ADMIN LAW OUTLINEPart I: Introduction..............................................................................................................................................................4

The Administrative State and Rule of Law..................................................................................................................4General Purposes of Admin Law....................................................................................................................................4Admin Law v. Constitutional Law..................................................................................................................................4Who are ADMs...............................................................................................................................................................4Why Independent ADMs Exist.......................................................................................................................................4Advantages of ADMs......................................................................................................................................................5Non-Judicial Mechanisms for Control of Gov Powers...................................................................................................5Judicial Mechanisms for Control of Admin Actions.......................................................................................................5Primary Grounds for JR..................................................................................................................................................5Rule of Law vs. Functionalism........................................................................................................................................6

The Constitutional Basis for JR.....................................................................................................................................7Intro to JR: Baker.............................................................................................................................................................7

Baker (1999, SCC)............................................................................................................................................................................................................. 7

Part II: Procedural Review.................................................................................................................................................9Introduction......................................................................................................................................................................9

Rationales for PF.............................................................................................................................................................9Sources of PF Obligations...............................................................................................................................................9

Interaction Between Sources...........................................................................................................................................9The Historical Development of CL PF..........................................................................................................................9

Natural Justice.................................................................................................................................................................9Early English Common Law...........................................................................................................................................9Later English CL: Restrictive Approach.........................................................................................................................9Development of Duty of Fairness Approach – Less Restrictive...................................................................................10Expansion of Procedural Obligations in Canada...........................................................................................................10

Nicholson (SCC 1979) Canada adopts duty of PF for admin decisions; implies difference bw PF and NJ..............................10Development of Modern Approach to PF.....................................................................................................................10

Inuit Tapirisat (SCC 1980) If the decision is legislative & general in nature PF does not apply.................................................11Winneke (Australia, 1982) Australia Cabinet decision found NOT to be legislative........................................................................11Homex (SCC 1980) Legislative decisions are NOT immune from PF if they are individualized in substance......................11Regulated Importers (FCTD 1993, FCA 1994) Serious impact on small group FC – yes PF, FCA – no PF...............................11Re Abel (ONCA 1979) PF found to apply at preliminary stage b/c of proximity b/w stages.......................................................12Irvine (SCC 1987) Low PF required b/c early investigatory stage..........................................................................................................12Re Webb (ONCA 1978) PF triggered because of forfeiture of a real and substantial benefit.......................................................13McInnes (1978, Eng Chancery) Classification of forfeiture, pure application, and expectation plus slur cases..................13Hutfield (1986, Alta QB) Denial of a doc’s application for hospital privileges PF required....................................................13Lazarov (FCTD 1973) Denial of a citizenship application for security reasons PF required; “slur”...................................14Everett (FCA 1994) Refusal to renew a fishing license for past misconduct PF required, “slur”.........................................14Desjardins (FCA 1983) Revocation of a pardon PF required; forfeiture of an important status, slur................................14Mavi (SCC 2011) PF applies because there is some discretion in the statute.....................................................................................14

Legitimate Expectations Doctrine (LED)...................................................................................................................15Re CAP (SCC, 1991) LED is procedural only and can’t be used to fetter gov from enacting legislation..................................16Baker (SCC 1999) LED never generates a claim to a substantive outcome, only hearing entitlements..................................16Mount Sinai (SCC 2001) Discussion of LED........................................................................................................................................................16CUPE v. Ontario (Min of Labour) (SCC 2003) Must be a clear, unambiguous, unqualified practice or promise..................16Mavi (2011) LED invoked successfully because of wording in the undertakings signed by the sponsors............................17

Constitutional and Quasi-Constitutional Procedural Protections..................................................................................17MacBain CBR applied to overrule statutory authorization defence in federal statute....................................................................17Authorson (2003, SCC) The CBR is of no assistance in DM contexts that are completely legislative in nature...................18Singh (1985 SCC) Framework for a s. 7 analysis set out and applied; oral hearing where credibility at stake...................18Charkaoui (SCC 2007) How to deal with security concerns when s. 7 is engaged............................................................................20G.(J.) (SCC 1999) S. 7 rights for a parent (security of the person); state-funded counsel, “mootness”....................................20Blencoe (SCC 2000) What amounts to undue delay in CL procedural fairness..................................................................................21

Determining Where Along the PF Spectrum You Are: Baker......................................................................................23Specific Content of PF..................................................................................................................................................24

Re Hardy (BCSC 1985) Mass notice will suffice as long it comes to the attention of affected peoples....................................24Re Central Ontario Coalition (1984, Ont Div Ct) If notice not accurate, it will be “inherently defective”...............................24Ex Parte Taylor (1970 ONCA) Adequacy of notice will vary, consider expected knowledge of person involved...............24Chester (1984, Ont HC) Adequacy of notice will vary in terms of what the hearing is about......................................................24Krever Commission - Reflects how context-specific notice issues are...................................................................................................24CALPA (SCC 1993) There must be express or implied authority in a statute for an agency to make a discovery order. 25Northwestern General Hospital - Unique human rights law situation; no privilege, disclosure jurisdiction upheld........25Ciba Geigy - Different outcome than NW Gen Hosp re: disclosure; consider the CONTEXT (regulatory, economic…)....26May v. Ferndale - Stinchcombe does not apply to admin processes, it’s principles might............................................................26Khan (ONCA 1997) When CREDIBILITY is at stake and it’s an IMPORTANT DECISION, oral hearing is necessary..........26Howard v. Stony Mountain Institution (1985, FCA) Applies the test for when you have a right to counsel.........................27Kane (SCC 1980) PF violated if no disclosure and a serious interest is at stake................................................................................27Re Napoli (BCCA 1981) Disclosure required b/c of nature of circumstances; need info to adequately respond...............27Charkaoui #2 (SCC 2008) Disclosure vs. national security, content of PF (under s.7) varies......................................................28Innisfil (SCC 1981) CE allowed because of statutory wording..................................................................................................................28MacLab Enterprises (ABCA 1971) CE is to counter information given to the DM; consider other means.............................28Baker (SCC 1999) Entitlement to reasons and adequacy of reasons depends on the context.....................................................29Lake (2008, SCC) Consider whether “purpose” of reasons is met. Ministers not held to the same standard as judges...29VIA Rail (FCA 2001) Reasons given were “overbroad” and thus inadequate.....................................................................................29

