlaws’ arbitrariness – by restricting powers of government
and by setting out strict rules for the passage, application, and enforcement of
law.
Division of Power: first way to strike down law as unconstitutional
1. The Constitution Act 1867 allocates law making power to the federal and
provincial parliaments on the basis of subject matter.
2. Municipalities and territories do not receive any law-making authority under
the Canadian Constitution. However, they are granted such authority by the
higher levels of government.
3. Remember, a government must pass law within their areas of jurisdiction,
otherwise they are invalid.
4. For example, provincial governments are not allowed to make law in the area
of criminal law and procedure (as this is an area in the sole and exclusive
jurisdiction of the federal government as per section 91(27) of the Constitution
Act, 1867).
Charter of Rights: second way to strike down law as unconstitutional
5. The Charter sets out a list of fundamental freedoms, political or democratic
rights, mobility rights, and equality rights.
6. If a law violates a Charter right (e.g., freedom of expression), to an extent that
cannot be justified in a free and democratic society, this means that the law is
constitutionally invalid and can be rendered of no legal effect.
7. Charter rights are not absolute, however. For example, hate speech has been
found to be a reasonable limit on free speech under section 1 of the Charter.
Administrative law was designed to ensure that tribunals do not exceed their
adjudicative powers, as conferred by the enabling statute.
Doctrine of Paramountcy – paramountcy is a constitutional law doctrine that
stipulates that where valid federal laws conflict with valid provincial laws, the
federal laws prevail.
Administrative law is a branch of public law that regulates the executive
branch.
Vriend v. Alberta, SCC ordered that the words “sexual orientation" be read
into the Alberta human rights statute to keep that statute in accord with
the Charter’s equality provisions.
Section 91 of the Constitution Act, 1867
Passage of law over subject matters of national concern that affect the whole
country are given to the federal Parliament:
Criminal activity.
Monetary policy.
Foreign relations.
National defence.
Interprovincial and international trade and commerce.
Section 92 of the Constitution Act, 1867:
Matters of a local nature and private nature are given to provincial Parliaments:
a. The regulation of the professions.
b. The creation of local infrastructure such as roads.
c. Water treatment plants.
d. Sewer systems.
e. Land use planning.
f. Insurance.
g. Sale of Goods.

CHAPTER 2: Administrative Tribunals and Agencies

Administrative law requires there to be no political interference in Tribunal

decision-making unless the interference is authorized by the enabling statute
Agencies, boards and commissions – ABCs
Types of Administrative Agencies:
1. Advisory agencies
- These agencies provide advice to a ministry to assist in the development of
policy or the delivery of programs (e.g., the Livestock Medicines Advisory
Committee)
2. Operational service agencies
These agencies deliver goods or services to the public usually at a low fee (or no
fee)
An example is the Ontario Marketing Partnership Corporation who publishes an
Ontario Summer Magazine to Ontarians at no cost (provides Ontarians with
information as to upcoming festivals and events in Ontario) + Legal Aid Ontario.
3. Operational enterprises
- These agencies sell goods or services to the public in a commercial manner (e.g.,
LCBO, the Ontario Lottery and Gaming Corporation,)
4. Regulatory agencies
- These agencies make independent decisions and exercise autonomous authority
over some area of human activity (e.g., Workplace Safety and Insurance Board,
Ontario Human Rights Commission, Ontario Film Review Board)
5. Adjudicative agencies (Tribunals)
-These agencies make independent decisions, similar to those of courts to decide
on some of our most important rights and entitlements (e.g., Ontario Human
Rights Tribunal, Local Planning Appeal Tribunal, the License Appeal Tribunal)
6. Crown foundations
- These agencies solicit, manage and distribute donations of money or other
assets to support public organizations such as art galleries. (Examples include
the Art Gallery of Ontario Crown Foundation and the University of Toronto
Foundation)
7. Trust agencies
- These agencies administer funds or other assets for beneficiaries under a
statute (Ontario Public Service Pension Board)
8. Watchdog agencies
– such as the Ontario ombudsperson and Royal commissions of inquiry

Agencies may have to follow one set of rules when carrying out one function and
another set when carrying out another function
Sometimes the functions of an administrative tribunal overlap (e.g., many
tribunals perform a hearing function and a re-consideration of the hearing
decision function)

Reasons why administrative agencies are formed by the government:

