Introduction to Administrative Law

Broad Overview - In essence, administrative law concerns the "supervision" by courts of decision-making made
pursuant to statute or the royal prerogative
- Subset of constitutional law, but with a wider reach
- Balance between respective legislative intent with Rule of Law (“RoL”)
- There was a Rise post-WWII in the regulatory state and admin decision makers (ADMs)
- Two branches: Substantive Review and Procedural Fairness
- Separation of powers between legisl, judic, exec.
- Tribunal decisions can be reviewed through either statutory right of appeal or discretionary
judicial review
Statutory Right of - Does the tribunal’s enabling statute provide for a right of appeal? If no, only judicial review
Appeal available
- Scope of review can be determined by statute: some permit complete de novo review while
others are limited to issues of law
- Appeal may be available as of right, or leave required
Explaining Judicial - Part of the inherent jurisdiction of superior courts granted by ss. 96-101 of Constitution Act,
Review 1867
- Not an explicit guarantee
- Federal Courts Act provides power for Federal Courts
- Is judicial review available? Threshold questions to ask:
1. Is the tribunal a public body?
2. Does the party have standing to challenge a tribunal decision?
3. What is the appropriate court to apply to?
4. Have any deadlines been missed?
5. Has a party exhausted all other adequate means of recourse?
What About Federal - Created by federal statute, their power comes from s. 101 of Constitution Act, 1867
Courts? - Federal Court of Canada (FCC) and Federal Court of Appeal (FCA)
o FCC can hear civil claims brought against federal government, FCA hears appeals from
FCC and other federal judicial bodies (Tax Court and Military Court)
- Section 18 of the Federal Courts Act specifies that, subject to s. 28, the FCC has "exclusive
original jurisdiction" to issue writs against any federal board or commission, and similar
proceedings brought against the AG of Canada
- Several administrative tribunals in s. 28 of the Federal Courts Act for whom the FCA is the court
of first instance on judicial review
Re Residential - 3 step test to determine if ADM is violating s. 96 by acting like a superior court
Tenancies Act 1981 SCC o Historical inquiry
o Judicial versus legislative or administrative power
o Contemporary character
Crevier v Quebec 1981 - Quebec established apex professional tribunal that heard disputes from multiple professions,
SCC included restrictive privative clause
- Problem: This is too much like a court
- The “sole and central” feature of a professional tribunal is to function as an appellate court
- Privative/ preclusive clauses CANNOT oust judicial review on questions of jurisdiction
Remedies - Most important basis for refusing to grant a remedy is that adequate alternative remedies are
available
- Delay in bringing an application may result in a refusal to grant remedy
- Does the party making application come with clean hands?
- One remedy can be stay of enforcement; OR
- A number of prerogative writs can be issued
o Certiorari, Prohibition, Mandamus, Declaration, Habeas Corpus, Que warranto

What About Legal Theory?

Note: A significant lack of consensus on what the Rule of Law (ROL) actually is. Summarized below are different
competing theories and their appearances in caselaw
Instituting the RoL - Several features inform a basic conception about the RoL
o Legal institutions can be clearly differentiated from other institutions (doctrine of the
separation of powers)
o Legal doctrine forms the basis of knowledge in our legal institutions as opposed to
political will or individual judgement
o Law is contained in a system comprised of an organic, evolving body of principles and
rules that strives for coherence
o Legal institutions are staffed by individuals with specialized training
- Four essential principles guaranteed to legal subjects
o That all persons will be considered formally equal
o Public standards will guide the creation, enactment, revision, and enforcement of all
laws
o The government and the legal system will treat individuals fairly
o An existing legal system enables access to legal processes for all persons in order to
resolve complains (access to justice)
AV Dicey’s version is the - Three central features: (1) Supremacy of regular law over arbitrary power (2) Formal equality
most generative of the before the law where state officials are also bound (3) The constitution is a by product of the
RoL common law
- Very formalist, separation of powers, independent judiciary, but no intrinsic moral value within
the system
- Judges are trusted sources of authority and ultimate arbiters. They know best
- Administrative bodies seen with extreme disgust, Courts don’t need to defer to them
The Substantive - ROL as a vision for social justice, and that it must be imbued with moral content
Approach - Illustrated in Roncarelli v Duplessis 1959 SCC
o Majority decision says the wrong person took this decision. Rand J. says any decision,
regardless of who takes it, should not be discriminatory
o Even if there is complete discretion, that discretion is constrained by the rule of law
which implies anti-discriminatory norms
Canadian View as - Law is supreme over everyone
espoused by the SCC - The creation and maintenance of a positive order of laws
- The regulation of the relationship between state and individual
- Linked to principles of judicial independence and access to justice
- Reference re Manitoba Language Rights 1985 SCC
o SCC invoked the ROL to conclude that the Manitoba government's repeated failure to
respect the mandatory requirement of bilingual enactment of provincial laws rendered
all subsequent unilingual legislation invalid
o ROL principle also justified the creation of a new remedy - the delayed declaration of
invalidity - which the court used to maintain the existence of the unconstitutional legal
order, while giving the province time to comply by re-enacting all offending legislation
- Importance placed on avoiding arbitrariness (PHS Community Services)
o SCC found minister of health acted arbitrarily, and used the remedy of mandamus to
order the minister to grant an exemption
o Note: Roncarelli also had several instances of arbitrary executive power
Minimalist Version - Recall Imperial Tobacco 2005 SCC
o Tobacco companies arguing it offends ROL for government to twist the rules of
evidence in their favour and target industry via legislation
o SCC rejected this argument and sided with government; the RoL does not require
legislation to ensure a fair civil trial or avoid giving the government advantages
Sauve v Canada 2002 - A challenge to legislation involving prisoner right to vote. Government cited RoL; voting
SCC disenfranchisement served as punitive measure for criminals
- Majority rejected government argument
o No one is learning more civic responsibility through losing their right to vote
o Actually decreases respect for the ROL
o Connected ROL to democracy
- Dissenting judgement:
o Argued it was a matter of political and social philosophy and required deference
o Court cannot import their own moral values in place of the legislature's
 Traditional and New
Critiques
Critiques
Administrative Law’s
Failure Towards
Indigenous Peoples
Lack of Access to Justice
1. Functionalist Critique: class based critique that says judges are elite actors that want to preserve
their own interests. Most associated with John Willis. Government is the good guy, the
adjudicator
2. New Minimalist Model: Western governments reigning in civil liberties in the name of national
security, decimating procedural fairness and limiting opportunities for PF (Khadr)
- Dylan Lino: ROL is a term brought forward by settler colonialism. To AV Dicey, ROL is a term
encapsulating British sensibilities
- Can the RoL have integrity when it’s so connected to Imperialism and Colonialism?
- Societies that were seen as more feminine, childlike, barbaric, etc. considered not human
compared to a masculine, structured British society and this is why exporting the ROL made
sense as a "gift" to other society; the benevolent thing to do
- On the flip side, can we use it in a positive way to affirm Indigenous legal orders?
- Scope of the Indian Act continues to be narrow. Outside of this act there are a handful of stand-
alone federal laws on specific topics relating to First Nations
- For admin law purposes, there is an absence of legislation with only policy manuals and
discretion operating in lieu
- Both the federal and provincial governments have historically tried to delegate FN responsibility
to each other. This “regulation” through policy manuals was supposed to be temp, now perm.
- An ad hoc system that is at complete odds with the RoL and Principle of Legality
- Government officials have a lot of discretion, creating opportunities for abuse of power
- Funding a judicial review, fears of retaliation, limited avenues for redress due to lack of
legislation, etc.
- Admin law remedies can be ineffective in addressing the true scope of the dispute

Analyzing Baker and TWU

The Baker case is great to examine an administrative law decision implicating both substantive review and procedural
fairness. TWU is a more complex dive into a substantive review issue

