CANADIAN

ADMINISTRATIVE LAW
Module 1

Liz Nastasi & Trevor Guy

Introductions
• Instructors
• Course Outline
• Readings/Cases
• Lecture Notes
• Evaluation
• Checklist
• Scenarios
Intro to Admin Law
What is admin law?

• Administrative law is the body of law that addresses the actions of

administrative decision makers (or ADMs), and the manner in
which courts can review the decisions of these ADMs, to ensure
they observe the limits on their authority.

• It “concerns the legal structuring and regulation of sovereign

authority, both in the state’s relations with individuals and in the
allocation of authority among various institutions:” Van Haarten et
al.

• Admin law is really about the propriety of government decision-

making and the courts’ supervision of that activity.
Intro to Admin Law
The basics:

• The ADM action/decision.

• Does the decision affect your rights, privileges? Is the ADM a public body and thus
subject to review? Is the type of decision subject to review?

• The process.

• Was it fair? What IS fair? What procedural safeguards do or should people have? When
do these safeguards apply?

• The result.

• How should the courts review the substance of ADM decisions. Was the decision
reasonable? Was it correct? Which does it need to be, and what do those things mean?
Intro to Admin Law
• Who are the players? Various individuals and
institutions are involved in administrative
decision-making, including the legislature,
cabinet, ministers, and municipalities.

• Most often, we are talking about some

legislatively created entity that is not part of a
government Ministry but nonetheless part of
government: agencies, boards, commissions,
tribunals, etc.
Intro to Admin Law
• Our focus is on independent administrative agencies, boards,
commissions, and tribunals because they play an increasingly
important role in our society and regulate many aspects of our
life, from beginning to end.

• They are both federal and provincial.

• Let’s look at some federal organizations:

Federal Organizations by Category

• Ontario also has many ministries and agencies created by the

legislature. You can see a list of these by visiting the public
appointment secretariat website. Public Appointments Secretariat
Intro to Admin Law
• Administrative boards and tribunals (and
ministers and departmental officials) have
no inherent power to make decisions that
affect people’s lives, EXCEPT for the
statute (or royal prerogative) that
empowers them to do so.

• So the role of the court in administrative

law is to make sure, at a minimum, that
decision-makers do not step outside the
boundaries of what they are legally
empowered to do.
Intro to Admin Law
• The starting point in admin law is often the enabling
statute of the decision maker

• Also, pay attention to the regulations made under the enabling

statute. These often include important substance and definitions,
and may deal with process. They can also be amended easily.

• In addition, most boards, agencies and tribunals have Rules that

deal with practice and procedure.
Intro to Admin Law

• Administrative decision makers have no inherent power

• Must stay within the 4 corners of the statute

Enabling Statute

Regulations

Rules
Intro to Admin Law
Example: Immigration and Refugee Board of Canada or “IRB”

Canada's largest independent administrative tribunal.

• Every year, the IRB renders more than 40,000 decisions on refugee protection and
immigration matters.

• The Immigration and Refugee Protection Act, S.C. 2001, c. 27 provides the IRB
with jurisdiction to hear and decide cases on immigration and refugee matters. It is
the IRB’s enabling statute.

• Immigration and Refugee Protection Act

• http://laws.justice.gc.ca/eng/acts/i-2.5/index.html

• Adjudicative divisional rules

• http://laws.justice.gc.ca/eng/regulations/SOR-93-47/index.html
Intro to Admin Law
Tension: government v. the courts

• A recurring theme in admin law is the tension between the

appropriate role for governments (through the agencies
they create), and the courts—and which set of decision-
makers are accountable to others.

The
ADMs
Courts
Intro to Admin Law
Tension: government v. the courts

There are shifting views on these roles

• Some argue for a much greater role for administrative action so
that government objectives can be easily implemented.

• Others support the rule of law and are less comfortable with
administrative action that seeks to limit access to the courts for
vulnerable individuals

Government
The Courts
Objectives
Intro to Admin Law -The Rule of Law
• The rule of law is an important legal principle in admin law.

• It does not have one simple definition. Generally speaking, however, it

recognizes the supremacy of law over unconstrained political power – that is,
that people should be governed by law, not by individual government officials
or ADMs.