 To demonstrate independence
 To reduce the size, workload, or budget of a department
 To reduce conflicts of interest
 To provide flexibility in human resources and to 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
Key requirements of Multipurpose Agencies are as follows:
1. Separation of Functions
2. No Delegation of Authority
Common powers and duties of a Tribunal:
1. To hold hearings (various formats are possible depending on the tribunal).
2. To require witnesses to attend and give evidence at a hearing (via the issuance
of summonses).
3. To receive relevant evidence.
4. To decide a dispute between parties in favour of one party or the other, on a
final basis.
Difference between the Tribunals and the Courts:
 Tribunal members are not required to follow the principle of stare decisis.
Superior court judges are strictly bound by the doctrine of precedent.
 Looser rules of evidence in Tribunal hearings.
 Tribunals can sometimes investigate and adjudicate the same case.
 Tribunals can sometimes require little or no advanced disclosure of
evidence.
 More allowance for participation by the public in Tribunal proceedings.
In the adversarial system, the parties themselves (and their legal
representatives) determine what evidence is brought before the tribunal, and the
tribunal is not permitted to actively seek out evidence beyond that presented by
the parties.
In contrast to the adversarial system, the inquisitorial system, which is often
found in Europe, requires the tribunal to conduct the investigation and collect the
evidence. Adjudicators have much greater latitude to examine and cross-examine
the parties and witnesses, and may call witnesses on their own initiative.

“The role of adjudicators in an adversarial system is quite limited. Adjudicators do

not investigate. They do not introduce evidence. They do not cross-examine. They
do not advocate. Adjudicators act like neutral sponges that absorb all of the
evidence and submissions. Then, at the end of the hearing, the sponge is squeezed
and out flows the truth and findings.”
Steinecke Maciura LeBlanc,
“The Adversarial System,” Grey Areas (February 2006

If a tribunal’s enabling legislation contains one or more of the following

provisions, it is likely that the tribunal has some leeway to follow an inquisitorial
process:
 1. the statute refers to the decision-making process as an “inquiry” rather than
a “hearing”;
2. the statute says the tribunal “may” hold a hearing or inquiry rather than
“shall” hold one;
3. the statute gives the tribunal power to collect evidence independently of the
parties;
4. the statute requires the tribunal to determine what constitutes the public
interest or is necessary to protect public health or ensure public safety,
rather than to resolve a dispute between individuals about property or
money; or
5. the statute requires that the adjudicators have special expertise in the
subject matter.

CHAPTER 3: The Foundations of Administrative Law

Rules of fairness in decision-making developed to include all administrative

agency decisions that affect an individual’s rights, privileges, or interests (whether
or not the agency could be said to exercising a “court-like judicial function”
strictly affecting individual rights).
The principle of procedural fairness now applies to all kinds of administrative
decisions made by ABCs

Whenever a government body makes a decision that affects a person’s interests

more substantially than it affects the general public, that body has two fairness
obligations:
Obligation #1 - a duty to notify the person of the intended decision and the
reasons for it (if the government decision is unfavourable, the person must be
given an opportunity to challenge it).
Obligation #2 - a duty to provide an impartial decision maker.

Implied Powers Doctrine: the common law rule that agencies have whatever
additional powers are necessarily incidental to their explicit powers; a court will
find these powers by necessary implication only where the jurisdiction sought is
necessary to accomplish the objectives of the legislative scheme and is essential
to the body fulfilling its mandate; see necessary implication.
Inherent Powers Doctrine: the common law rule that an agency has an inherent
power to utilize a procedure that is reasonably necessary to carry out its statutory
functions even if that power is not explicitly set out in a statute.
Six (6) fundamental principles of administrative law:
Principle #1 – public bodies who exercise powers granted by statute must stay
within their assigned jurisdiction.
Principle #2 – requirement to exercise discretion in a fair manner.
Principle #3 – procedural fairness.
Principle #4 – no sub-delegation of authority.
Principle #5 – subordinate legislation must conform to the empowering statute
under which it is made.
Principle #6 – Judicial Review

A successful challenge to the vires of regulations requires that they be shown to be

inconsistent with the objective of the enabling statute or the scope of the statutory
mandate. … Regulations benefit from a presumption of validity. … This
presumption has two aspects: it places the burden on challengers to demonstrate
the invalidity of regulations, rather than on regulatory bodies to justify them … ;
and it favours an interpretative approach that reconciles the regulation with its
enabling statute so that, where possible, the regulation is construed in a manner
which renders it intra vires. … Both the challenged regulation and the enabling
statute should be interpreted using a “broad and purposive approach … consistent
with this Court’s approach to statutory interpretation generally” … This inquiry
does not involve assessing the policy merits of the regulations to determine whether
they are “necessary, wise, or effective in practice.”
Katz Group Canada Inc v Ontario (Health and Long Term Care),
2013 SCC 64 at paras 24-27