Baker v Canada 1999 - Mavis Baker lived illegally in Canada, ordered deported, brought application for PR under the
SCC Immigration Act, officer rejected app without giving reasons Baker, applied for judicial review of
this decision
- SCC held that procedural fairness required the ADM to consider the rights of Baker’s children
o Decision-makers must be "reasonable" and Ministerial decisions in this case should
follow values that are in international human rights law
Approach Used in This Case
- The Criteria to Determine Standard of Review is the “Pragmatic and Functional Approach”
(PFA) (SUBSTANTIVE REVIEW)
1. Presence or absence of a privative clause
2. Expertise of the decision-maker
3. The purpose of the act as a whole and the particular provisions
4. The nature of the problem
Balance these factors to arrive at a SOR (then correctness, reasonableness simpliciter, patent
unreasonableness). Then apply the selected SOR
- 5 factor test in determining the content of the duty of fairness (PROCEDURAL FAIRNESS)
1. Nature of the decision being made and process followed
2. Nature of the statutory scheme and the term of the statute
3. Importance of the decision to the individual or individuals affected
4. Legitimate expectations of the person challenging the decision
5. The choices of procedure made by the agency itself
- Baker prevailed on SR grounds because officer’s reasons weren’t reasonable; and prevailed on
PF grounds because of bias the officer showed reasonable bias towards Caribbean Immigrants
Law Society of BC V - TWU wants to open a law school that requires its students and faculty to adhere to a religiously
TWU 2010 SCC based code of conduct that is homophobic in nature, LSBC doesn’t recognize the school
- SCC rules that LSBC's decision was reasonable as it was a proportionate balance between the
limitation on the Charter right at issue and the statutory objectives governing the LSBC
 1. Was Freedom of Religion Engaged? – Yes, LSBC has interfered with TWU's ability to maintain an
approved law school defined by their own religious practices, which limits the right of
community members
2. What are the Overlapping Charter Protections? – Free expressions, free associations, and
equality
3. Is there a Proportionate Balancing? – Yes, LSBC didn't deny the school itself, they denied the
mandatory Covenant which TWU isn't willing to compromise on. The decision advanced relevant
statutory objectives
Dissent (Cote and Brown JJ)
- Not a proportionate balance. The decision not to approve based on the Covenant (code of
conduct protected by provincial human rights legislation) is a profound interference with
religious freedom. The LSBC's interference violated the state's duty of neutrality and profoundly
interfered with religious freedom
Application to Admin Law
- LSBC is the ADM. No significant PF issues, but a couple substantive ones: Fettering discretion &
the review of actual decision made not to approve
- Challenging an administrative decision made under the Act

Procedural Fairness
Key Notes

 Baker is the leading case

 Standard of Review is (implicitly) correctness
 Examines procedures and not their impact on the substance
 The object of inquiry is the Duty of Fairness: Is it implicated and, if so, what is the content?
 PF is a common law doctrine, but can be legislatively altered if constitutional.
 Recall 5 Baker factors from above. Factors non-exhaustive and test is flexible

History  Nicholson was the start of “procedural fairness” in Canada. The principle was affirmed and
clarified in Cardinal and Indian Head School Division
 Purpose of PF: Have fairness, openness, while respecting ADM’s institutional needs
 In Mavi: SCC affirmed and identified it as central to the “just exercise of power” (para 42)
The PF Spectrum
Minimal PF ------------------------------How Much PF----------------------------- Fuller PF

General decision Apply Baker factors Similar to judicial DM

No statutory requirement Consider if Charter s. 7 applies Statutory Indicators
“Purely investigative” Final decision/no appeal
PF provided at other stages LED engaged
Lower impact on indiv. Very significant impact
Legislative and General  Decisions otherwise general in their application, affecting a broad spectrum of public; but
Decisions (LGD) remember, the decision-maker must be a public body
 Typically based on public interest, public morality/ethics, politics, public convenience,
economics, international obligations, social justice
 PF does not normally attach, but if it is targeted at a particular person, then the decision is
legislative in form, but not in substance and PF will likely attach (See Homex below)
 Simply because a small, identifiable subset of the population is affected by a municipal decision
does not necessarily make it targeted, but if a non-targeted (municipal) decision overwhelmingly
affects one person more than others, PF may attach
Non-dispositive  The more final and determinative a decision, the greater the claim for PF. Yet, most decisions,
Decisions even preliminary ones, will attract PF.
 A preliminary decision will likely require PF where:
1. Important issue at stake
2. Proximity or close nexus between non-final decision and the final decision to which PF would
attach in the sense that the non-final decision “effectively determines” the final one
Rights and Privileges  Most rights will meet threshold
  Whether or not privileges and interests pass the threshold depend heavily on the importance of
that privilege or interest, whether it is an application, forfeiture or expectation case (revocation
seen as more serious than application) and whether there is a slur involved on a person’s
character. “Pure” application cases (i.e., not serious, no slur/stigma) will typically not attract PF
if there aren’t any special circumstances
Section 35 and PF  Baker established common law right to PF, what about constitutional right?
 Recall the unwritten constitutional principle of the Honour of the Crown, which in turn
generated the duty to consult (Haida Nation)
 Duty to consult parallels the duty of procedural fairness
 Clyde River explored the relationship between these principles and PF
o A controversial decision, SCC said the ADM can do both the consultation and the
assessment of the consultation
o SCC says there is no conflict of interest because not only does the NEB have to be an
agent of the Crown, they have to act in the public interest, which can be opposed to
the Crown
o No reference to Baker; a distancing is now taking place
o An ADM can consider constitutional questions
Wall v Highwood  Realtor expelled from Congregation by Judicial Committee
Congregation of  He was repenting for drinking, told he was not sufficiently repentant, now everyone else has to
Jehovah’s Witnesses shun him
2016 ABCA and 2018  Applies for JR and wins at trial and ABCA, SCC allows Congregation’s appeal on 3 grounds: (1) JR
SCC is about legality of state action/public power; (2) no free-standing right to PF; and (3)
justiciability - religious matters are not justiciable.
 Note: Paul Daly criticizes the SCC’s decision for failing to articulate a workable distinction
between private matters (excluded from judicial review) and public matters (subject to judicial
review)
Canadian Arab  Minister refused to renew funding for CAF based on alleged links to terrorist organizations
Federation 2015 FCA  FCTD held no PF attached. Said this was a commercial relationship and no RPI triggered PF
 FCA upheld decision, but for different reasons
Mission Institution v  Federal inmate transferred to max security prison on emergency and involuntary basis
Khela 2014 SCC  Liberty interest at stake (significant impact on individual)
 It is clear from the record that the Warden, in making the transfer decision, considered
information that she did not disclose to Mr. Khela. Nor did she give him an adequate summary
of the missing information. The withholding of this information was not justified under s. 27(3) .
As a result, the Warden’s decision did not meet the statutory requirements related to the duty
of procedural fairness
Homex Realty and  The City enacted a by-law without notice to Homex deeming the lots purchased by Homex not
Developments Co v to be a registered plan of subdivision. Homex applies for JR
Wyoming 1980 SCC  H appeal dismissed
 Legislation was quasi judicial and so the duty of fairness did apply, HOWEVER the conduct of
Homex itself was such that it should be denied a discretionary remedy
Dissent
 by-law was not of wide and general application but was rather aimed at deliberately limiting the
rights of Homex, entitling it to some procedural safeguards

The Legitimate Expectations Doctrine

What is It?  The 4th Baker factor, allows an adversely affected party to gain more procedures than they
otherwise would have under the other 4 factors
 Cannot fetter Parliament (Reference re CAP) or go against statute (Mavi)
 Requirement: Representation must be clear, unambiguous, and unqualified (Mavi)
o This is a high standard
 Appears to apply over the PF threshold, although there is some uncertainty in this area
 Long-standing principle and line of authorities that LED only available to possibly amplify
procedures endorsed again by SCC in Agraira (para 97).

Reference Re Canada  The federal government invoked the power of Parliament to amend The Plan without BC’s
 Assistance Plan 1991 consent, issue is can they do this?
SCC  Court holds the rules governing PF do not apply Parliamentary government would be paralyzed
if the LED could be applied to prevent the government from introducing legislation in Parliament
to a body exercising purely legislative functions
Agraira v Canada 2013  Appellant found inadmissible to live in Canada despite being here for years, applied for
SCC Ministerial relief but app denied, applied for JR; also denied. Now appealing that decision
 SCC agreed with Minister and A’s application for JR dismissed
Application of LED
 In this case, the Guidelines created a clear, unambiguous and unqualified procedural framework
for the handling of relief applications, and thus a legitimate expectation that the framework
would be followed
 However, appellant did not show that his application was not dealt with in accordance with this
process