• Its aim: to prevent illegality and constrain arbitrariness in the exercise of public
authority.

• Flood and Sossin explain that it offers four basic guarantees:

• all persons will be considered formally equal under the rule of law, including those holding public
power;
• public standards will guide the creation, enactment, and enforcement of law;
• that the government and legal system will treat individuals fairly; and
• an existing legal system enables access to legal processes in order to resolve complaints.
Intro to Admin Law -The Rule of Law
• The concept of rule of law was popularized in the 19th
century by English constitutional lawyer and professor
Albert Venn Dicey, who pronounced that the rule of law

means, in the first place, the absolute supremacy or

predominance of regular law as opposed to the
influence of arbitrary power, and excludes the
existence of arbitrariness, or prerogative, or even of
wide discretionary authority on the part of the
government.
Intro to Admin Law - The Rule of Law
• Two important principles emerge from Dicey's rule of law:

1. "regular law" is supreme and individuals should not be subject to

"arbitrary power,“ especially in the executive branch and
administrative state; and

2. “formal legal equality” – that is, every person, including

government officials, are equally subject to the law.

• A question that arises in admin law when discussing the rule of

law is: how can the public be sure that government-appointed
decision makers (tribunal members for example) will hold fair
hearings and stay within the ambit of their powers?
 
Intro to Admin Law
• Answer: the courts.

• Under the Diceyan model, the courts are

the chief rule-of-law check on executive
arbitrariness.

• The process of judicial review (reviewing

ADM action/decision) by the courts ensures
that ADMs remain true to their fundamental
mandates, both procedurally and
substantively.

• As guardians of the rule of law, the courts

ensure that any administrative decision
maker that relies on power delegated by
the legislature abide by the terms and
conditions according to which that power
was granted.
Intro to Admin Law -The Rule of Law
• Roncarelli v Duplessis, [1959] SCR 121, a landmark constitutional decision in which the
Court held that Duplessis, the premier of Quebec, had overstepped his authority by
ordering the Quebec Liquor Commission to revoke Roncarelli’s liquor licence.

• Although Premier Duplessis had some limited authority under the relevant legislation,
his decision was not based on any factors related to the operation of the licence, but
was made for unrelated reasons, and was therefore held to be exercised arbitrarily and
without good faith.

• Justice Rand wrote in his often-quoted reasons that the unwritten constitutional
principle of the “rule of law" meant no public official was above the law, that is, they
could neither suspend it or dispense it.

• https://www.cbc.ca/player/play/1743556658

• For a modern parallel, see Tesla Motors Canada ULC v. Ontario (Ministry of
Transportation), 2018 ONSC 5062 (Div. Ct.), or Canada (Attorney General) v. PHS
Community Services Society, 2011 SCC 44
Intro to Admin Law -The Rule of Law
Intro to Admin Law
• As we go through the materials in this course, you will encounter
periods in the history of Canadian administrative law during
which the Supreme Court struggled to find a practical and
principled way to reconcile:
a vibrant regulatory
system of ADMs created
to implement valid
government objectives,
programs, and policies

judicial review that

maintains the rule
of law
Intro to Admin Law
Administrative law is, in part, the body of law related to
overseeing administrative action and decision making, and
examining how and why courts will decide to intervene.

In this course, we will consider three areas of fundamental

concern:

1. Procedural fairness

2. Substantive review of the decision

3. Available remedies
Intro to Admin Law
1. Procedural Fairness

• Under what circumstances are governmental ADMs

subject to an obligation of procedural fairness to those
who are affected by their decisions?

• What is the content of that obligation to be fair?

• Is this an issue courts should review and, if so, did the

ADM use the proper procedure in reaching a decision?
Intro to Admin Law
2. Substantive Review of the Decision

• To what extent are the substantive decisions of an ADM

subject to scrutiny by the court?

• Where they are subject to such scrutiny, how will courts

review them – what is the standard of review?

• In the decision itself, did the ADM make an error of the

kind or magnitude that would compel a court to intervene?
Intro to Admin Law
3. Available Remedies

• What is the remedial framework within which the courts,

both federally and provincially, exercise their powers of
review?