Remedies & Remedial Discretion.................................................................................................................................29Zahab (1991, Ont Div Ct) Even though an appeal de novo was proceeding concurrently, court granted JR........................29Harelkin (SCC 1979) Factors to consider re: adequate alternative remedy........................................................................................30Cardinal v. Kent Institution (SCC 1985) Futility argument.........................................................................................................................30Lakeside Hutterite Colony v. Hofer (SCC 1992) PF required even if the ultimate conclusion would be the same.............30Mobil Oil (SCC 1994) Exception to the Futility Rule where BY LAW the outcome MUST be the same even w/PF............30

Nemo Judex In Sua Causa (Bias)..................................................................................................................................31Baker (SCC 1999) Affirmation of the RAOB test from Committee for Justice and Liberty; bias found....................................31R.D.S. (SCC 1997) Judge NOT found biased after statements made about race & POs....................................................................31Moreau-Berube (SCC 2002) Derogatory comments by a judge (+ apology) found to lead to a RAOB.....................................31Bennett and Doman (BCCA 1993) Indirect pecuniary interest when competitor is a d-m...........................................................31Marques v. Dylex (Ont Div Ct 1977) Association between party and d-m............................................................................................32Yusef (Man CA 1967) Personal animosity case................................................................................................................................................32BC Nurses Union (BCCA 1977) Prior involvement, new panel needed, issue of credibility.........................................................32Township of Vespra (Ont Div Ct 1983)Prior involvement, new panel needed, statements + refusal of evidence.............32Committee For Justice and Liberty (1978, SCC) Prior involvement case, RAOB................................................................................32Wewaykum (2003, SCC) Prior involvement case: application of the two-part test; RAOB NOT found...................................33Brosseau (1989, SCC) There can be overlapping functions (no RAOB) if statutory authorization...........................................33Quebec Inc. (1996, SCC) Overlapping functions case: “institutional impartiality” test...................................................................33Bell Canada v. CTEA (2003, SCC) Gov can make regs, appear before AT interpreting those regs w/o RAOB......................34Paine (ONCA 1980) Attitudinal bias case: in this case context allowed for tolerance of opinions from d-ms.....................34Gale Case (1993, Ont. Div. Ct) Attitudinal bias: involved with a similar case as a complainant..................................................35Large (1992, Div. Ct) Attitudinal bias case: strong views do NOT automatically create a RAOB...............................................35Energy Probe (1984 FCA).......................................................................................................................................................................................... 35Imperial Oil (2003, SCC) Pecuniary interest case: do a contextual analysis........................................................................................36Pearlman (SCC 1991) Can argue an INDIRECT pecuniary interest and then apply the RAOB test...........................................36Burnbrae Farms (1976, FCCA) Statutory scheme can preclude RAOB; pecuniary interest; institutional bias....................36Moskalyk-Walter (1975, Ont Div Ct) Pecuniary interest prevents peers sitting on AT..................................................................36Matsqui (1995, SCC) Indirect pecuniary interest too remote....................................................................................................................37OSBRA (1990, SCC) Relaxed standards test for Municipal Councillors..................................................................................................37Save Richmond (1990, SCC) Application of the “relaxed standard” test...............................................................................................37Newfoundland Telephone (SCC 1992)Relaxed standard: use “bifurcated approach” for policy-oriented ATs...................38Pelletier (2008, FCTD) RAOB found in the sponsorship scandal inquiry; regular test used because of the context.........38

Independence.................................................................................................................................................................38Matsqui (SCC 1995) Lack of institutional independence found wrt AT.................................................................................................38Quebec Inc (1996, SCC) Security of tenure and institutional independence both found...............................................................39Ocean Port Hotel (2001, SCC) Statutory authorization provided a complete defence....................................................................40Sethi (1988, FCTD) (Not on exam!)........................................................................................................................................................................40

The Legal Effect of Bias...............................................................................................................................................402

Retired Judges (2003, SCC) Statutory authorization can be trumped by rights documents........................................................40MacBain (1985, FCA) Prior involvement; Statutory authorization can be trumped by rights documents............................41

Part III: Substantive Review.............................................................................................................................................41Introduction to Substantive Review..........................................................................................................................41

Privative Clauses...........................................................................................................................................................42The Development of the Law.......................................................................................................................................42

Stage 1: Pre-CUPE (only correctness)..........................................................................................................................42Stage 2: CUPE (correctness and PU)............................................................................................................................42

CUPE v. New Brunswick Liquor Corp (SCC 1979) Recognition of PU standard, more functionalism......................................43Stage 3: Following CUPE.............................................................................................................................................43

Bibeault (1988, SCC) More conservative than CUPE, more rule of law, no deference to stat interp........................................43National Corn Growers Association (SCC, 1990) Deference accorded to stat interp question....................................................44Canada v. Mossop (1993, SCC) More rationales why court should show deference to ADMs.....................................................44Pezim (1994, SCC) RS identified as falling b/w PU and correctness; somewhat probing examination, clearly wrong....44Southam (SCC, 1997) Named the third SOR from Pezim “reasonableness simpliciter”, distinguishes PU............................45