The Constitutional Dimensions of PF

Why the Charter Has 1. Applicable only to govt and govt entities
Not Had a Broad Reach 2. Section 1 can save a violation
for PF Threshold 3. Section 7 interests are narrowly defined
Bill of Rights is Broader! 1. Section 2(e)’s “person” applies to corporations whereas s. 7’s “everyone” only applies to
Let’s compare it to the humans
Charter 2. Section 1(a) includes individual’s “property” unlike s. 7 where property is absent
3. Section 2(e) refers to determination of “rights and obligations” whereas Charter is more specific
4. No equivalent to s. 1, BUT only applies to federal admin state
PF and Principles of  A duty of fairness may be owed under the Charter in addition to the duty of fairness that applies
Fundamental Justice at CL. PFJ include PF (Singh 1985)
(PFJ)  Legislation cannot oust PFJ
 Where the Baker framework is applied in the context of a s. 7 claim, it creates a stronger duty to
give reasons as a PoFJ
 Key point: The requirements of s. 7 can only be the same or greater than the requirements of CL
Suresh v Canada 2002  Issue: Can a possible constitutional act (deporting someone who faces a substantial risk of
SCC torture) become unconstitutional because procedures followed before deportation were
contrary to the PFJ?
 At the very least, PFJ = PF as defined in Baker, possibly more
 Court in this case used the Baker framework due to not having guidance of a statute
Section 7 Test
1. Is there a s. 7 Interest at stake? YES
2. State deprivation? YES
3. Deprivation in accordance with PFJ? NO
4. Is violation saved by s. 1? NO
Final result = S not entitled to a full oral hearing, but to more than what the relevant legislative gave,
which was nothing
Entitled to know: Notice of proceedings, disclosure of everything relied upon, written submissions, and
entitled to responsive reasons
New Brunswick v JG  Under Family Services Act, parent not given state-funded counsel. Does s. 7 mandate state
1999 SCC funded counsel?
 PFJ doctrine: state-funded counsel necessary where hearing would not be fair without it. What
makes for an unfair hearing?
Section 7 Test
1. Is there a s. 7 Interest at stake? YES
2. State deprivation? YES
3. Deprivation in accordance with PFJ? NO
4. Is violation saved by s. 1? NO
Charkaoui v. Canada  IRPA enacted after 9/11 to remove PR or FNs on grounds relating to terrorism on basis of
(Citizenship and confidential information
Immigration) 2007 SCC  Neither the named person nor an advocate/counsel can attend the secret hearing and thus
know the material constituting the adverse case.
 Once a SC is determined to be reasonable by a Federal Court judge, there is no appeal and no
 further judicial review.
 PFJ at issue is the right to a fair hearing before one can be detained
o SCC drawing on CL to concretize PFJ in this instance
 There is a violation, and it is not saved by s. 1. Less intrusive options available (affirmed Suresh)
Authorson v Canada  Class Action of disabled veteran war veterans trying to recover lost benefits, pension, and
2003 SCC interest from Department of Veterans Affairs. Fighting a statutory bar on claims
 Sued under the Bill of Rights
Held
 SCC rejected all of Authorson's arguments and upheld the statutory bar. CBR provisions did not
prevent Parliament from legislating as it had
 The CBA does not provide procedural protections when government through legislation
completely eliminates all such benefits for all possible claimants

Remaining Participatory Rights

Summary of Principles Notice
on Specific Procedures  Notice is typically afforded. Form, Content, Timing and Manner of Service may be at issue.
Discovery
 Discovery is not typically afforded; strongest where it is an adversarial proceeding and a serious
issue is at stake.
 Where discovery is provided, it may be subject to privilege claims
Delay
 Abuse of Process Doctrine – very high threshold to meet.
 Significant prejudice? Either fairness compromised OR delay unacceptable (i.e., inordinate,
brings legal system into disrepute, to pursue would be contrary to interests o f justice)?:
Disclosure
 Typically afforded during oral hearing (Kane)
 Claim to detailed disclosure is strongest where proceedings are adversarial, serious individual
interests at stake because wrongdoing is alleged (i.e. “judicial”).
 May be subject to privilege claims or national interest (Charkaoui)
Right to Counsel
 Right to Counsel depends on 3 factors (JG)
1. The seriousness of the proceedings
2. The complexity of the proceedings
3. The capacity of the affected party
Official Notice
 ADMS can take “official notice” of facts and generally more given expertise
Admissibility of Evidence
 Generally, rules of evidence do not apply. May apply, however, where on the “high end” of the
PF spectrum.
X-Examination
 Only when oral hearing, more likely when on the “high end” of the PF spectrum and is necessary
to present case
Reasons
 Afforded where “the decision has important significance for the individual, when there is a
statutory right of appeal, or in other circumstances” (Baker, para. 43)
 Serves three functions: (1) Disclose expertise in the subject area of the home statute, (2) Justify
the decision in a transparent manner, (3) Illustrate the outcome is also reasonable when more
than one reasonable alternative is available
 PF is about existence of reasons, not adequacy of reasons (Nurses’ Union, para. 22)
 Note: Post – Dunsmuir the quality of reasons appear to be more salient as a matter of SR.
Whether or not there is a duty to give reasons in first place is still a PF issue
Right to Oral Hearing Discussed extensively in Khan v University of Ottawa 1997 ONCA
 Law student failed exam and then realized she was missing an entire exam booklet. Her grade
appeal was dismissed without notice or opportunity to appear before the Committee
 Where “serious issue of credibility” exists, an oral hearing should be afforded
 Because Ms. Khan’s appeal turned on her credibility and because of the serious consequences to

Dissent
NFL Nurses’ Union v NFL
(Treasury Board) 2011
SCC
her of an adverse finding, fairness required an oral hearing
 No allegations, no accusations of dishonesty, not adversiaral, appellant has not been denied an
opportunity or refused entrance into the legal profession
 Arbitrator in this case asked to decide on whether casual employees were entitled under the
collective agreement to accumulate time towards vacation entitlements
 Court notes that Baker did not say that reasons were always required and that the quality of
those reasons is a question of procedural fairness
 Held: Arbitrator came to a result within the range of reasonable outcomes. Goal of grievance
arbitration is to be fast and informal, less stringent procedural rules

Rule Against Bias

What is It? From pg. 394 of National Energy Board
“[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. . . . [The] test is
“what would an informed person, viewing the matter realistically and practically -- and having thought
the matter through -- conclude. . . .”
 Standard for bias varies depending on context
R v S(RD) 1997 SCC  A cop arrested a black youth, TJ was black and acquitted the youth based entirely on oral evid.
 Controversial quote: "I believe that probably the situation in this particular case is the case of a
young police officer who overreacted. And I do accept the evidence of Mr. S. that he was told to
shut up or he would be under arrest. That seems to be in keeping with the prevalent attitude
of the day."
 Held: SCC held no RAOB. A reasonable, informed person, aware of all the circumstances, would
not conclude that they give rise to a reasonable apprehension of bias
Normative Critiques  The reasonable person as an “enduring fiction”
 Presented as universal and inclusive, yet partial and exclusive
 Dominant and hegemonic cultural understandings promoted
How Does RAOB Direct Pecuniary Interest
Manifest in a Case?  Tend to be “certain” and will automatically entail DQ of the ADM: They are benefitting directly.
 Certainty: the link between the interest and the decision maker is close rather than remote
 Notable exception: Ministers will not be seen to have a direct interest, even were named as
litigants, if they are exercising a political function (Imperial Oil)
Indirect Pecuniary Interest
 A pecuniary interest is indirect because it is uncertain it can still violate the rule against bias if it
raises a RAOB
Best analyzed through Pearlman v Manitoba Law Society JC 1991 SCC
 s.52(4) of Law Society Act permits the Law Society to recoup costs of investigations/proceedings
against members found guilty of misconduct. Pearlman found guilty, but claims that s.52(4)
violates s.7 of the Charter.
 Issue: Indirect pecuniary interest on part of benchers on Judicial Committee
 Held: No RAOB due to the following factors:
1. Recouping of expenses, not profit/gain
2. Costs are property of LS as a whole not individual benchers
3. Too remote
Personal Relationships Between ADM and Party
 Balance the desirability of having decision-makers with experience (and thus probably
connections) in the field against the undesirability of relationships that will influence them in
favour of their connections
 Look to currency of the relationship and how tenuous is that link
Prior Involvement by ADM in Earlier Stage of the Matter
Best analyzed through Committee for Justice and Liberty v Canada 1978 SCC
 Competing applications by pipeline companies, one from CAGP. Chair of NEB used to be
President of CDC, where he participated in a Study Group that established CAGP
 Issue: Does Crowe’s prior involvement as part of Study Group leading to an application in a
hearing over which he now presides raise a RAOB?
 Held: YES, Crowe had a deeper involvement
Also note Wewaykum Indian Band v Canada 2003 SCC
 Two bands suing each other for exclusive title, Binnie J. wrote the judgement. Later discovered
that Binnie attended a meeting discussing this issue years ago, both bands want his decision set
aside.
 Held: No RAOB. Not only did he not play an active role, but he used to be in charge of thousands
of files
Further Concerns with Attitudinal Predispositions
Regards to Bias  Situation: Experts in field generally representing “one side” or making public statements in the
past who are now in decision-making role
 Also consider ADMs posting on social media during their tenure. Developing law in this area
 Normally: This is NOT a concern. If DM is expert in their field, is not generally a RAOB (Great
Atlantic)
 Does raise RAOB where DM make a statement during the course of proceedings that declare
their opinion on an issue which is to be decided or has been decided in that proceeding
o Indication that they may have a closed mind?
Variation of Standards
 Applies to public statements or advocacy by elected officials or unelected polycentric decision
makers
 A municipal councillor is generally free to make public statements or advocate for a particular
interest and then vote at a hearing as long as they remain “amenable to persuasion” (Old St.
Boniface) – Also known as the “closed mind” test
 An unelected policy-making DM will also get the benefit of this relaxed/lenient “closed mind”
test during the investigative stage before a hearing date has been set. After that point, the
regular RAOB (still variable) test will apply (Newfoundland Telephone)
 Test for closed mind: need to show that hearing would be futile because decision-maker has set
and rigid view that will not change
Newfoundland Tele Co v  The Board held a hearing before five of its commissioners to evaluate the executive pay and
Newfoundland (Board) benefits package of the Telephone Co. One commissioner made biased comments to the press
1992 SCC before the hearings began, and continued to make comments after hearings ended
  Board refused to expel the commissioner, ended up decided against the Tele co.
 Held: There was a RAOB, commissioner via his comments had demonstrated his closed mind