• If there are procedural or substantive defects in the

decision, should the court intervene and, if so, how?

• What remedies are available?

The Power to Review
The power of the courts to review ADMs comes from three
sources:

1. Statutory right of appeal

2. Original jurisdiction (civil claims)

3. Inherent judicial review jurisdiction

The Power to Review
Statutory Right of Appeal:

• Since the 1970s, statutory rights of appeal to the courts from ADMs have become
a familiar feature.

• Many people think there is always a right of appeal. Often there is not. There is
no automatic right to appeal the substance of an administrative decision to the
courts. Indeed, some statutes might prohibit an appeal.

• A right to appeal must be provided for in a statute. Thus, the first step in
determining whether a statutory right to appeal exists is to review the statute
establishing the administrative agency and see whether any right of appeal is
provided for, and if so, on what grounds.

• Appeal clauses can be broad (e.g., allow a court to review any issue or substitute
its opinion for the ADM) or narrow (e.g., allow review on only a question of law).
The Power to Review
Statutory Right of Appeal:

• As an example of a statute that prohibits an appeal, look at

the Human Rights Tribunal of Ontario and its enabling
statute, the Human Rights Code. Section 45.8 reads as
follows:

Subject to section 45.7 of this Act, section 21.1 of the

Statutory Powers Procedure Act
and the Tribunal rules, a decision of the Tribunal is final and not subject
to appeal and shall not be altered or set aside in an application for judi
cial review or in any other proceeding unless the decision is patently un
reasonable.

• We’ll talk about this type of “privative clause” in greater

The Power to Review
Statutory Right of Appeal:

• For a more common example of an appeal clause, see s. 11 of the Licence Appeal
Tribunal Act:
https://www.canlii.org/en/on/laws/stat/so-1999-c-12-sch-g/latest/so-1999-c-12-sch-g.
html

• From this we see that that the enabling legislation provides a statutory right of appeal
from the LAT. The Act specifies that a statutory appeal from a decision of the LAT
lies to the Ontario Superior Court, Divisional Court.

• Some other appeal clauses require “leave.” See for example s. 37 of the Local
Planning Appeal Tribunal Act, 2017:
https://www.canlii.org/en/on/laws/stat/so-2017-c-23-sch-1/latest/so-2017-c-23-sch-1.
html

• Note: the Divisional Court cannot be called upon to review findings of fact unless
authorized to do so. The scope of the clause governs.
The Power to Review
Original Jurisdiction:

• Generally speaking, this refers to the a courts exclusive ability to hear a case at
first instance.

• However, it also refers to the jurisdiction that superior courts have over the
decisions of ADMs when a citizen or a company challenges a decision by way of
direct action based on contract, tort, the Charter or some other cause of action
on the ground that the state has infringed an individual’s private legal right.

• For example: assume that the Ontario government enters into an agreement
with a private construction company to build several bridges over a period of
years. A few years into the agreement, a government decision-maker cancels it.
The construction company may have a legal right to proceed against the
government under contract law. The court hearing the matter will have original
jurisdiction over the case and the decision makers.
The Power to Review
Inherent Judicial Review Jurisdiction:

• As a default, the superior courts in each province may

also rely on their inherent jurisdiction, inherited from the
English royal courts of justice, to review decisions made
by institutions and officials responsible for administering
public programs.

• The term “inherent jurisdiction” refers to the fact that the

jurisdiction of the superior courts, which are made up of
federally appointed judges, is broader than whatever may
be conferred by statute.
The Power to Review
Inherent Judicial Review
Jurisdiction:

• However, inherent
jurisdiction is not
jurisdiction for a general
appeal.

• A court cannot simply

substitute its own decision
for that of an agency - it’s
complicated.
The Power to Review
Inherent Judicial Review Jurisdiction:

• Superior courts may, by making use of their discretionary

power, hear any matter unless there is a specific statute
that says otherwise or grants exclusive jurisdiction to
another court or tribunal.

• Additional problems may also be presented in the form of

a privative clause that limits the ability of individuals to
challenge an ADM’s decisions. Historically, legislatures
relied on these clauses to prevent courts from interfering
with the decisions of ADMs.
The Power to Review
Inherent Judicial Review Jurisdiction:

• So why do “superior” courts undertake this role of keeping

“inferior” administrative boards and tribunals in check, even
when the legislature has told them not to?