Stage 4: Increasing Complexity in SOR determination................................................................................................46Pushpanathan (SCC 1998) Introduction of the mandatory P&F approach to determine SOR....................................................46Ryan (SCC 2003) Application of P&F approach................................................................................................................................................47

Stage 5: Pre-Dunsmuir Critiques of SOR Jurisprudence & BC’s Response.................................................................48Toronto (City) v. CUPE, Local 79 (2003, SCC) Lebel’s “Cri de Coeur” about the state of JR..........................................................48Manz (BCCA 2009) The PU standard survives where ATA applies, constitutional..........................................................................49

Stage 6: Dunsmuir & Simplifying SOR........................................................................................................................49Dunsmuir (SCC 2008) Modern approach to substantive JR........................................................................................................................50

Stage 7: Post-Dunsmuir Developments.........................................................................................................................51Khosa (SCC 2009) Dunsmuir test applies to JR under FCA.........................................................................................................................52Nolan v. Kerry (SCC, 2009) Dunsmuir applied in statutory appeal situation......................................................................................54Northrop (SCC 2009) Only case where a true question of jurisdiction is found................................................................................56Smith v. Alliance Pipeline (SCC 2011) Dunsmuir applied to appeal, costs issue...............................................................................56Mowat (2011) Costs case, SOR = reasonableness, BUT court appears to apply the correctness standard............................57Nor-Man (currently at SCC) Question of law of central importance to the legal system outside special expertise...........57

SOR & Discretionary Decisions...................................................................................................................................57Indicators of Statutory Discretion.................................................................................................................................58Judicial Control of Discretion.......................................................................................................................................58Evolution of the law:.....................................................................................................................................................58

Maple Lodge Farms (SCC, 1982)............................................................................................................................................................................. 59Thorne’s Hardware Ltd. v. The Queen (1983, SCC)........................................................................................................................................59Baker v. Minister of Immigration............................................................................................................................................................................60Suresh - says Baker wasn’t reweighing factors under the reasonableness approach.....................................................................62CUPE v. Ontario (Minister of Labour) (2003, SCC) (“Retired Judges” Case)........................................................................................62Khosa (SCC 2009) If discretionary decision + SOR = reasonableness + appropriate factors considered = don’t reweigh................................................................................................................................................................................................................................................ 63

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PART I: INTRODUCTION

THE ADMINISTRATIVE STATE AND RULE OF LAW

Admin Law is…- …a branch of public law

o Concerned with relations between the subject and the Stateo Seeks to regulate/control “gov action” that affects individuals, groups, and corporations

- …concerned with general principles of law that can be applied to decision-making in context-specific ways- …not concerned with the substantive law pertaining to particular subject matters

General Purposes of Admin Law1. To control gov power as exercised by the executive and admin branches of the state

o to confine gov’t power to its proper scopeo to curb potential for abuses of powero to ensure proper procedures in the exercise of powers that affect rights/interests of citizenso to ensure performance of mandatory statutory duties

2. To foster accountability and greater participation by parties in the d-m processes of gov that affect them3. To ensure that the admin branch of gov effectively performs the tasks assigned to it

Admin Law v. Constitutional Law- Both are types of public law- Unlike constitutional law, admin law is not usually concerned with the validity of statutes

o But sometimes rights docs are used to trump statutes that don’t accord sufficient PF- Admin law is concerned with exercises of power by gov officials/agencies made under statutory authority - Admin law is rooted in fundamental constitutional principles such as the rule of law, legislative

supremacy/parliamentary sovereignty subject to the division of powers and the Charter, the inherent jurisdiction of s. 96 superior courts and the principles of judicial independence

- There is a growing intersection between con law and admin law in certain contexts because of the Charter o i.e. s. 7 of the Charter in relation to guarantees of PF

Who are ADMs- Individuals, bodies, or agencies that exercise powers under statutes (delegated decision-making authority)- Tribunals, boards, commissions, cabinet (G in C, LG in C), ministers, departmental officials, professional

associations exercising statutory powers of self-regulation (i.e. Law Society), municipal govs, school boards, public inquiries, the legislature, crown corporations

- Nominally private organizations that exercise statutory powers are subject to admin law (i.e. Ontario Children’s Aid Societies)

- Universities are now usually treated as bound by admin law principles in much of what they do (e.g. decisions about tenure, promotions, or student discipline)

- Some of the principles of admin law are extended to domestic tribunals (private bodies that do not exercise statutory powers but hold quasi-monopolistic powers in relation to the governance of certain spheres of public activity i.e. sports associations, clubs, religious bodies)

- Not all actions of gov are dealt with by admin law o For example, where the gov acts in ways that are similar to the private sector, such as purchasing goods

or dealing with employees, the principles of private law would apply

Why Independent ADMs Exist- Legitimacy: there may be a need to insulate the decision from partisan politics and pressures

o I.e. where the decision pits the gov against the citizen, the credibility, legitimacy, and acceptability of the decisions made may be enhanced if the matter is distanced from the bureaucracy

- Better decisions: The ADM may be better able to draw upon expertise and/or develop more open and