Chapter 4: The Charter and Its Relationship to Administrative Law

The Charter requires that certain procedures be followed in certain tribunal

proceedings and tribunal hearings; a failure to follow these procedures can result
in a Tribunal decision being quashed on judicial review.
For example, under s. 7 of the Charter, substantial disclosure must be given by
the Crown to a person facing deportation at the Immigration and Refugee Board,
to avoid a Charter breach.
To determine whether the Charter applies to the decision- making-body-at-
issue:
1. Consider the extent to which the government exercises control over the
body, and
2. Consider the extent to which the body is carrying out functions that are
essentially “governmental” in nature.

Limitations of the charter:

Section 1 of the Charter allows for certain charter rights and freedoms to be
limited by government as can be “demonstrably justified in a free and democratic
society”. Such as the presumption of innocence or the right not to be arbitrarily
detained by police.
Section 1 test that needs to be met:
1. Prescribed by law.
2. Sufficiently important objective.
3. Rational connection.
4. Minimal impairment.
5. Benefits must outweigh costs.
The Notwithstanding clause:
Federal and provincial parliaments can limit certain Charters rights through the
exercise of the notwithstanding clause (section 2 and sections 7 through 15 of the
Charter may be limited)
The notwithstanding clause requires the government to include language in the
statute that expressly states that the provisions of the Act operate
“notwithstanding” the Charter breach.
The notwithstanding clause must be renewed every five years.

Remedies for the charter infringement:

Section 24 of the Charter
 This section allows for damages for the harm suffered by the Charter
applicant due to the Charter breach.
 This section allows for the exclusion of evidence from a Tribunal hearing.
 This section allows for the awarding of costs to the Charter applicant.
Section 52(1) of C.A. – under this subsection, a court of competent jurisdiction
has the authority to strike down laws that breach the Charter:

R v Oakes – The Oakes test – test whether the infringement of a charter right is
justified or not.

Chapter 5: Human Rights Codes and Other Quasi-Constitutional Laws

Quasi Constitutional Laws:

General Definition and Attributes
1. These are laws that are above ordinary administrative law (be it statute law
or common law) but below the constitution.
 2. They are considered “quasi-constitutional” because they embody important
rights and freedoms universally recognized throughout the free world.
3. Unlike constitutional law, they do not always override other laws that
conflict with them – but most of the time they do.
Quasi-constitutional law often regulates the conduct of individuals and
businesses in addition to that of government (e.g., the Ontario Human Rights
Code applies to private sector disputes not just public sector disputes)

Examples of quasi-constitutional laws:

1. Common law principle of solicitor-client privilege.
2. Human rights laws (the federal gov’t and all Canadian provinces and
territories have human rights statutes).
3. Canadian Bill of Rights.
4. Freedom of Information and Protection of Privacy Statutes.
5. Official Language Laws.

In the event of conflict, quasi-constitutional laws will prevail over most other
statutes. This is helped by a rule of statutory interpretation that states that if
there are two ways to interpret a statute, one which would be consistent with the
quasi-constitutional law and one which would not be, the interpretation that is
consistent with the quasi-constitutional law must prevail.
[Class Notes: Human rights in social areas are usually covered.
Overqualification is not covered, political views (discrimination) are not
covered.
Encourages employment equity and wages equity for the vulnerable groups of
society (Women, Indigenous people).
Employment equity and rules are not provincial (they were, aren’t now).
(Employment equity act)
Ex. BC – Record of convictions are based on charges rather than convictions,
VS Ontario – Record of convictions means record.]