• Again, the rule of law. Courts see their role as making sure
that ADMs do not step outside their jurisdiction (i.e., powers
conferred to them by legislation) and exercise power they have
not been granted.

• The fundamental source of power: s. 96 of the Constitution

Act, 1867.
The Power to Review
Inherent Judicial Review Jurisdiction: Constitutional Tension

• There is no explicit reference to judicial review in the Constitution Act, 1867.

• However, there is an argument for implying a constitutionally guaranteed right

to judicial review of administrative action—one that trumps parliamentary
supremacy in this context—and it has centered on the provisions of the
Constitution Act, 1867, sections 96 to 101.
The Power to Review
Inherent Judicial Review Jurisdiction: Constitutional Tension

• Section 96 authorizes the federal government to appoint judges.

Appointment of Judges

96. The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province,
except those of the Courts of Probate in Nova Scotia and New Brunswick.

• Historically, section 96 has been interpreted as providing superior courts of inherent

jurisdiction with the constitutional authority to hear cases.

• The "section 96 courts" are typically characterized as the "anchor" of the justice system as their jurisdiction is said to
be "inherent", the courts have the authority to try all matters of law except where the jurisdiction has been taken
away or limited by another court or tribunal.

• However, even when that jurisdiction is limited, for example, through the federal courts
created by the federal government under section 101 or by the provincial government
under section 92(14), the core jurisdiction of a section 96 court remains.
The Power to Review
Inherent judicial review Jurisdiction: Constitutional Tension

• “Real” superior courts created through s. 96 have not appreciated

the provinces’ attempts to create unreviewable tribunals.

• The concern: provinces have created de facto s. 96 courts by

calling them “administrative tribunals,” particularly by inserting
privative clauses making them immune from judicial review, just
like superior s. 96 courts.

• But the superior courts are always able to determine whether an

administrative tribunal is actually acting like a s. 96 court, and is
therefore unconstitutional because the province was without
jurisdiction to create it.
The Power to Review
Inherent judicial review Jurisdiction

• The leading case on administrative tribunals masquerading

as s. 96 courts is Crevier v. A.G. (Québec) et al., [1981] 2
SCR 220

• The facts:
• Quebec legislation created a tribunal to hear appeals from the
discipline committees of most statutory professional bodies in Quebec.
• This tribunal was composed of provincially appointed judges.
• The enabling Act included a privative clause stating, in effect, that the
tribunal’s decisions were final, even those that dealt with questions
about the tribunal’s own jurisdiction.
The Power to Review
Inherent judicial review Jurisdiction:

• The decision:

• Chief Justice Laskin, for the Court, noted that a provincial government, in creating an administrative
tribunal, could include a privative clause if it still allowed the superior courts to review questions of
jurisdiction, even if there was limited judicial review of all other kinds of decisions from the tribunal.

• But, if the wording of a privative clause tried to oust review by the superior courts over even strict
jurisdictional questions, then the clause was not constitutionally valid because the province had de
facto created a s. 96 court.

• The Court concluded that to give a provincial tribunal unlimited jurisdiction to interpret and apply
law and then preclude any supervision by provincial superior courts created a s. 96 court and this
was unconstitutional.

• The case stands for the proposition that there is a constitutionally recognized right to judicial
review, at least of questions of jurisdiction that cannot be displaced by a privative clause, no matter
how it is worded. However, the proposition has been read more broadly.
The Power to Review
Inherent Judicial Review Jurisdiction:

• The doctrine of parliamentary supremacy means that there is nothing preventing

legislatures from enacting whatever legislative clauses they wish, including privative
clauses.

• But what happens when those privative clauses oust judicial review?

• Unlike ADMs, courts get their inherent power from s. 96 of the constitution, so when they
are considering reviewing an ADM’s decision, the courts find themselves stuck, at least
historically, between the intention of parliament to limit the review of ADMs and the
supervisory role granted to them by the constitution.

