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JUDICIAL REVIEW

 Once an administrative body has been found to be acceptable under the RTT, we must then establish what the relationship is between that body and a s. 96 court.  Examine the decisions it makes: Want or excess of jurisdiction  BIBEAULT: a tribunal cannot have the jurisdiction to decide its own jurisdiction – this is a general question of law and the jurisdiction of the courts.  PASIECHNYK: a tribunal is allowed to be the guardian of its own jurisdiction – the question is how far can they go? Labour tribunals have a high threshold.
 Where a board is protected by a strong privative clause; then the decision of the board is only reviewable if it is: a) Patently unreasonable; b) The tribunal made an error in interpreting its own enabling jurisdiction.

Standard of review PUSHPANATHAN: administrative bodies can interpret laws and apply facts – the question is at what point does simple interpretation become a general question of law? Did the body focus on fact or law?

JUDICIAL REVIEW TEST
1) Look at the legislation for a privative clause: this determines what the standard of review should be:  The presence of a full privative clause is evidence that the court ought to show a high level of deference to the body’s decision, i.e.: Pasiechnyk.  On the other end of the spectrum is a clause that permits appeals, which suggests a lower level of deference and a more searching standard of review, i.e.: Mossop, Bibeault, YOP. What was the expertise of the body? What purpose is it trying to achieve?  What is the expertise of the tribunal: if it has been constituted with a particular expertise with respect to the experience and specialized knowledge of its decision-makers, then a greater degree of deference should be afforded, and vice-versa. a) characterize the expertise of the body in question; b) identify the nature of the specific issue before the body What is the purpose of the act as a whole, and the provisions in particular?  When the body is acting like a court, hearing disputes between parties and establishing rights and entitlements, the more review it is subject to. If the board is performing a ‘management’ function, then the appropriateness of court supervision diminishes. What is the nature of the problem: a question of law or fact?  Administrative bodies can interpret laws and apply facts: this is what they are made to do. The question becomes at what point does simple interpretation ‘slide’ over into a general question of law?  If it is a general question of law, it is likely a question of jurisdiction, in which case it is the role of a court. General questions of law make precedents: can’t be wrong.  If the tribunal is answering a specific question of law, then it may be okay, unless it is given a patently unreasonable answer, in which case it is a matter for the courts.

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Human Rights Bodies Have a VERY LOW THRESHOLD OF STANDARD OF REVIEW:  BERG: human rights bodies do not get to interpret what “services customarily offered to the public”

Public is defined in relational terms: every service has its own public; schools have a public relationship with the people they admit. The link between the 2 is the educational and recreational services it provides to students. A school has to provide the same services to everybody it admits.

 La Forest says some bodies can: 3 questions to ask… 1) Look for an explicit grant to decide general questions of law – is there a strong privative clause? 2) Look for an implicit grant of jurisdiction – if the body could not fulfill its function without making general decisions of law. They are not in the public domain and cannot be viewed as constituting a public relationship.  GOULD: the question of what constitutes services to the public is a general question of law. 24(1). Don’t need an actor – just a statute. and one that is reviewable by the courts on the basis of correctness.   Human rights bodies have a shared expertise with courts.  WEBER: LINK TO CHARTER CHALLENGE: does the body have the authority to make Charter challenges? The tribunal here does not have the authority to decide if rights have been violated under s. There must be an actor. 3-stage test for s. but only incidentally. BELL & COOPER: only a court can determine the constitutionality of legislation in the area of human rights – in this case the enabling legislation of the CHRA.  The private benefits in Gould flow outside into the public. 24(1) – Used to award remedies to human beings.  Human rights bodies do not have the jurisdiction to hear general questions of constitutional law.  Section 96 courts can do these things – can a tribunal? WEBER + BELL & COOPER Is the decision-maker a government actor? DOLPHIN: the Charter doesn’t apply to private actors: just executive / legislature. then it probably has an implicit grant. 52(1) – Used to challenge the statute: Statute can be declared of “no force or effect” and struck down (Big M Drug Mart). The court exercises a supervisory role over the jurisdiction of discrimination.  This was not an overt act of discrimination – to decide that it was would unjustifiably broaden the definition of discrimination.  s. This is their interest – making the charges go away. ROSS: human rights organizations cannot answer general legal questions – the definition of discrimination is a general legal question an in the jurisdiction of the courts.   The courts have shown typically low levels of deference to human rights bodies.  . CHARTER CHALLENGE What does the person want?  S. Big M Drug Mart was charged with a criminal offence – the criminal statute is unconstitutional. 3) No grant at all. 52(1) requires some interest.  S. Examine the relationship between the people using the service and the service provider: this is key to establishing whether the relationship is public or private. 24(1) competence:  1) Jurisdiction over parties: can one party take another to this jurisdiction to settle a dispute 2) Dispute itself: does the body have the jurisdiction to settle the dispute before it? 3) Remedy: does the body have the jurisdiction to remedy? If they can’t offer the remedy they don’t have the jurisdiction.  Cannot push a particular public dimension of a private organization back into the organization.