Pre-Vavilov Substantive Review

Key idea: SOR overarching dilemma concerns whether and why courts should defer to the decision of the original DM, rather than
just proceed under the traditional assumption that judges always know best

Development of the Law Before CUPE: Diceyan Approach

 “preliminary and collateral question” (PCQ) and “wrong question doctrine” used to determine
which questions were “jurisdictional” (i.e. a question that “goes to” or “limits” jurisdiction) and
those that were not and thus within the jurisdiction of the ADM (“non-jurisdictional” questions)
 Both doctrines were very formalistic, following a Diceyan model. Did not allow for multiple
interpretations of the law
CUPE v NB Liquor Corporation 1979 SCC
 CUPE is a union representing striking employees, concerned with employer (LC) replacing them
with management personnel, therefore violating labour law
 ADM asked to interpret the correct meaning of the legislation. There are 4 possible
interpretations, how to know which one is right?
 SCC openly criticized PCQ approach: (1) difficult to distinguish, (2) overly formalistic, (3) arbitrary
Proposed alternative: Jurisdictional Questions approach!
1. Look for privative clauses and examine structure, roles and expertise of ADM to determine if
issue is jurisdictional
2. If jurisdictional, SOR is correctness
3. If not, SOR is Patent Unreasonableness (PU)
Held: The impugned provision was a “non-jurisdictional” question. Allowed Union’s appeal
 The interpretation of the provision lies logically at the heart of the specialized jurisdiction, court
should only interfere if decision is PU
Note the importance of the doctrinal change: courts should recognize administrative DMs not as "inferior
tribunals", but specialized bodies that possess a legislative mandate to matters that they may be better
suited to address than an "ordinary court"
Impact of CUPE
 Affirmed in Bibeault
o Offered a “pragmatic and functional” (PFA) approach to figure out what is a
“jurisdictional” question
o Central question now: “did the legislator intend the question be to within the
jurisdiction conferred on the tribunal?”
National Corn Growers Association v Canada 1990 SCC
 Review of Canadian Import Tribunal Decision
 Court found existence of privative clause sufficient to afford deference and SOR of PU
 Courts should respect administrative responsibility, expertise, experience, and multiple
meanings – reaffirmed CUPE
 Held that CIT’s decision was not patently unreasonable
Functionalism and Pezim 1994
Deference Plays a Role  Extends deference even on questions of law in the face of a statutory right of appeal
in Statutory Right of  Expresses the idea of a spectrum and sees this set of facts as falling in the middle
Appeal as Well Southam 1997
 Affirmed Pezim’s extension because of importance of expertise, statutory purposes and nature
of problem; note economic context
 Expertise is the most important factor
 Third SOR labelled as “Reasonableness simpliciter”

Standard of Review Pre-Dunsmuir

Defining the Three Correctness
Standards of Review  “court may undertake its own reasoning process to arrive at the result it judges correct.” (Ryan)
 Single right answer and it’s the court’s role to seek this out
 Reasonableness Simpliciter
 No single right answer, we are instead searching for a significant defect
 Defect that “takes some significant searching or testing to find” (Southam)
 “If any of the reasons that are sufficient to support the conclusion are tenable in the sense that
they can stand up to a somewhat probing examination, then the decision will not be
unreasonable and a reviewing court must not interfere” (Ryan)
Patent Unreasonableness
 Difference with RS is “in the immediacy or obviousness of the defect” (Southam)
 Defect that is “clearly unreasonable” (Southam) or “clearly irrational” (Ryan) or “evidently not in
accordance with reason” (Ryan)
Ryan confirmed these standards are fixed, does not “float”
“Pragmatic and Criticisms of this Approach
Functional” Approach  LeBel J. in CUPE contended that PFA suffers from a lack of clarity and methodological
Used to Arrive at a SOR inconsistencies
 Meanings vary widely and often overlap. Difficult to distinguish PU and RS
 PFA has become a “checklist” rather than “contextual”
Key point: During the pragmatic and functional era, it was the failure of the case law to produce a
distinction of any conceptual or practical value as between review for reasonableness simpliciter and
review for patent unreasonableness led the court in Dunsmuir to conclude that the efficiency-based
merits of reducing the standards to just two (representing deference and non-deference, respectively)
were not outweighed by any competing considerations
BC Responds Through Administrative Tribunals Act (ATA)
 Attempted to legislate SOR for certain questions, bypassing PFA
 Retains the above three standards
Pushpanathan v Canada  P applied for convention refugee status, but dropped claim after securing PR through other
1998 SCC means. Incarcerated for drug trafficking, renewed claim for refugee status as that would prevent
deportation
 Issue: Is he immunized from conditional deportation due to refugee status?
 ADM said trafficking made P ineligible under the UN Convention on Refugees, P applied for JR
PFA Test
 Four separate factors identified by the court in determining legislative intent under PFA
1. Privative clause
2. Expertise (MOST IMPORTANT FACTOR)
3. Purpose of the act as a whole and of the provision in particular, and
4. Nature of the problem – Q of law (less def.), Q of mixed law/fact (neutral), Q of fact (more def.)

The Dunsmuir Decision

Key Takeaways from the Context: Fatigue over the concept of the four-factor approach, too much context and blurred lines (this is
Decision the era between Pushpanathan and Dunsmuir). We need a different approach

Facts: D dismissed from government job in the DoJ. Insisted he was owed a duty of fairness prior to
termination. Adjudicator appointed to address his grievance interpreted the relevant statutory provisions
in a manner that allowed him to consider the reasons for discharge, even though the employer did not
assert that D was dismissed for cause

Issue: Was the adjudicator entitled to inquire into whether the employer dismissed him for cause and, by
extension, whether just cause existed

The Decision
The SCC takes out the PU standard and creates a new framework:
 First, courts must ascertain whether the jurisprudence has already determined in a satisfactory
manner the degree of deference to be accorded with regard to a particular category of question.
 Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the
factors making it possible to identify the proper standard of review
o Home statute? Expertise? Fact, policy, discretion, mixed? Correctness category?
o PFA rebranded as SOR analysis
o See graph on pg. 407 of textbook
 The following categories are subject to the correctness standard, regardless of what home statute says:
1. Constitutional questions regarding the division of powers between Parliament and the provinces
2. Determinations of true questions of jurisdiction or vires
3. The question at issue is one of general law "that is both of central importance to the legal
system as a whole and outside the adjudicator’s specialized area of expertise"
4. Questions regarding the jurisdictional lines between two or more competing specialized
tribunals
 In this case, Court ruled that reasonableness was the correct standard and the adjudicator's
decision was unreasonable
 Will not overrule specific requirements that are given in a statutory framework

Side note: SOR for internal appeals does not generate the same concerns as judicial review. Internal
appeal bodies should just do what the statute tells them to do
Canada v Khosa 2009  Khosa immigrated to Canada at 14, found guilty of criminal negligence causing death and
SCC sentenced to a conditional sentence. Removal order was issued for him to return to India
 IAD denied his appeal, applied for JR
Held
 SCC applied the Dunsmuir reasonableness standard, Binnie J. held that the courts should be
deferential to the IAD decisions and should not substitute its own findings
 Furthermore, the Federal Courts Act has legislated “grounds” of review, not “standards”
 Common law can only be trumped by clear statutory language; wide scope for deference
Manz v BC 2009 BCCA  TJ set aside Workers' Compensation Appeal Tribunal decisions claiming that Mr. Manz was held
to be a person covered by the Workers' Compensation scheme in BC when he was injured in a
collision with a truck
 Manz brought JR application to set this order aside, challenging sections of ATA that still had PU
Held
 Court ruled against Manz, Dunsmuir does not challenge the PU standard
 When statute and CL irreconcilable, statute wins
 There is a distinction between courts making a decision, and how that decision is made
o Legislature does the latter by legislating SOR, doesn't actually make the decision for the
courts. Does not oust the court, they still have a role