• This gives rise to a constitutional tension we recognized earlier: parliamentary

supremacy and government policy imperatives vs. rule of law and judicial protective
obligations.
The Power to Review
• So we now have an answer to why the courts police the boundaries of
ADMs.

• But what about how? How do the courts police ADMs and justify their
intervention?

• As you go through the materials of this course, you will see that courts
have wide discretion in how they approach their role and that, as a
result, in different time periods we observe different approaches to the
courts’ policing of ADMs.

• You will also learn that in certain periods of Canadian administrative law
history, the courts have struggled to find a practical way to reconcile the
system of ADMs and government objectives with judicial review that
maintained the rule of law.
Intro to Challenging ADMs
Some of the questions you may have at this point are:

• What ADMs and decisions or actions can be challenged?

• On what grounds can you challenge an ADM’s action or decision?

• How do you go about challenging and ADM’s decision or action?

• What are the different procedures or avenues available for challenging an ADM’s decision?

• Do I challenge the decision or action internally (within the same tribunal), or do I go to court
(through an appeal, a judicial review)?

• Is there a difference between provincial and federal challenges?

• What remedies are available?

Intro to Challenging ADMs
CHALLENGING
CHALLENGING ADMIN
ADMIN ACTION
ACTION
DECISION
DECISION

EXTERNAL
EXTERNAL NON
NON COURT
COURT
INTERNAL
INTERNAL TRIBUNAL
TRIBUNAL EXTERNAL
MECHANISMS EXTERNAL COURT
COURT
MECHANISMS
MECHANISMS MECHANISMS
MECHANISMS
MECHANISMS

ENABLING
ENABLING STATUTE:
STATUTE:
RECONSIDER
RECONSIDER PRIVATE
PRIVATE LAW
LAW //
RE-HEAR
RE-HEAR
APPEAL JUDICIAL
JUDICIAL REVIEW
REVIEW CIVIL
CIVIL
APPEAL STATUTORY
STATUTORY ACTION
ACTION
APPEALS
APPEALS

DISCRETION
DISCRETION TO
TO DENY
DENY

REMEDIES
REMEDIES
MONEY
MONEY
SUBSTATNIVE
SUBSTATNIVE REVIEW
REVIEW PROCEDURAL
PROCEDURAL FAIRNESS
FAIRNESS

REMEDIES/WRITS
REMEDIES/WRITS
REMEDIES/WRITS
REMEDIES/WRITS
Intro to Challenging ADMs
On what grounds can you challenge an ADM’s
action/decision?

• Today, an ADM’s action or decision may be challenged either

with respect to a procedural defect (that is a defect in the
process – a matter of procedural fairness) or with respect to a
substantive defect (that is, a defect in the substance of the
decision itself).

• Substantive errors are errors of fact, law, or discretion, although

these are sometimes labelled in different ways.

• A substantive defect is subject to a standard of review analysis.

Intro to Challenging ADMs
• Historically, admin law focused primarily on procedural review,
with the assumption that if a sound process is followed, a fair
decision will be reached.

• In a substantive review, the courts look at the decision itself, not

just at the procedures that were followed in reaching the
decision.

• Courts were quite eager to assert their influence in the

administrative sphere using the intra vires – ultra vires doctrines.

• However, all of this began to change with the administrative law

revolution that took place in the 1960s and 1970s – a basic
codification of procedures for administrative tribunals in a
number of provinces.

• In addition, the creation of the Federal Court Act allowed for the
almost complete transfer of remedial jurisdiction over federal
statutory decision makers from the provincial superior courts to
the newly created Federal Court of Canada.
Intro to Challenging ADMs
• The culmination of change was the landmark
Supreme Court decision C.U.P.E. v. N.B. Liquor
Corporation, [1979] 2 SCR 227.

• This case acknowledged that, often, there is no one

right answer in terms of legal interpretation but a
range of different reasonable interpretations, and
that the view or choice of an administrative decision-
maker may be as legitimate as that of a court.

• This case should have ushered in a new era of

judicial deference toward administrative tribunals.

• However, the road toward this goal has been rocky.