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participatory processes to hear those who are interested - For political reasons: it is sometimes more convenient for gov to shed direct political responsibility for

decision-making in sensitive policy areas to avoid unfavourable publicity

Advantages of ADMs- Better able to deal with policy laden subject-matter which is not well-suited to resolution through an

adversarial judicial system (i.e. environmental impact assessments, setting utility rates, etc)- Expertise and specialization- Broader public participation is possible - Frees judicial resources: the large number of admin decisions made would clog the courts - Procedural and efficiency concerns: courts are formal, slow, expensive and require lawyers; a more informal,

more accessible, quicker and less expensive decision-making process may be desired - Ideology: sometimes the perceived ideology of the judiciary may be thought to be an impediment to the

legitimacy and effectiveness of the statutory scheme (i.e. labour relations)

Non-Judicial Mechanisms for Control of Gov Powers 1. General Legislative Oversight and Politics

- Scrutiny of legislation before enactment- Review of regulations by standing committees- Scrutiny of appointments to agencies- Annual or special reports to Parliament by agencies- Questions to Minister in the legislature- Elections and electoral politics

2. Ombudsman, Access to Information Legislation- OM has power to receive complaints from citizens – can investigate and make reports but no binding

authority- Access to information legislation can expose secrets

3. Informal Internal Control Mechanisms- Day to day management and accounting policies and procedures - Internal reviews of operations, policies, and individual decisions

4. Formal Non-Judicial Appeal Mechanisms- i.e. to a Minister or to Cabinet

Judicial Mechanisms for Control of Admin Actions1. Appeals

- No inherent right to appeal – the right to an appeal must be granted via a statute- Statutes state grounds the court has authorization to review on appeal- Court can substitute their own opinion on an appeal

2. The JR Jurisdiction of the Courts- This is constitutionally protected as part of the inherent powers of superior courts under s.96 (Crevier)- In the federal realm, this kind of jurisdiction is exercised by the FC operating under the Federal Courts Act

(this is similar to the inherent power that superior courts exert)3. The Original Jurisdiction of the Courts

- If an admin action amounts to a particular cause of action in private law the matter can be brought before the courts in an “ordinary” court action (Cooper)

Primary Grounds for JR1. Procedural JR - JR of the manner in which statutory powers of decision are exercised and by whom they have

been exercised (breach of PF obligations, breach of the “rule against bias”, lack of the requisite degree of independence, improperly constituted or authorized d/maker)

2. Substantive JR - Review of the substantive adequacy of the factual and legal basis of decisions made under statutory authority (review of “the merits” of the decision). Grounds for review can include: - Errors made in interpreting the scope and meaning of the statutory powers (errors of law/jurisdiction)- Reviewable errors of fact (i.e. deciding without a sufficient evidentiary basis)- Abuse of discretionary powers (unreasonable or unauthorized exercises of discretion)

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3. Unconstitutionality (breach of division of powers or Charter violations)

Rule of Law vs. Functionalism- Rule of law

o Means the law is supreme over officials of gov’t as well as private individuals (Manitoba Reference)o Requires the creation and maintenance of an actual order of positive laws (Manitoba Reference)o Rule of law requires that the relationship between the individual and the state be regulated by law

(Succession Reference)o Cannot be used to overrule the legislature (constrains primarily executive and judicial

branches) (Imperial Tobacco)- Traditional Understanding of the Rule of Law (Diceyan)

o Principle of legality: there must be lawful authority for all state actions that interfere with the rights and liberty of citizens (“Gov acts only when there is lawful authority”)

o Positive body of knowable law: “No one should be made to suffer except for a distinct breach of the law”o Broad discretionary power dangerous b/c might be used in an arbitrary/discriminatory manner, makes

accountability difficult, and the law more unpredictableo All power is legally limited; courts can determine the limits of gov power

- “No one is above the law”o Govs and citizens alike are subject to the ordinary law of the land administered by ordinary courtso It is the role of the “ordinary courts of the land” to impose the law on govo There should be no separate court system with separate rules for admin (public) lawo Courts are the “final arbiters” of what the law is o Courts act as the citizen’s bulwark against arbitrary gov and protect the rights of citizens against the

state- Rule of Law and Admin Tribunals

o Citizens have the right to be, and must be, governed by law, rather than by arbitrary exercises of powero Gov, like everyone else, must be subject to the ordinary law as applied by the ordinary courts (the

constitutional role of courts is to apply law to government to ensure government acts lawfully)o Courts must therefore ensure that ATs, as part of gov, act in accordance with law, both procedurally

and substantively [i.e. that they do not exceed the scope of the statutory authority the Legislature has granted them and thereby become “laws unto themselves” or sources of arbitrary power]

o Courts are the best equipped institutions to decide the “correct” meaning of statutory grants of power to ATs

o In doing this, courts ensure that legislative intent is achieved and legislative supremacy over the executive branch is maintained

- Quotes about rule of law in admin law from Dunsmuir:o “... all exercises of public authority must find their source in law”o “All d/making powers have legal limits, derived from the enabling statute itself, the common or civil

law or the Constitution.”o “JR is the means by which courts supervise those who exercise statutory powers, to ensure that they do

not overstep their legal authority.”o “The function of JR is therefore to ensure the legality, the reasonableness and the fairness of the

administrative process and its outcomes.” - Functionalist Understanding of the Rule of Law

o Functionalism focuses on making administrative systems work efficiently and effectively so as to achieve the remedial and regulatory purposes of the Legislature in creating them

o Functionalists presume the Legislature deliberately chose administrative decision-making processes, rather than courts, because the legislators wanted to achieve certain things, such as:

quicker, cheaper process, different methodology, specialized expertise, different ideologyo Strict adherence to a rule of law model threatens to impede achievement of these legislative goals,

because it enables courts to intervene too often and too deeply in administrative d/makingo Functionalists also challenge the key assumptions about the nature of law and the role of courts that

underpin the traditional rule of law model and advance opposing assumptions:

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There is very often not just one “correct” answer to statutory interpretation questions - different plausible interpretations are possible, and selection of the most appropriate interpretation often calls for policy choices and/or the exercise of discretion

Courts are not always the best equipped to make those policy choices in deciding the meaning of statutory language; sometimes administrative tribunals are better equipped to “breathe meaning” into statutory language because of the specialized expertise they have

o The traditional rule of law view fails to appreciate how the law is intertwined with policyo A central concern of admin law should be to promote the effective functioning of the modern stateo Courts have sometimes used admin law to uphold the status quo and curb the interventionist state

This thwarts the regulatory state in a way that is too restrictive o Courts should take a more restrained, limited, and “less interventionist” role in their oversight of ATso Specific functionalist concerns

Guided by laissez faire ideology, courts have sometimes too zealously guarded “CL values” against state encroachment

E.g. courts may act to protect private property rights and freedom of K in a way that unduly inhibits the regulatory state and its redistributive aims and purposes

o Courts have inappropriately imposed an adversarial adjudicative model on ADMs which interferes with the efficiency of the admin system and favours those who can afford to engage in litigation

- Tension Between the Two Concepts at the SCC levelo Functionalist: “Canadian courts have struggled over time to move away from the picture that Dicey

painted toward a more sophisticated understanding of the role of ATs in the modern Canadian state.  Part of this process has involved a growing recognition on the part of courts that they may simply not be as well equipped as ATs or agencies to deal with issues which Parliament has chosen to regulate through bodies exercising delegated power. Careful management of these sectors often requires the use of experts who have accumulated years of experience and a specialized understanding of the activities they supervise…Courts have also come to accept that they may not be as well qualified as a given agency to provide interpretations of that agency's constitutive statute that make sense given the broad policy context within which that agency must work.  (Wilson in National Corn Growers)

o Rule of law: “As a matter of constitutional law, JR is intimately connected with the preservation of the rule of law.  It is essentially that constitutional foundation which explains the purpose of JR and guides its function and operation.  JR seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various ADMs and endow them with broad powers.” (Dunsmuir)

THE CONSTITUTIONAL BASIS FOR JR

RULE: The judicature provisions of the Constitution Act 1867 (ss.96-101) guarantee the power of superior courts to conduct JR of provincial admin action on jurisdictional grounds (Crevier)

- Extends to provincial admin bodies (Crevier) AND federally constituted admin bodies (Macmillan Bloedel)- PCs CANNOT completely shelter an AT from all JR (Crevier) - A PC that attempts to immunize a prov AT from JR will be “read down” so as to preserve the power of the

superior courts to review tribunal decisions for “errors of jurisdiction” (Crevier)

INTRO TO JR: BAKER

Baker (1999, SCC)- Facts: B entered Canada from Jamaica as visitor in 1981 and stayed illegally; worked for 11 years; had 4

children in Canada. Diagnosed w/mental illness and went on welfare; father took custody of 2 children; other 2 placed in foster care, then returned to B when her condition improved. 1992: B was ordered deported when it was found that she had overstayed her visitor’s visa. 1993: B applied for exemption on H&C grounds to allow her to remain in Canada while applying for Permanent Resident [normally apply from outside Canada]

- Under Immigration Act the Minister has authority to facilitate admission to Canada of a person where the Minister is satisfied, owing to the existence of humanitarian and compassionate grounds, that admission

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should be facilitated or that an exemption from the regulations made under the Act should be granted o The immigration decision-making process in this case was as follows:

Baker made a written application accompanied by documentation for H and C consideration The documentation indicated (1) B was still ill but getting better; (2) B might get worse

if forced to return to Jamaica where she may not be able to get treatment; (3) B is the sole support of the 2 children in her care and is closely involved with her other 2 children in Canada; all 4 of her Canadian children would suffer if she were deported

The application was initially reviewed by junior IO Lorenz who made notes and recommended against granting the exemption; the whole package (including Lorenz’s notes and recommendation) went to senior IO Caden, who decided not to grant the exemption [Caden had been delegated the Minister’s authority to make the H and C decision]

April 1994 letter to B from IO Caden says insufficient grounds to warrant processing her application in Canada - no reasons given

B's counsel asks for reasons; Immigration sends B a copy of the notes made by IO Lorenz (said a variety of questionable things)

- Chain of statutory authority/delegations of power in this case were as follows:o Constitution Act 1867 – s. 91 Parliament has jurisdiction over immigrationo Parliament: enacts Immigration Act s.114(2); delegates statutory authority to Governor in Council

(fed. Cabinet) to make regulations o Governor in Council: makes regulations under s. 114(2) delegating authority to the Minister to make

H & C (humanitarian and compassion) decisions o Minister of Immigration: delegates authority to make H & C decisions to Immigration Officers

(departmental officials) and guidelines are issued that instruct the officers Note: Immigration Manual’s Guidelines for H & C Decisions: IO must carefully consider all

aspects of situation; ask self what a reasonable person would do; must consider 2 types of criteria that could lead to a favourable decision: (1) public policy considerations: e.g. marriage to a Canadian resident; the fact the applicant has become established in Canada (“an illegal de facto resident”); and (2) humanitarian and compassionate grounds: will undue hardship be caused to the applicant and/or her family if the applicant has to leave Canada?

o Junior Immigration Officer Lorenz: makes the initial review of Baker’s application in this case, makes notes and recommendations and passes file on to the Senior Immigration Officer Caden

o Senior Immigration Officer Caden: considers the whole file, including the notes and decisions of IO Lorenz, and makes the final H and C decision