Impact of Dunsmuir
What Happened to PU?  Khosa still says the content of PU exists in BC
 Carter v Travelex states that Dunsmuir does not change ATA’s PU; still connotes “high def.”
 Seaspan Ferries affirms that SOR analysis should not apply to PF; that no deference owed even
under ATA’s “fairness” standard (the courts do not owe deference to the tribunal's own
assessment that its procedures were fair)
 2014’s Pacific Newspaper Group confirmed that the meaning of PU in Ryan continues to apply,
does not have the same standard as Dunsmuir reasonableness
West Fraser Mills v BC  Mr. E fatally injured while employed, worked within an area of a forest license held by West
2016 BCCA (2018 SCC) Fraser. For the purposes of the Workers Compensation Act, WFM was an owner of the
workplace but not E's employer
 WCB issued a report making an order finding WFM failed to fulfil its obligations as an owner of a
forestry operation, imposed an administrative penalty under s. 196 of the Act. WFM challenging
 Two issues: A regulation issue and a penalty issue
Held
 BCCA said SOR = C, SCC disagreed and said SOR = PU. Tribunal did not violate this standard
 SCC defines PU as: A legal determination like the interpretation of a statute will be patently
unreasonable where it “almost border[s] on the absurd”:
 SCC adopted a pre-Dunsmuir meaning to PU, lower courts have since adopted this meaning
Note: Controversial decision, three different dissenting judgements
Proper Methodology for  Affirms that ss 58 and 59 are “exhaustive” and “complete codes”. CL relevant, cannot overrule
Working with the ATA clear statutory direction
 Issue: what is SOR for Questions of Mixed L/F? Do these questions fall into gaps of the ATA?
Lavender Co-Op Held
Housing v Ford 2011  QMFAL is not “finding of fact” (which would attract s. 59 PU) and so SOR is C
BCCA  Per s. 59, if not a QOF, then C is the catch-all
Summary on the SOR
1. Legislative provisions are paramount and must be examined first
2. If s. 58 or 59 of the ATA is applicable that section represents a complete code of the possible
standards of review
3. If s. 58 or 59 apply, then the next step is to identify the type of question at issue
4. Once the type of question has been identified the reviewing judge must apply the mandated
standard of review.
5. If by the enabling statute neither s. 58 nor 59 is applicable, then the court must apply the
common law jurisprudence, as described in Dunsmuir
“Jurisdictional” Debate The question of how to examine “Jurisdictional” questions was pushed out in Pushpanathan but revived
Revived in Dunsmuir

Alberta (IPC) v Alberta Teachers Association 2011 SCC

 Privacy Commissioner received complaints that the ATA disclosed private information in
contravention of the Act (PIPA)
 Section 50(5) of PIPA provided that an inquiry must be completed within 90 days of the
complaint being received unless Commissioner notifies parties
 Decision took 22 months, went against ATA, ATA applied for JR
Held
 SCC ruled in favour of IPC
 Adjudicator's decision subject to judicial review on a reasonableness standard and her decision
was reasonable
 Commissioner was interpreting his own statute and the question was within his specialized
expertise, deference usually results in this situation
This decision seems to depart from the framework established in Dunsmuir. Justice Binnie openly
questioned the majority’s reliance on the home statute

Canada (HRC) v Canada (AG) 2018 SCC

 Canadian HRT does not have the power to decide if parts of the Indian Act were discriminatory
because legislation is not a "service" provided to the public
 Canadian HRC brought challenges to the HRT on the Matsons's and the Andrewses' behalf
Held
 SCC said the Tribunal's decisions to dismiss the challenge based on not having the power to
decide the issue was reasonable
 Canadian Human Rights Act was the Tribunal's home statute, said the Tribunal only had the
power to decide if a "service" was being delivered in an unequal way, not whether the law itself
was discriminatory
Another case departing from Dunsmuir. A “True Question of Jurisdiction” held to be determined on R,
not C

Final Note: Vavilov seems to have put to bed the “jurisdictional” question

Further Issues Determining SOR

Determining “Questions
of Law of Central
Importance”
Held
CHRC v Mowat 2011 SCC
 Mowat filed a sexual harassment complaint against the Canadian Forces, the HRT awarded her
$4000 for "suffering in respect of feelings or self respect"
 Also awarded $47k in legal fees, CHRC appealing this award
 SCC ruled the HRT did not have authority to award legal costs
 ADMs generally entitled to deference, but general questions of law that are both of central
importance to the legal system as a whole and outside the adjudicator's specialized area of
expertise must be reviewed on correctness
 In this case SOR is R (QofL within core expertise of HRT) but their interpretation was not
reasonable
  M entered into a settlement agreement with Ontario SC in respect of an earlier misconduct
McLean v BCSC 2013 claim, barred from trading in securities for 5 years
SCC  Executive Director in BC applied for a public interest order against her based on s. 161 (which
allows proceedings to be brought against persons who have agreed with another jurisdiction's
regulator to be subject to a regulatory action)
 Issue: Whether “events” under s.159’s 6-year limitation period of the Securities Act in relation to
s.161(6)(d) refers to underlying misconduct giving rise to the settlement agreement or the
settlement agreement that triggered the secondary proceedings (para. 3)? When does the clock
start running?
 The BC Court of Appeal ruled SOR is “C” because Limitation Periods are “central importance”
Held
 SCC ruled in Commission’s favour, SOR is reasonableness. Furthermore, said CoA erred in
applying a “C” standard
 The issue in this case does not fall within an exceptional category. LP’s are important, but
nothing special about this one. It falls within expertise
 Majority interpreted the clause as “Central Important AND expertise of the SC”

 Commissioner wanted access to privileged documents. Issued a Notice to Produce Records

under FOIPP, which requires a public body to produce records despite any privilege of the law of
Alberta (IPC) v U of C evidence
2016 SCC  UofC seeking JR
Held
 SCC dismissed IPC’s appeal
 This is a QOCI to the Legal System and outside IPC’s specialized area of expertise, so SOR is C
 Solicitor-client privilege is a substantive right fundamental to functioning of judicial system
 Abella concurring disagreed with SOR, but that end decision was right
Disagreements on how  Corporate taxpayer disputing property assessment done by City. Taxes payable was increased
to View a Statutory after correcting previous errors
Right of Appeal  TP seeking JR, saying legislation only gives authority to “decrease” an assessment on review, not
“increase”
 There is a statutory right of appeal in the legislation
Edmonton (City) v Held
Edmonton East  SCC said Board’s can increase assessment. SOR is R, based on deference
(Capilano) Shopping  Statutory right of appeal is not a new C category
Mall 2016 SCC Dissent (Four justices including McLachlin CJ)
 SOR should be C. Presumption of deference has been rebutted by clear signals of legislative
intent
 C because of SRA for certain QOL and QOJ
 Expresses reservations about assuming ADM is always expert
CHRC v Canada (AG)  Several complaints alleging that Indian and Northern Affairs Canada engaged in a discriminatory
2018 SCC practice in the provision of services contrary to the HRA when it denied a form of registration
under the Indian Act that the complainants would have been entitled to if past discriminatory
policies had not been enacted
 HRT dismissed those complaints based on a technicality
Held
 Decision was R and upheld, clear presumption of def. with HRT interpreting home statute
 Regardless of the importance of the questions before the Tribunal, they were clearly within the
Tribunal's expertise
 Tribunal provided careful and well-considered reasons
 Concurring judgement said SOR should be C, but agreed with final result

Commentary Against "The Withering of Correctness Review" by Lauren Wihak

Reasonableness  Main thesis is that there is very little space for correctness review
Presumption  It was the ATA case that created a strong presumption of reasonableness whenever a DM
interprets its enabling legislation
 Arguing that reasonableness review is really "disguised correctness review"
"The Return of Correctness in Judicial Review" by Shaun Fluker
  Obvious problem with ATA decision: just about every statutory decision in some way applies or
interprets a home statute
 In the Edmonton East dissent, Cote and Brown cautioned that grounding tribunal expertise
merely in its institutional setting risks making the presumption of deference irrefutable
"Dunsmuir is Dead-Long Live Dunsmuir! An Argument for a Presumption of Correctness" by Martin
Olszynski
 Argued that Dunsmuir hasn’t simplified anything, just reorganized the law
 Proposes two changes to Dunsmuir that would preserve much of the post-Dunsmuir case law
1. Reverse the presumption of reasonableness on questions of law to a presumption of
correctness, which can then be rebutted for a large majority of such questions through the
presence of a privative clause
2. Abandon the concept of "expertise" as a basis for deference and replace it with the potential for
democratic accountability
 Where an interpretation of law is genuinely rooted in a decision-maker's expertise, they will
generally be in least need of deference because their interpretations will also probably be quite
compelling
General Tips on 1. JR or Statutory Right of Appeal? – If statutory appeal, points toward C. If JR and especially
Approaching SR (Text privative clause, points to R (EE)
chapter 14) 2. Impugned Decision? – Law, fact, or mixed? Interpretation of statutory provision will always be
question of law inviting C. Fact tends to be R
3. How to Select SOR? – Now Vavilov
4. Issues of Central Importance? – Seriousness of the interest at stake
5. True Questions of Jurisdiction? – Basically been killed off
6. Difference between C and R Review? – To accord deference or not
7. What About Reasons? – Important if given, but not necessary
8. What Does RR mean? – In the facts, think about apparent ambiguity, thoughtfulness of written
reasons, or a history of well-established tribunal jurisprudence
9. Determining a “Range of Reasonable Answers?” – Be aware of statutory language calling for
discretion

Note: Vavilov changes much of this!