Now that we know what kind of infringement we are dealing with… Is the legislation prescribed by law?  OSBORNE: 2 question to ask: 1) 2) Is there a law? Is it clear enough to satisfy the rule of law: A. reflect our multiculturalism. One section of the constitution cannot override the other.  ELGIN COUNTY: there is a difference between a religious education and educating about religion. it must be complete. it must do so in a non-discriminatory If not a government actor. 93.  Doctrinal content is unconstitutional: can’t educate 1 religion is better than another. MCKINNEY: left the door open as to whether a university is a government actor: the fact that a university is funded by the government is not necessarily sufficient to make its actions subject to the Charter. a prohibition.    The catholic school system is constitutionally protected by s. Does it give notice? . If a statute make a reference to religion it means they are taking a stand on religion. challenge the statute – challenge both if you have both  VRIEND: a human rights statute must protect everybody and conform to the Charter: this is an IF  THEN situation: if they offer protection.  HILL: the Charter applies to court decisions: the court must ensure that the common law is consistent with Charter values. but once inside the public courts it applies to private disputes.   Passes the minimal impairment test because of the exemptions: the court must give government the discretion to legislate.   fashion. If the government has provided a benefit. Charter can’t be used as a cause of dispute. 2(a) cannot force the government to do anything – it is a negative right. Once you have an actor / legislation… How will you challenge the infringement? 1) Is the government favoring 1 religion over others?  BIG M DRUG MART: government legislation must be secular. ALDER: s.  ELDRIDGE: bodies that are private may still be performing a government function by implementing government decisions and objectives.  ZYLBERBERG: public school system can’t identify with 1 religion – the state can’t have the purpose of indoctrinating children. 2) toward another? Is the government burdening other religions through its actions EDWARD BOOKS: legislation cannot burden those who choose one religion over another. BILL 30: government is paying for catholic educations: favoring this religion over others.

and how that balances with the social good to be achieved by limiting that right. Make sure the law is serious and that the government can make a case. 2. The first step is the “pressing and substantial concern” test. 3 components. The Oakes test:  THERENS & SOUTHAM: Living tree. you have to address it.  Why did they choose the one they chose?  What is the nature of the impairment?  Proportionality Test  recognized harm with infringing a right. “Deleterious effects” test requires proportionality between the effects of the measures that are responsible for limiting the right or freedom. and the objective that has been identified as of “sufficient importance”.  Rational Connection  Means / End analysis  Means is the statute itself. retard.  Minimal Impairment  Courts may look for evidence of alternatives: was there anything else they could have done?  Doesn’t mean the least intrusive means as possible. Government must bring in persuasive evidence on the balance of probabilities that they have some serious social objective. 1. interpretation of the Charter rights must be interpreted broadly.B.  Even though this might seem obvious.  The evidence is usually policy evidence.  Courts are not allowed to craft alternative means that may be less intrusive but cost the government a fortune.  DAGENAIS: adds a 3rd component to the Oakes test. the courts could almost always come up with something less intrusive. the means in which the government is seeking to limit. Proportionality branch of the Oakes test. then the courts must make every effort to allow it.  Just want evidence that the government considered alternatives. Does sit confer too much discretion on the actor? C.  OAKES: present test in 2 steps. The courts see some infringements as far worse than others. Unless the legislation is completely unintelligible. You’re done.  The court usually defers to the government. focusing on the underlying values. Given time.  Proportionality = Impairment & Social Good. Does it protect against arbitrariness?  IRWIN TOY: the courts need the law to be clear so they can interpret and apply it.  The court has established infringement. this dictates how much the government will have to bring forward to justify the infringement.  End: whether the impugned law actually addresses the objective. Now go study for TORTS. with step 2 having 3 components. .