- How the Baker got to the SCC:o Federal Courts Act provides for JR of decisions of fed ATs and sets out the grounds for such review o BUT Immigration Act s. 82.1(1) requires that leave is granted before decisions can be subject to JR

FCTD judge gave such leave and found against Bakero Federal Courts Act generally provides that decisions made by the FCTD on applications for JR can be

appealed to the FCA BUT the Immigration Act imposes a different and more restrictive rule in s.83(1) FCTD met this rule by stating a serious question of general importance: Given that the

Immigration Act does not expressly incorporate the language of Canada’s international obligations with respect to the International Convention of the Child, must federal immigration authorities treat the best interests of the Canadian child as a primary consideration in assessing an applicant under s. 114(2) of the Immigration Act?

o The stated question was considered by the FCA Court held they were confined to the stated question only, and could not hear a general appeal

of all the issues that were before the FCTD on the original JR application. Decided the stated question against Baker, and dismissed the appeal.

o Baker then sought leave to appeal the decision to the SCC. Appeals from the FCA to the SCC with leave are provided for under the Supreme Court Act. Leave was granted by the SCC.

- SCC Reasons: o Note: Both parties agreed that a duty of PF applies to H & C decisions. The fact that a decision is admin

in nature and affects “the rights, privileges or interests of an individual” is sufficient to trigger the duty of fairness (Cardinal)

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o Issue 1: What is the legal effect of a stated question under s. 83(1) of the Immigration Act on the scope of appellate review? Is the scope of the appeal in the FCA and the SCC limited because of s. 83(1)?

Held: the appeal is not limited to the serious question of general importance Once such a question has been stated, the appeal that follows is a full appeal

o Issue 2: Were the principles of PF violated? Yes Three parts to this issue:

(i) Were there sufficient participatory rights given? Yes (ii) Was there a duty to provide reasons that was breached? There was a duty but the

reasons were found to be adequate. (iii) Was there a RAOB in the making of the decision? Yes

o Issue 3: Was there an improper exercise of discretion [substantive]? Yes- Remedy:

o The decision of Immigration Officer Caden was set aside/quashedo The matter was sent back for re-determination by a different IOo Note the limited nature of JR remedies: the court did not simply substitute its own decision about what

was “humanitarian and compassionate”. The new DM could reach the same decision as before.

PART II: PROCEDURAL REVIEW

INTRODUCTION

Rationales for PF- Enforces democratic values (lets people participate in decisions that affect them)- Creates a system that treats like-cases in similar ways (based on a normative idea about justice)- Allows for individual autonomy- Promotes more informed decision-making and thus better decisions- Promotes order and enhances legitimacy, because people feel like they’ve been heard - Helps offset the power-imbalance between states and individuals- Forces the state to be accountable regarding exercises of power

SOURCES OF PF OBLIGATIONS1. Statutes and Regulations (Enabling acts, subordinate legislation, general statutes like the ATA)2. Rights Documents3. Common Law4. Policies/Practices of Agencies regarding Procedures (Policies are NOT law – but can relate to LED)

Interaction Between Sources- If the statute is silent or contains gaps…the CL will impose procedures for decision-making- If the statute overrules the CL procedures…the statute applies (based on legislative supremacy)- If someone has a constitutional right to a particular type of procedure that the Legislature has taken away…

the rights documents trumps the Legislature

THE HISTORICAL DEVELOPMENT OF CL PF

Natural Justice- The concept of “natural justice” has two primary principles or aspects:

1. Audi Alteram Partem the right to know and respond to the case against you2. Nemo Judex In Sua Causa the rule against bias

- Natural justice is the old terminology for “procedural fairness”

Early English Common Law- Hearing rights were generally inferred as a matter of justice, when the important rights of an individual were

being affected by the decision or action at issue, especially if allegations of “wrongdoing” at issue.

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- The courts could consider the following to determine if natural justice applied to the d-m: (Cooper)o The nature of what was at stake, the effect on the individual, the seriousness of the issueo Cooper: property rights at stake – should have the right to be heard

Later English CL: Restrictive Approach- Between 1920 – 1960; CL became much more restrictive about when procedures should be imposed- Common law focused on the classification of the function or decision being carried out- For “judicial” or “quasi-judicial” decisions: NJ applied, hearing rights were accorded, certiorari and

prohibition were available- For “admin”, “executive” or “ministerial” decisions: NJ did NOT apply, no hearing rights accorded, certiorari

and prohibition were NOT available- For natural justice to apply, the decision in question had to determine rights and involve a “superadded duty”

to act judicially in making the decision (Church Assembly)o If the decision was not a final decision (not “determinative”) - NJ did not applyo If the decision involved only “privileges” (as opposed to “rights”) - NJ did not applyo If no “superadded duty” to act judicially was found in the statute - NJ did not apply

Development of Duty of Fairness Approach – Less Restrictive- English CL “undid” the restrictions of Church Assembly- Got rid of the superadded duty to act judicially requirement (Ridge v. Baldwin)- Found a duty to act fairly even where not specifically “rights” in issue (Re H.K.)

Expansion of Procedural Obligations in Canada

Nicholson (SCC 1979) Canada adopts duty of PF for admin decisions; implies difference bw PF and NJ- Facts: Summary dismissal of PO, not given reasons for dismissal or notice, no opp to be heard. Relevant

regulations stated that POs could not be penalized without a hearing and an appeal but the Board of could dispense with services of any constable w/in eighteen months of being hired. In this case, PO was only 15 months into his term of service.

- Issue: did the decision attract any PF obligations, even though the legislation did not provide for any procedures?