Intro to Challenging ADMs
Grounds for challenging ADMs:

• An ADM’s action or decision can be challenged for procedural

defects or substantive errors:

• Procedural: Challenging an ADM’s decision on the basis of procedural fairness

means seeking to address some defect in the right to be heard (for example, a
notice of the hearing wasn’t sent) or the right to an unbiased decision maker (for
example, your decision maker is related to one of the parties).

• Substantive: Challenging an ADM’s decision on the basis of the substantive

decision means challenging the actual decision itself, not the process.

• This is where admin law gets complicated, because it’s not just
about whether the decision itself was wrong or right.
Intro to Challenging ADMs
Grounds for challenging ADMs:

• When challenging a procedure of the ADM, the reviewing court

will first consider whether fairness was owed and, if so, then
what fairness looks like in the particular context of that decision.

• When challenging the substantive decision, this is where admin

law gets further complicated, because it’s not just about whether
the decision itself was wrong or right. It’s about whether or not
a court will intervene to review the ADM’s decision, and that will
depend on a standard of review analysis and the deference --
or the respect -- that a court will give to the ADM.
Intro to Challenging ADMs
The Standard of Review

• Keep in mind that determining the standard of review is

important only when challenging an ADM’s decision on the
basis of substance, not procedure.

• The question of which standard of review the court should apply

is often framed in terms of how much “deference” or “respect”
the reviewing court should show to the tribunal.

• When a challenge is based on a substantive defect, the courts

ask themselves what the standard of review is – that is, how big
an error must the tribunal make before the court intervenes?
Intro to Challenging ADMs
The Standard of Review:

Following the Supreme Court’s 2008 decision in Dunsmuir

v. New Brunswick, 2008 SCC 9, there are now two
standards of review:

• Correctness. The standard of correctness is an exacting standard

of review.

• Reasonableness. The standard of reasonableness is a more

respectful or forgiving standard of review.
Intro to Challenging ADMs
The standard of review:

HIGH
HIGH DEFERENCE
•• REASONABELENSS
REASONABELENSS
LOW
LOW DEFERENCE
DEFERENCE
•• CORRECTNESS
CORRECTNESS

• Correctness: the reviewing court will ask: Was the ADM’s decision the
correct decision—the same decision that the court would have reached?

• Reasonableness: the reviewing court will ask: Did the tribunal’s decision
fall within a range of reasonable alternatives?
Intro to Challenging ADMs
How do you go about challenging and ADM’s decision or
action?

• Admin law focuses on challenges that are made through

applications for judicial review.

• However, we can see from the flow chart that judicial review
is only one method of challenging an administrative action.

• There are various mechanisms upon which one can

challenge an ADM, both internal to the ADM, and external
through the courts.
Intro to Challenging ADMs
• When we talk about using the courts to challenge ADMs,
we need to keep in mind that there are three possible
avenues for doing so:

• Statutory Appeals

• Civil Actions

• Judicial Review
Intro to Challenging ADMs
Judicial Review

Will challenging the ADM via judicial review help achieve

success?

• Not always. It depends on the remedy that you want.

• In order to bring a successful judicial review application, a

challenger must be aware of the specific remedial mechanisms
available to the ADM, and how those mechanisms will help
achieve the desired result.

• A tribunal—an ADM—is a creature of statute.

Intro to Challenging ADMs
Will judicial review help achieve success?

• Because an ADM is a creature of its enabling statute, it cannot make

orders that affect individuals’ rights or obligations without authority from
its enabling statute.

• If a tribunal makes orders outside the scope of its enabling statute, it is

exceeding its jurisdiction, and those orders will be void.

• As a result, it is not always possible to achieve the desired result through

an application for judicial review.

• This is because even if you are successful, you are still limited to those
remedies within the tribunal’s jurisdiction (as dictated by its enabling
statute).
Intro to Challenging ADMs
 Will judicial review help achieve success?

• An ADM may consider an applicant’s argument (for

example, a Charter argument), but might not be able to
grant the requested remedy because the remedy—in this
case, an absolute discharge—might not be available
under the tribunal’s enabling legislation.

• Consider the example of R. v. Conway, 2010 SCC 22.