Applying the SOR

Examining Reasonableness in Theory
Reasonableness  Reasonableness is animated by the principle that certain questions that come before tribunals
do not lend themselves to a specific, particular result, and instead give rise to a number of
possible conclusions
 Two key elements of Dyzenhaus's conception of deference as respect have been affirmed:
1. Reviewing courts must pay respectful attention to the reasoning of ADMs
2. ADMs must ensure their decisions are reasonably justified in light of the relevant law and facts
 Three possible touchstones for assessment are justification, transparency, and intelligibility
Reasonableness in Practice
 In practice, review for Dunsmuir reasonableness has expressed the same contradictory impulses
toward judicial supremacy and judicial abdication that have long marked the law on judicial
review
 A number of decisions are said to be marked by a lack of concern for the reasoning of the DM on
review, and applied a standard concordance with the court's favoured conclusion
o Including both Dunsmuir itself and Mowat
 Is it really deference or is it abdication?
o Questions on whether the post-Dunsmuir case law has gone too far in downplaying the
responsibility of courts on review to discipline failures on the part of the administration
to adhere to conventions of reasoned justification
o Both Nurses Union and ATA are cases where this concern is raised, particularly with
regards to implicit decisions by the ADM that has not been addressed in reasons
Revisit West Fraser Majority (McLachlin, Abella, Moldaver, Karakatsanis, Wagner, Gascon)
Mills From Above, and  Methodology: past jurisprudence plus a “contextual assessment”
Examine the Reasoning  Conducts a regular SI analysis to figure out whether s.26.2(1) meets the R SOR.
 from the Justices  Determines that standard is PU, determines that WFM is an employer and appeal is dismissed
Dissent #1 (Cote)
 Legislation conflates owners with employers, going against the Act. SOR is C for the Vires issue
 WFM is not an employer. For interpreting the penalty clause SOR is PU
 Would allow appeal for both issues
Dissent #2 (Brown)
 See the vires issue as both vires and TQOJ, SOR is C. Says questions of delegated legislation
should always be C standard
 Adopt’s Cote’s reasoning for “penalty” issue
 Would only allow appeal for “penalty” issue
Dissent #3 (Rowe)
 Similar to Brown on the issue of vires
 Similar to Cote on the “penalty” issue
 Would only allow appeal for “penalty” issue

You can clearly see a very divided court here. So what are all the fault lines?
1. Whether delegated legislation should always attract a C standard
2. Whether the SOR for “legislative” ADM action in enacting regulations or otherwise should
always be C
3. What should be the fate for TQOJ?
4. Whether the majority’s review for the reasonableness of regulatory means is a new intrusive
step vis-à-vis municipal councilors or other statutory delegates.
5. Whether once RP is rebutted by TQOJ correctness category, one can proceed further to a
contextual analysis?
6. Whether deference should attach to matters of SI
Wilson v Atomic Energy  Employment context of termination without cause but with generous severance package
2016 SCC  Parties and the SCC agreed that SOR = R, Majority affirms that R does not vary (yet another fault
line, as Khosa said that R “takes its colour from the context”)
 Majority states that the law is a “labyrinth” and there is a need to streamline SOR
 Majority admits that Court has “sometimes engaged in “disguised correctness” review while
ostensibly conducting a reasonableness review.”
 Note Abella’s Dissent: Proposes there should just be one SOR and that it be R
o This proposal is grounded in the idea that the expectations of reasonableness may be
adjusted to reflect the legitimate scope of the DM's authority in any particular case
Delta Air Lines v Lukacs  Supplementing reasons may be appropriate in cases where the reasons are either non-existent
2018 SCC or insufficient
 In this case, the Agency provided detailed reasons that enumerated and then strictly applied a
test unsupported by the statutory scheme
 The requirement that respectful attention be paid to the reasons offered, or the reasons that
could be offered, does not empower a reviewing court to ignore the reasons altogether and
substitute its own

SOR for Constitutional Determinations

Changes Post-Dunsmuir Originally, para. 58 of Dunsmuir stated the following for constitutional issues: “Such questions, as well as
other constitutional issues, are necessarily subject to correctness review because of the unique role of s.
96 courts as interpreters of the Constitution”
HOWEVER, this presumption changing in the Post-Dunsmuir landscape
Lake v Canada 2008 SCC
 Extradition case where Lake says constitutional questions demand C as SOR
 SCC: “Courts have the duty to uphold the Constitution. Nonetheless, this is an area where the
executive is likely to be far better informed than the courts and where (state-to-state relations
involved).”
 Court dismisses previous case-law as misplaced
 Note: first time SCC is saying that M is owed deference not just on factual assessments (Suresh)
but also on s.1 analysis as a whole
Dore v Barreau du  D wrote a private letter to the judge calling him loathsome, arrogant and fundamentally unjust
Quebec 2012 SCC
 and other bad words. Was sanctioned, said this violated freedom of expression
Issue: Which framework should a court apply on JR of the DC reprimand decision - administrative law
SOR or Charter analysis?
 SCC held that standard was reasonableness, sanctions upheld
 On JR question is whether the decision reflects a proportionate balancing of the Charter rights
and values at play
 D's letter warranting a reprimand represented a proportional balancing of D's expressive rights
with the statutory objective of ensuring that lawyers behave with "objectivity, moderation and
dignity"
Key point: Confirmation that SOR for otherwise “reasonable” ADM decisions does not convert to C
merely because Charter values/interests involved
 Framework of Oakes apply more when laws are impugned rather than individualized,
particularly discretionary, decisions
DISTINCTION BETWEEN CHALLENGE TO LAW VS JUST ADM DECISION
New Methodology in Discretionary Decisions Involving Charter Values
1. Identify statutory objectives
2. Ask how Charter values can be protected under statutory objectives (proportionality)
3. This balancing is reviewed on R standard
Aftermath
 Challenges to actual law will be subject to Oakes on a C SOR. Decision will be subject to
administrative law’s reasonable SOR analysis
 Abella in her decision stated that the Oakes test and R review is very similar
 Multiple unresolved questions remain
o How does an ADM even know when a Charter interest is engaged?
o In requiring R review for admin decisions, has power of the Charter been diluted?
o 4 justices not in majority, 2 strong dissent. Will this framework survive?
o Still remains unclear whether deference is owed to an ADM's assessment of whether
the decision infringes a Charter right
o Brings up the possibility that a type of government action can legally infringe a Charter
right without needing to satisfy s. 1 of the Charter
o Charter “values” and “rights” are used interchangeably, previous caselaw treated rights
as more important. Considering the two as the same now may weaken the protection
afforded by Charter “rights”
LSBC v TWU 2018 SCC  Members of the LSBC voted to implement a resolution declaring that TWU's proposed law
school was not an approved faculty of law because of homophobic Covenant
 TWU initiates JR claiming that this violated freedom of religion rights in Charter
 SCC agrees with LSBC, proportionate balancing
Analysis
 Appropriate framework continues to be: (1) Does decision limit a Charter right? (2) Is the
limitation proportionate to the State objective?
 Majority: Charter values are engaged, not rights
 As the governing body of a self-regulating profession, LSBC is entitled to deference
 The reviewing court should apply a robust proportionality analysis consistent with admin law
principles, instead of a literal s. 1 analysis
 McLachlin concurring addressed some commentary re unsolved questions but accepted R as
SOR
Dissenting (Cote and Brown)
 Oakes test must apply to justify state infringements of Charter rights, regardless of the context
in which they occur
 LSBC's decision is a profound interference with religious freedom and is substantively coercive in
nature, statutory objective cannot justify any limitation
 Charter rights are engaged, not just values
Academic Commentary "Charter Rights and Charter-Lite" by Audrey Macklin
 Macklin very critical of Dore. Main points:
o The replacement of right with value obscures the recognition of rights and freedoms in
play
o The Dore methodology does not respect the primacy nor priority of Charter rights and
 instead produces a Charter-lite approach to review of discretion
o Makes the executive less accountable for Charter breaches committed via discretion
 SCC in Dore equips ADMs with a Charter-lite methodology that is approximate, vague and
incomplete, starting with its problematic invocation of Charter values, to its account of
proportionality.
 Macklin argues a Charter right weighs more than other interests and that the independence of
the ADM from political influence matters
"In Defence of Charter Values" by Lorne Sossin
 Contrast to Macklin, Sossin argues Charter values represents a promising alternative to a
constitutional framework which was confusing and ineffective
 States that critiques of the Charter Values framework is misguided. There is little in the structure
of Charter Values analysis to suggest it will lead either to lesser protections for the vulnerable or
to greater judicial activism
 Only concern right now is consistency