- Outcome: Nicholson was entitled to be treated fairly - entitled to an opportunity to make submissionso Under the traditional approach this would have been it this was not a judicial decision, and so the

common law natural justice procedures did not apply. It was an admin decision and so Nicholson was not entitled to any protection.

o Majority of the SCC (5-4) held that a general duty of procedural fairness applies to admin decisions Got rid of the judicial vs. admin dichotomy; Admin decisions also attract PF

o NOTE: The SCC did not do away with the distinction btw admin and judicial decisions – instead, accepted as a general principle of CL that in the sphere of the judicial, the rules of natural justice run and in the admin sphere there is a general duty of fairness

pre-18 months = duty of fairness [a common law requirement] post-18 months = full hearing and appeal rights per the Regulations

o The content of the duty was something less than NJ; Board must give N reasons why he is no longer wanted and an opportunity to respond, orally or in writing, as the Board chooses

o Reasons for according procedures: Correctness (“the police board should want to make certain it has not made a mistake…”)

The decision would be final and that makes it all the more important that the decision is right, which suggests you should hear from the person

Moral claim (“status in office deserves this minimal protection”)- Dissent: The statutory language is clear; N doesn’t get NJ or a “duty of fairness”- This went back to the original d-m and they made the same decision to fire N. - Impact: after this case it remained unclear if there were two distinct levels of procedural protection (natural

justice for judicial DM, and a duty of PF for admin DM)

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Development of Modern Approach to PF- Further development in 1980s gradually did away with the need to distinguish between NJ and duty of fairness

(Martineau, Cardinal) unless a statute required a distinction. - Natural justice and PF are the same (Martineau)

o “In general courts ought not to distinguish between natural justice and the duty of fairness, for the drawing of a distinction yields an unwieldy conceptual framework.” (Martineau)

- “There is, as a general CL principle, a duty of PF lying in every public authority making an admin decision which is not of a legislative nature and which affects the rights, privileges and interests of an individual.” (Cardinal)

- Whether the decision would have been the same anyway does not negate the duty or content of PF (Cardinal)o Exception: when the outcome is a clearly stated “matter of law” and only one decision can be made

- Content may be affected in an emergency situation (Cardinal)

Inuit Tapirisat (SCC 1980) If the decision is legislative & general in nature PF does not apply. - Facts: CRTC allowed a rate increase without allowing the petitioning group to be heard. There was a statutory

right to petition the Governor in Council (Cabinet) to vary or rescind any decision of the CRTC. Cabinet heard from various sources – but the petitioning group was essentially left out of the proceedings.

- Issue: did the Minister owe the petitioning groups a duty of fairness under s. 64? - Outcome: no

o The nature of the decision was legislative. Factors: It was a decision that used to be made by Parliament Governor in Council has large amounts of discretion regarding the decision It was a general decision, not an individualized decision – lots of people affected. Rate-setting is largely a political decision This is “legislative action in its purest form”

o Furthermore, there are practical difficulties inherent in extending the duty of fairness Do not want to burden the cabinet with hearing requirements (efficiency concern) Do not want to undermine the Cabinet’s public policy-making role

Winneke (Australia, 1982) Australia Cabinet decision found NOT to be legislative- FAI had been licensed for 20 years when concerns arose about its financial fitness; the Minister gave it 6

months notice/time to improve. When it came time for approval, the Minister said he was going to recommend no approval from Cabinet for FAI. FAI requested more information; this was refused. The Australian Cabinet also denied FAI the opportunity to make submissions.

- Issue: was FAI denied PF? Yes - Reasons:

o This was an individualized decision; business and reputation was at stake…therefore, FAI should have had a chance to meet the objections that the Minister was making to Cabinet

o They could have delegated to a Committee or something similar to ensure PF was met without disrupting the general work of the Cabinet

o Note: part of the reason for FAI’s success was a “legitimate expectation” of renewal based on the succession of prior approvals [see legitimate expectation section below]

o The mere fact that Cabinet is making the decision doesn’t mean no PF; substance, not form, is crucial

Homex (SCC 1980) Legislative decisions are NOT immune from PF if they are individualized in substance- Facts: The city had been having a back and forth dispute with Homex. They passed a bylaw which constrained

Homex from advertising and attracting buyers. Homex argued they should have been given notice.- Issue: does the bylaw attract procedural fairness? - Outcome: yes – Homex had been denied PF

o Although the decision was legislative in form (bylaw) it was individualized in substance. The by-law was deliberately aimed at Homex.

o The hearing rights are regarding property rights consider Cooper, people have a right to be heard when property rights are at stake

o The mere presence of a public interest for the bylaw is not enough to eliminate PF

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- Remedy: even though Homex was not given PF, the bylaw was NOT quashed in this caseo Remedies are discretionaryo Consider the idea of “clean hands” Homex was denied a remedy because it had acted in bad faith

Regulated Importers (FCTD 1993, FCA 1994) Serious impact on small group FC – yes PF, FCA – no PF- Importers had an unregulated business environment. Minister decided to put in place a quota system with

respect to the importation of hatching eggs and chicks. The new system would affect the importers significantly; they would lose money. The Minister, before putting the new system in place, consulted with some agricultural organizations but he did not make an effort to consult specifically with the importers.