Intro to Challenging ADMs
• R. v. Conway, 2010 SCC 22:

• The facts:

• The appellant, Conway, was found not guilty by reason of insanity on a charge
of sexual assault.
• After spending more than 20 years in mental health facilities, Conway brought
proceedings before the Ontario Review Board alleging that the living and
treatment conditions at the mental health centre where he was being detained
breached his rights under the Canadian Charter of Rights and Freedoms.
• He argued that the Board should grant him an absolute discharge under s.
24(1) of the Charter.
• The Ontario Review Board held that it was not a "court of competent
jurisdiction" within the meaning of s. 24(1) and had no jurisdiction to consider
his Charter claims.
• The Ontario Court of Appeal agreed with the Board.
Intro to Challenging ADMs
• However, the Supreme Court of Canada did not agree.

• It held that administrative tribunals with the authority to decide questions of law are courts of
competent jurisdiction within the meaning of s. 24(1) of the Charter and can grant Charter
remedies in the course of carrying out their statutory mandates.

• Whether a tribunal has jurisdiction to grant a particular remedy will depend on the intent of the
legislature, having regard to the tribunal's statutory mandate and function.

• As a specialized tribunal with authority to decide questions of law, the Ontario Review Board
was a court of competent jurisdiction within the meaning of s. 24(1) of the Charter.

• However, having regard to the Board's statutory mandate to protect the public from dangerous
offenders and to treat patients found not criminally responsible fairly and appropriately, it did
not have authority to grant an absolute discharge to dangerous patients.

• Since Conway was considered to pose a threat to public safety, he could not obtain an
absolute discharge from the Board.
Intro to Challenging ADMs
Breach of Procedural Fairness. Will judicial review help achieve success?

• Parties seeking to challenge administrative action should remember that a

violation of procedural fairness will not guarantee a substantive outcome,
because the role of the court is to supervise the decision-making process – to
ensure that the decision has been made using the proper process, not to ensure
that the proper decision has been made.

• For example:

• A motion to quash a tribunal’s decision for lack of procedural fairness, if successful, will likely
lead to the court sending the matter back to the original tribunal for rehearing, not to the court
substituting its own decision for that of the tribunal.

• This result, however, may not satisfy the challenger. Even assuming that
procedural fairness is observed the second time, there is no guarantee that the
party will receive the desired substantive outcome.
Intro to Challenging ADMs
Overlap between substantive review and procedural fairness review:

• Judicial review of substantive error can and does occasionally overlap with that other main branch of
administrative law, judicial review of procedural fairness.

• One element of procedural fairness is the duty to give reasons. But a failure to give reasons, or a
failure to give reasons that sufficiently explain the decision, can also lead to a finding of
unreasonableness (after substantive review).

• For example, in Del Vecchio v. Canada (Public Safety and Emergency Preparedness), 2011 FC
1135, the minister’s decision appeared arbitrary to the Court (and to Mr. Del Vecchio), because the
minister had failed to explain why Mr. Del Vecchio was being treated differently than his accomplices.

• The minister had provided some reasons, meaning that procedural fairness was met, but those
reasons were inadequate, meaning that the decision was unreasonable.

• Had the minister observed procedural fairness—the duty to give reasons—more fully, his decision
may not have appeared arbitrary and may, in fact, have been reasonable.

• See: The Globe and Mail - Del Vecchio

 Challenging ADMs
CHALLENGING
CHALLENGING ADMIN
ADMIN ACTION
ACTION
DECISION
DECISION

EXTERNAL
EXTERNAL NON
NON COURT
COURT
INTERNAL
INTERNAL TRIBUNAL
TRIBUNAL EXTERNAL
MECHANISMS EXTERNAL COURT
COURT
MECHANISMS
MECHANISMS MECHANISMS
MECHANISMS
MECHANISMS

ENABLING
ENABLING STATUTE:
STATUTE:
RECONSIDER
RECONSIDER PRIVATE
PRIVATE LAW
LAW //
RE-HEAR
RE-HEAR JUDICIAL
JUDICIAL REVIEW
REVIEW CIVIL
CIVIL
APPEAL
APPEAL STATUTORY
STATUTORY ACTION
ACTION
APPEALS
APPEALS

DISCRETION
DISCRETION TO
TO DENY
DENY

REMEDIES
REMEDIES
MONEY
MONEY
SUBSTATNIVE
SUBSTATNIVE REVIEW
REVIEW PROCEDURAL
PROCEDURAL FAIRNESS
FAIRNESS

REMEDIES/WRITS
REMEDIES/WRITS
REMEDIES/WRITS
REMEDIES/WRITS
Internal Tribunal Challenge
• An ADM’s decision can be challenged internally (within the
same tribunal if statute permits) and/or externally (through the
courts).