Vavilov!
New Proposals "Administrative Law Trilogy" by Macklin
Anticipating Vavilov  Says the state of Admin law has become so confusing it is unteachable (personally I agree)
 Proposes to argue about techniques of statutory interpretation instead of SOR
 Macklin argues to forget about SOR and argue directly about what ought to count in statutory
interpretation, why it ought to count, and how it ought to count
 A genuinely modern and sophisticated approach will make administrative actors partners in
identifying and using the tools that enable selection of the best interpretation
"Vavilov: Doing the Administrative State's Dirty Work" by Mark Mancini
 Sometimes ADMs have been unfair, discriminatory, and even racist
 The mere fact that governments delegate to ADMs says nothing about how courts should view
that delegation, given that the reasons motivating delegation are so variable (could just be for
efficiency, NOT expertise)
 ADM in Vavilov basically admitted that she had no idea about the central interpretive difficulty
in the case
 Courts cannot be conscripted into service by the administrative state to do its dirty work
"Looking Past Dunsmuir: Beginning Afresh" by David Stratas
 To create a reliable, stable law of substantive review, we need to: (1) Identify settled doctrine
and well accepted principles, (2) Deduce the operational rules from them, (3) Take into account
relevant, widely held judicial policies
 Two principles lie at the heart of judicial review: legislative supremacy and the rule of law
 Two types of operational rules; rigid and tangible rules and looser, more conceptual, flexible
rules
 Where the doctrine and principles suggest a number of possible operational rules, the one that
best advances judicial policies should be chosen
Canada v Vavilov 2019 Note: Vavilov will be discussed extensively, the following is just a base summary
SCC Facts
 V born in Toronto in 1994, parents were posing as Canadians under assumed names. In reality,
they were foreign nationals working on assignment for the Russian foreign intelligence
 Parents arrested in the US and charged, sent back to Russia
 V's attempts to renew his Canadian passport was unsuccessful, but in 2013 he was issued a
certificate of Canadian citizenship. In 2014 Registrar of Citizenship cancelled certificate on an
interpretation of s. 3(2) of the Citizenship Act
o Exempts children of “a diplomatic or consular officer or other representative or
employee in Canada of a foreign government” from the general rule that individuals
born in Canada acquire Canadian citizenship by birth
 Application for JR dismissed by FC, they used a C standard. FCA allowed appeal and quashed
Registrar's decision because it was unreasonable (used R standard). SCC dismissed Minister’s
appeal, ruled in V’s favour
Majority Analysis (Wagner, Moldaver, Gascon, Cote, Brown, Rowe, and Martin)
 Not reasonable to interpret s. 3(2) as applying to children of individuals who have not been
granted diplomatic privileges and immunities at the time of the children’s birth
  Created a revised SOR analysis pursuing again the goal of “mak(ing) the law on the standard of
review more certain, coherent and workable going forward” – para 22
1. A presumption that reasonableness is the applicable standard in all cases (contextual inquiry to
determine SOR no longer necessary)
2. Presumption can be rebutted in two types of situations
a. Where the legislature has indicated that it intends a different standard to apply. Can do
this with explicit language or providing a statutory appeal mechanism
b. Where ROL requires C to be applied (includes: constitutional questions, general
questions of law of central importance to the legal system as a whole and questions
related to the jurisdictional boundaries between two or more administrative bodies).
Leaves open the possibility for more CC to be identified in the future
 In conducting RR, a court must consider the outcome of the administrative decision in light of its
underlying rationale, to ensure that the decision as a whole is transparent, intelligible and
justified
 In cases where reasons are required, they are the starting point for RR
 Two types of flaws that tend to render a decision unreasonable: (1) A failure of rationality
internal to the reasoning process, (2) When a decision is untenable in light of the relevant
factual and legal constraints that bear on it
 Choice of remedy must be guided by a multi-faceted approach
 Application in this case:
o Presumption of R, not rebutted
o Decision was unreasonable because Registrar failed to justify her interpretation in light
of the constraints imposed by s. 3 as a whole, by international treaties, jurisprudence,
and potential consequences of her interpretation
Concurring (Abella and Karakatsanis)
Note: Although this is a concurring judgement, it was worded like a strong dissent
 The majority's changes will result in expanded C review by stripping away deference from
hundreds of administrative actors, in the process completely disregarding expertise
 New approach compromises A2J (narrow conception of ROL is invoked to impose judicial
hegemony over ADMs, which adds unnecessary expense and complexity)
 Courts are invited to apply an irrebuttable presumption of C whenever an administrative scheme
includes a right of appeal
 "Unprecedented wholesale rejection of an entire body of jurisprudence"
 The majority’s multi-factored, open-ended list of constraints on administrative decision making
will encourage reviewing courts to dissect administrative reasons in a line-by-line hunt for error
See class map: Deckha summarizes concurring judgement that looks at history of admin law in Canada

Defining/Applying the Reasonableness SOR

Vavilov Majority’s Note Dunsmuir is not being overturned, but there is differences on where emphasis should be placed by
Comments on RR a DM
Determining R
 “The approach we set out is one that focuses on justification, offers methodological consistency
and reinforces the principle “that reasoned decision-making is the lynchpin of institutional
legitimacy.”” (para 74)
 RR is concerned with the Decision-making Process and its outcomes
 Reasonableness is a single standard that accounts for context
o DOES NOT FLOAT
o “legal and factual context (which) dictate the limits and contours of the space in which
the decision maker may act and the types of solutions it may adopt.” (para 90)
The Role of Reasons
 Administrative justice is not the same as judicial justice
 Evaluate the reasons given by looking at the historical and contextual factors
 Where a “fundamental gap” or “unreasonable chain of analysis” renders a decision
unreasonable, a court is not supposed to supplant the flawed reasons
Review in the Absence of Reasons
 Same analysis, but analysis will then focus on the outcome rather than DM’s reasoning process
 Court claims: This does not mean that reasonableness review is less robust in such
 circumstances, only that it takes a different shape. Is this actually the case?
What is the Standard?
 “a reasonable decision is one that is based on an internally coherent and rational chain of
analysis and that is justified in relation to the facts and law that constrain the decision maker”
(para 85)
 Burden lies on person challenging decision to show “sufficiently serious shortcomings” such that
it fails JIT standard; more than “a minor misstep”; must be “sufficiently central or significant”
(para 100)
 Recall fundamental flaws from above
What is Internally Coherent Reasoning?
 Reviewing court must be able to trace the DM’s reasoning without encountering fatal flaws in its
overarching logic, and it must be satisfied that “there is [a] line of analysis within the given
reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at
which it arrived” (Ryan and Southam)
What are Legal and Factual Constraints?
 Governing statutory scheme; other relevant law; principles of SI (text, context, and purpose of
the provision); relevant evidence; submissions; past jurisprudence; potential impact
 Not technically a checklist by concurring judgement sees it that way
Vavilov Concurring  See the “multi-factored, open-ended list of “constraints” as too intrusive
Comments on RR  Majority’s R standard “undercuts deference and revives a long-abandoned posture of suspicion
towards administrative decision making.”
 Deference should be based on delegation AND expertise
 What is deference? It is attitudinal, requires framing, and evaluative
 Supplementing reasons IS FINE. Where no reasons available, ok to look to past decisions and
procedural context
Academic Commentary "The Vavilov Framework and the Future of Canadian Administrative Law" by Paul Daly
 Vavilov conclusively removes a contextual analysis to determine the SOR
 Privative clauses in the Vavilov framework count for nothing
 Expansion of the "central questions" category, elimination of jurisdictional questions and
opening the door slightly to the possibility that a new rule-of-law category will be recognized in
the future
Tensions that Need to be Resolved
 If there are shortcomings in the decision such that it cannot be said to exhibit a sufficient degree
of justification, intelligibility, and transparency
 Relevance of the governing statutory scheme to the constellation of law and facts
 The role of the nominate grounds for abuse of discretion remains murky
 Conducting deferential review where reasons are sparse or non-existent
 Majority reasons don't adequately address the risk of administrative inconsistency

Applying Vavilov
Majority Judgement
 Registrar’s judgement not justified “in light of the
constraints imposed by” principles of SI. Each
element, “individually and cumulatively” indicates
that s.3(2)(a) only meant to apply to those who had
diplomatic privileges and immunity” (para 172)
 “failed to address the immediate statutory context
of s.3(2)(a)”
 V’s arguments about Vienna Convention, case law,
Hansard make sense. Analyst did not respond to
these arguments. (paras 179-182)
 Registrar also did not consider “harsh
consequences” of her “expanded” definition (para
192)
Concurring Judgement
 Looks to what analyst reasoned and whether there are
other pertinent parts of record to supplement her reasons
(there aren’t), what submissions Vavilov made, and other
internal policy, guideline or other legal opinion (non-
existent). Reminds us that V has onus of showing that
decision is not R. Paras 331-332.
 Registrar’s interpretation does not read s.3(2)(c) in
connection with s. 3(2)(a).
 Also notes that analysis missed the point re case law (para
338)
 V “has satisfied us that the R’s decision is unreasonable”
"Preliminary Assessment of Vavilov Framework Addressing Concerns of Marginalized Communities in the Immigration
Law Context" by Jamie Liew

 Liew says relative expertise no longer playing an important role in selection is a very welcome change
 In the immigration and refugee law context, defining what is expertise has been problematic
o Audrey Macklin has stated that there are some DM's at the IRB who are ideologically opposed to the
idea that Canada has an obligation to protect asylum seekers and who lack the empathy needed to
adjudicate at the IRB
 Applauds this decision for its consideration on impact of affected parties
 Two takeaways:
1. Expertise is difficult to measure and cannot be taken for granted
2. Even when there are measures in place to guide DMs, still a need for robust judicial review
 Unfortunately, Vavilov provides little guidance on how statutory appeals of a judicial review should be treated
 Vavilov points to Baker where even in the absence of codification, international principles and values play a role
in informing the contextual approach
 Vavilov does not provide a coherent answer to the problem of "persistent discord" or divergent lines of
authority with regards to certain statutes. Instead, intervention warranted when discord becomes "serious,
persistent and unresolvable" (this is problematic for people who may be affected by a life altering decision right
now)
 Liew advocating for a correctness standard on interpretation in order to achieve the goals of the RoL