“Anyone can live without voting, but it is extremely difficult to live without a job or
without decent accommodation. [A] denial of equal access to jobs, homes and public
accommodation … seriously affects a person’s dignity, self-respect and ability to
provide for himself. This is why in the last two or three decades it has been
increasingly recognized on this continent that a “shield” against government is not
sufficient, what is required is a “sword” against private individuals and groups
who practise discrimination.”
 Professor Walter Tarnopolsky,
quoted in Judith Keene, Human Rights in Ontario 1st ed (Scarborough, Ont:
Carswell, 1983) at v

Types of discrimination covered under human rights law:

1. Direct discrimination
- Where a standard is discriminatory on its face
- For example, a landlord who has a general policy of not renting to people
with kids

2. Adverse effect discrimination

- Where an individual imposes an apparently neutral requirement that
disproportionately affects a particular group in a discriminatory way.
Examples of job requirements that could amount to adverse effect discrimination
1. Being clean shaven for a job (this job requirement would have a negative
impact on a group protected by HR legislation, namely Sikhs)
2. Require firefighter candidate to run 2.5km in 11 minutes or less (this job
requirement would have a negative impact on a group protected by HR
legislation, namely women)
An employer’s defence to direct discrimination: bona fide occupational
requirement (BFOR)
Examples of BFORs
1. Sufficient eyesight is a necessary job requirement for a truck driver job (but
not necessarily for the job of receptionist).
2. In safety-related jobs, a job requirement that employees not use drugs or
alcohol that “impairs” when operating heavy equipment.
The Meiorin case - whether the discrimination was intentional or unintentional,
the standard causing the discrimination is justified only if the employer
establishes three-part Meiorin test.
Remedies for discrimination and harassment under the Code:
1. Monetary damages remedies – monetary damages can be awarded for injury
to dignity and self-respect.
2. Non-monetary remedies – letters of apology, reinstatement of employment,
the re-opening of a job competition, etc. (Non-monetary remedies cannot be
awarded by civil court and only by the Human Rights Tribunal of Ontario.)
3. New remedies – a claimant can now pursue damages for a human rights
violation in the civil courts, if the violation is necessary part of a wrongful
dismissal action.
 CHAPTER 6: Procedural Fairness: The Right to Be Heard

The right to be heard doesn’t necessarily include the right to an oral hearing – in
other words, in the absence of legislation, there is no absolute obligation upon an
administrative tribunal to hold an oral hearing in order to comply with the rules
of natural justice (which require a fair hearing and an unbiased decision maker)
In Baker v. Canada, a leading case on procedural fairness, the fact that the
applicant was not provided with an “oral hearing” did not violate the principle of
procedural fairness. The opportunity for Baker to produce extensive written
documentation in support of her application for permanent residency on
humanitarian and compassionate grounds constituted a sufficient opportunity to
be heard and to respond to the government’s position.
Procedural fairness is “contextual” – Baker v Canada – in determining the
appropriate level of fairness and the specific procedures that must be followed by
a tribunal or agency, one should consider:
1. The nature of the decision.
2. The nature of the statutory scheme.
3. The importance of the decision to the affected person.
4. The extent to which the person affected has legitimate expectations of a
particular process.
5. The extent to which the legislature intended the decision-maker to have
discretion to choose its own procedure.
6. Whether two parties oppose each other and whether the credibility of witnesses
is seriously in issue; if so, an oral hearing may be required.

Sources of Procedural Fairness Rules:

1. Enabling Statutes
2. A Tribunal’s Rules of Practice
3. Statutory Powers Procedure Act (SPPA)
4. Principle Fairness – has two main pillars:
1. The right to be heard
2. The right to an unbiased decision maker
There is a decision-making-ladder when it comes to the level of procedural
fairness required from an administrative decision-maker:
Bottom rung- administrative decisions involving the issuance of a permit by
a government body can follow informal procedures.
Middle rung- administrative decisions involving a relatively informal review
conducted by a different government official of a first government official’s
decision.
 Highest rung- administrative decisions involving an appeal to an
independent tribunal from a government decision will require rigorous
procedures to be followed

Components of common law right to be heard:

A. The right to notice of the proceeding
B. The requirement for an investigator to retain evidence to ensure a fair
hearing
C. A party’s right to be present [in the hearing room]
D. The right to be represented
E. The right to present evidence (to establish the facts of a party’s case)
F. The right to cross-examine
G. The requirement that the person/adjudicator who hears must decide
H. The requirement to base a Tribunal’s decision solely on the evidence
I. The right to be heard within a reasonable time and to receive a decision
without undue delay
J. The requirement to give reasons for the decision

May v Ferndale Institution – The Supreme Court of Canada expanded the

common law requirement for disclosure. The court held that the duty of
procedural fairness generally requires a statutory decision-maker to disclose the
information that he or she relied on in reaching a decision.