• Legislative drafters, in crafting tribunals’ enabling statutes, may

use various tools to limit or circumscribe the available scope of
court intervention in the tribunals’ decision-making processes.

• One common mechanism, as we have seen, is the privative

clause.

• Another technique is by providing for avenues of appeal that

are internal to the tribunal itself.
Internal Tribunal Challenge
• By providing for appeal mechanisms—and, in particular,
for internal appeal mechanisms with their own unique
(and sometimes uncourtlike) structures—the government
is able to maintain a greater degree of control over the
statutory scheme that it has constructed to address a
particular public issue.

• This limits recourse to judicial review, because the general

rule is that recourse to the courts is only available after a
party has exhausted all avenues of appeal, including
internal appeals and any appeals to the courts provided
for in the statute.
Internal Tribunal Challenge
• So, when thinking about challenging an ADM’s decision, start
with the following question:

Does the statute provide for an internal appeal process within

the statutory process, agency, or tribunal?

• Some enabling statutes specifically provide tribunals with the

ability to reconsider and rehear decisions they have made.

• This is most common where a particular tribunal has ongoing

regulatory responsibility over a particular domain, such as
public utilities regulation or employer–employee relations.
Internal Tribunal Challenge
• For example: the Public Service Labour Relations Act provides:

“[s]ubject to subsection (2) [which prohibits any retroactive effect for any
rights acquired], the Board may review, rescind or amend any of its orders
or decisions, or may re-hear any application before making an order in
respect of the application.”

• Absent such express statutory authority, a tribunal cannot

reconsider or alter a final decision made within its jurisdiction:
see Chandler v. Alberta Association of Architects, [1989] 2 SCR
848; Stanley v. Office of the Independent Police Review
Director, 2020 ONCA 252.

• Once it has made a final decision, the tribunal is functus officio.

Internal Tribunal Challenge
• Some administrative tribunals are part of multi-tiered administrative
agencies. Those tribunals’ enabling statutes may provide for appeals
internal to the administrative agency itself.

• For example:

• Parties appearing before Canada’s Immigration and Refugee Board Immigration

Division may appeal to its Immigration Appeal Division.

• Workplace Safety and Insurance Appeals Tribunal (the “WSIAT” or “Tribunal”) hears
and decides appeals from final decisions of the Workplace Safety and Insurance
Board (the “WSIB” or “Board”) under the Workplace Safety and Insurance Act, 1997.

• Similarly, provincial securities acts across the country provide that persons directly
affected by decisions made by Securities Commission staff may appeal to (or, in
some statutes, seek “review” from) the commission itself, to which staff reports.
Internal Tribunal Challenge
• These internal review proceedings do not necessarily preclude
subsequent appeals to the courts.

• For example, various provincial Securities Acts provide for appeals under
limited conditions from their internal appellate bodies to the courts.

• These are statutory appeals, and are an external court mechanism for
challenging an administrative action or decision.

• Where the statute does not provide for an appeal to the courts, the
parties’ only access to the courts is by means of judicial review.

• However, where a statute provides for reconsideration or appeals, a

challenger should generally exhaust those avenues before making an
application for judicial review.
Internal Tribunal Challenge
• When assessing the feasibility of an internal challenge consider the following:

• The existence of an internal appeal mechanism within the tribunal (for example,
reconsideration, rehearing, or appeal to a delegate/minister)

• The scope or type of the internal appeal mechanism (is it only with respect to a
mistake in law, or also a mistake in fact?)

• The timing of challenging the decision (does the enabling legislation set out the time
within which you must appeal and if you’re late, is there a provision about extending
the time).

• If interim decisions can be appealed, or only final decisions.

• Typically, you will find the answers to these questions in the enabling statute, in
the regulations, or in the practice and procedure rules of the Tribunal.