Judicial Treatment Since Vavilov

Decisions Involving RR  Missing interpretive element not unreasonable unless the court “loses confidence” (CUPW),
of Statutory confirms that sometimes only a single interpretation is reasonable (Vavilov, para 124)
Interpretation  A failure to consider a key contextual element would be indefensible and unreasonable where
the DM may well have arrived at a different result had it considered the element
o Potential fault line: Doesn’t this make it difficult to establish a boundary between RR
and C??
Canada Post v CUPW 2019 SCC
 Union representing postal workers complained that CP failed to respect duty to ensure that the
local work-place committee inspect every part of the workplace when it decided to limit
inspections relating to carrier routes
Majority
 Majority upheld a tribunal decision as reasonable, 7-2 decision
 Majority praised ADM for their understanding of the ways in which CP fulfils the purposes of the
Code, bearing in mind practical limitations of a work place. He considered the text, context,
purpose, as well as the practical implications of his interpretations
 The reasons provided “cogently explained the rationale” (para 81). Any flaws must be
“sufficiently central or significant”, which the majority did not see in this case
Dissent (Abella & Martin)
 Interprets legislation to mean employers should ensure safety obligations apply both to
workplaces they control and to every work activity that they do control to the extent of that
control
 ADM ignored this provision, hence their interpretation was unreasonable
Smith v Canada 2020 FC
 ADM is a Review Panel established to inquire as to whether a Judge in Ontario should be
removed from office. Needed leave to be temporary dean at a law school. Despite asking for this
leave and getting it, Review Panel still decided accepting this position contravened the Judges
Act which requires judges to confine themselves to their judicial role
 Majority determined that the ADM failed to consider key elements of the interpretative context
o Court looks at the words of the statute, and questions whether the Review Panel is
engaging in "reverse engineering" to achieve a desired outcome
o In nether English nor French do the words support the conclusion that the intent of
Parliament was to restrict judges from performing non-remunerative engagements, in
fact they are focused on remunerative commercial engagements

Question: Is this “robust” RR review any different from the C standard? Is it a higher more exacting level
of RR given judges reviewing ADMs who are also judges in their main profession?
There are Many Further
Residual Questions that
Still Remain
 Interestingly: The FC stated that if the Review Panel’s interpretation was correct, former CJ
McLachlin would not have been allowed to write her book
1. Should there be deference on QOL? Other jurisdictions don’t defer. Does SOP support this? How
to reconcile the lack of attention to the PC?
2. Should there be deference on QOL on SI especially? Isn’t that the purview of Courts?
3. How to interpret the word “appeal” in a statute going forward?
4. How to distinguish between mixed QFAL (will attract “palpable and overriding error” if “appeal”)
and QOL (will attract C SOR if “appeal”)?
5. How to define “general questions of central importance”?
6. How to reconcile internal discord with the ROL?
7. Was elimination of TQOJ principled, especially given what Majority says re arrogation? Are QOJ
still preserved through appeal mechanisms that use QOJ?
Applying Reasonableness
8. Expertise removed from determining SOR question, but not application of SOR question. Does
this make sense of will same fault lines over expertise recur?
9. And what does Majority mean by “demonstrated expertise”? Is it the pre-Vavilov meaning or
something else?
10. How to perform RR where no reasons are required?
11. How much inference from record will be permitted? From which sources?
12. Does “culture of justification” embedded now into RR intrude into PF arena by effectively
requiring all ADMs to justify their decisions?

Future caselaw will need to resolve these questions, also may be an exam question!!!

The Dore/Vavilov Relationship and Vavilov’s relationship with Indigenous Rights

Vavilov’s Impact on "Unresolved Issues After Vavilov II: The Dore Framework" by Daly
Dore  Author argues Dore is strengthened by Vavilov, not weakened
 “Given the replacement of expertise as the conceptual basis for deference with an across-the-
board presumption of RR and the narrowness of Vavilov’s rule-of-law exception, I do not think
there is any incompatibility between Doré and Vavilov”
 Sees balancing of statutory objectives and Charter rights regarding discretion to be more
tolerant to different answers. This balancing was the core concept in Dore, and it is just as
possible post Vavilov as pre
 Removing expertise by presuming R is irrelevant, AND Vavilov is not as Diceyan as Mancini
claims it to be
"Dore Revisited: A Response to Professor Daly" by Mancini
 First inconsistency: why would a court presume expertise on constitutional matters (Dore), but
not on ordinary legal interpretation (Vavilov)?
 RR in Vavilov is stricter than Dore
Main disagreement with Daly is how far they would extend the presumption of R
 Daly would extend to Dore type issues, Mancini says the presumption must exclude Dore type
decisions
o Presumption of R CANNOT apply to Charter issues according to M
 It does not make sense for legislatures to be able to escape the full scrutiny of the courts under
the Constitution simply by delegating to an ADM
 Important perspective is the holder of the right. How to explain to them that the right means
something different because an ADM made the decision?
 Furthermore: legislative intent theory cannot apply to constitutional matters
Vavilov’s Impact on The Majority’s inclusion within the framework of RR of the importance of what is at stake for the affected
Indigenous Rights party in terms of the potential impact of the ADMs decision is a new element
 Seems to be a positive development with respect to justification in that the affected party must
receive responsive justification if a decision does not go their way
What About Self Governance?
 Status of SG in Canada described as "multilevel governance" – several different models exist
 Review of the decisions of Indigenous DMs must proceed in an informed and deeply contextual
 manner to identify the sources (or sources) of authority, whether it's been appropriately
exercised, and attend to not re-inscribing the harms of colonialism
 Indigenous nations may avoid seeking "official" recognition for their governance institutions and
laws, and just simply choose to implement them
o E.g. BC and the Council of the Haida Nation (CHL) have an agreement creating a
commitment to joint decision-making
"Thinking About Vavilov  Where reasonableness applies, the approach to reasonableness supports and possibly furthers
in Indigenous Contexts" the ability to argue contextual features of reconciliation and self-determination as important in
by Janna Promislow reasonableness review
(Guest Lecture)  Recall that three C categories have been identified (constitutional questions, CILS, Jurisdictional
Boundaries) with room provided for adding more
 However, the ROL is limited and rather narrow, critiques that the above categories are not
broad enough. Indigenous contexts presents additional concerns:
o Not all administrative decisions are made under legislation, and the reasons for that
lack of legislation can themselves problems for the rule of law in Indigenous contexts
 The formalist conception of the rule of law creates conceptual hurdles. Focus of ROL has a
hierarchy. Obstacles in getting courts to see the larger context of public law and public law
institutions
Kainaiwa/Blood Tribe v AB (Energy), 2017 ABQB 107 (NOTE: Pre-Vavilov)
 AB government declined to sell subsurface rights to Tribe and provided reasons in short letter
 Court says honour of the Crown extends to communications. “Providing reasons displays the
requisite comity and courtesy becoming the Crown as Sovereign toward a prior occupying
nation”. Also important for a decision requiring significance
 Finds that reconciliation is a mandatory consideration in this context:
Pastion v Dene Tha’ First Nation, 2018 FC 648 (NOTE: Pre-Vavilov)
 FN election dispute, incumbent chief lost election and complaining that another candidate was
ineligible. Internal Election Appeal Board dismissed the complaint
 Court stated Indigenous decision-makers are obviously in a better position than non-Indigenous
courts to understand Indigenous legal traditions. Indigenous election legislation is a component
of SG. This aspect of deference must be realized
 “When deciding whether Indigenous decision-makers have made an unreasonable decision,
reviewing courts should read their reasons generously, supplementing any apparent omission by
looking to the record.” (para 28)
Post-Vavilov
 Author does not think anything has changed with regards to the above two cases, BUT
 Vavilov arguably provides a platform for increased judicial scrutiny under the reasonableness
standard. This has the potential to backfire where Indigenous law is not well understood or
respected and/or where a community has more than one (sometimes competing) governance
bodies involved in the dispute
 Note further implications of Vavilov for the Duty to Consult and Accommodate (DTCA)
o Academic commentary on this is mixed, Dr. Promislow says she thinks the Vavilov
framework for determining the standard of review does not address the DTCA
Conclusion
As in other contexts involving vulnerable parties, the approach to reasonableness review in Vavilov is
likely helpful in cases where an Indigenous party has a dispute with the Crown and flexible enough to
allow for appropriate deference in reviews of Indigenous decision-makers

However, the focus on legislation and the narrow view of the rule of law suggest that other Indigenous
issues and contexts will be harder to argue and fit within this new framework. Perhaps Vavilov will prove
to be less complete than intended