- Issue: is it legislative and general in nature?- Justice Reed (FCTD) held that the decision was NOT legislative:

o The decision would have had a considerable economic harm on a small group o They’re such a small group that they could have been consulted (wouldn’t have been impractical)o The effects that flow from the decision are important

Classifying a decision as being “policy” in nature does not immunize it from JR In this case, the effect of the decision was to visit considerable economic loss on the applicants

- FCA disagreed and classified the decision as a legislative decision: (No PF)o The Minister is exercising an essentially legislative or policy matter; remedies are political, not legalo Any type of policy change like this will affect individuals but that does NOT make it an individual

decision o In some cases, Parliament had specifically legislated that notice had to be given before changes were

made; therefore, Parliament’s intention in this case can be presumed to be different because they didn’t put that type of requirement in

Re Abel (ONCA 1979) PF found to apply at preliminary stage b/c of proximity b/w stages- Stage 1: inquiry and fact gathering by the Advisory Review Board; non-binding recommendation goes to LG- Stage 2: final decision by the Lieutenant Governor- Facts: Hearing held by the ARB. They got a report from the psychiatric institution about the patient.

Counsel for the patient wanted (1) a copy of the report from the psychiatric institution, and (2) to look at the patient’s files in the institution. The statute said no access to files, so (2) was denied.

- Issue: Did PF apply at the beginning of the two-stage process? Can the lawyer claim a CL right to PF that would allow him to get the report?

- Outcome: yes, CL does apply and maybe the lawyer should get the reporto Why did PF apply? Remember, this is a non-final decision because we’re at stage 1 there are a

number of things to consider in a situation like this (1) Consider what is at stake: in this case, it’s liberty (encourages PF) (2) Consider the process between the stages [this is the proximity question]: in this case,

the first stage is crucial; Cabinet will never release if the recommendations say no (encourages PF)

(3) Consider exposure to harm: it is considerable in this case (encourages PF)o Why might they get the report?

In a normal situation, it would be absolutely the case that PF in this type of situation with these types of stakes would give the patient’s lawyer the doc because the DM will rely on it

The reason for the “maybe” in this scenario is based on the reality of the context: The psychiatric institution may not have expected that the report would have ever been released; perhaps they put in stuff that they wouldn’t have if had known

- Remedy: The decision was quashed and sent back to the chair - Note: this case was pre-Charter; now the Charter would apply because we’re talking about incarceration

Irvine (SCC 1987) Low PF required b/c early investigatory stage- Facts: The statute itself said that witnesses get the right to have counsel and they have to testify under oath,

but the hearing officer limited the particular abilities of counsel present.- Issue: Does PF apply at this stage? If it does, are the restrictions on counsel a violation?- Outcome: some PF is required at CL but it was met in this case; appeal was dismissed

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- PF is variable; the content of PF here is minimal given what’s at stake at this stage- Consider: the nature of the investigatory proceedings (i.e. is it public or not); the nature of the

report that results; what kind of harm could occur to the individual as a result of that stageo In this case, it’s purely investigatory; it’s merely information gathering; it’s not even fact finding; no

determination is made; the report that results does not make any finding of fact; it’s private; most that will happen is it will be considered in future procedures; nothing bad can happen to the individual until full PF is given to the individual by someone else

o Therefore, this doesn’t need a whole lot of PF. No right to CE at that stage in the process because of what was at stake and the fact that it was all in camera.

o De Smith factors Proximity: not a full effect on the final outcome Exposure to harm: barely any because nothing will happen at this stage. Reputational

interests are valid, but in this case, the inquiry is going on in private

Re Webb (ONCA 1978) PF triggered because of forfeiture of a real and substantial benefit- Facts: Ontario Housing Corporation (OHC) owned subsidized apartments. The property manager wrote to

Webb, told her there had been lots of complaints about her children, said that if there was repetition he would have to take steps to terminate the lease. She was written to again, and then finally the OHC gave her a formal warning. Later that month, Meridian recommended termination of her lease, the OHC board of directors approved it.

- Issue: was Webb owed procedural fairness, and if yes, was it violated?- Held: There WAS a duty to act fairly, BUT this duty had been met

o Webb could NOT rely on any statutory procedural protections, so she had to resort to the CL – argued that the decision was quasi-judicial and so she was entitled to PF

Court rejected this – it is an admin decision. However, even though it is an admin decision and a property right is not at stake, there was a duty to act fairly very progressive

PF applies because it is a forfeiture of a real and substantial benefit and because the decision was important (it will have a serious adverse impact on Webb and her children)

o The OHC in exercising its power of termination was required to treat Webb fairly by telling her of the complaints/case against her and giving her an opportunity to make answer to those complaints

Therefore, the duty of fairness was met – she was given notice of the complaints (property manager wrote to her twice) and she could have defended the complaints.

McInnes (1978, Eng Chancery) Classification of forfeiture, pure application, and expectation plus slur cases- Facts: McInnes had applied to the British Boxing Board for a manager license. He had held other types of boxing

licenses in the past. He was denied the license. He sought a declaration in court to say he should have been given reasons and he should have been able to speak to the Board

- Classification set out in this case:o 1: “Forfeiture” Cases – PF

The decision takes away an existing right for reasons related to the individualo 2: “Pure Application” – No PF

The applicant seeks the license but has no basis for expecting a positive decision and a negative decision will not reflect negatively on the applicant

o 3: “Expectation” & “Slur” – PF (likely) This is somewhere between the other two An application case, but for some reason there’s an expectation of a favourable decision; usually

because of what has happened in the past There would be a slur on the reputation of the applicant if the license was taken away This is generally where a license renewal would fit in (Winneke) The longer the license has been held, the greater the interest in renewal and the stronger the

entitlement to PF- Outcome: this was a pure application case and no PF was required- Reason: There was no right to have a license contingent on specific criteria. Rather, there was a broad general

discretion on the part of the board about who they would license

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Hutfield (1986, Alta QB) Denial of a doc’s application for hospital privileges PF required- Facts: Dr. applied to the Board for hospital privileges. He has no statutory right that would enable him to get

privileges. The Board has a discretion about whether to grant hospital privileges. The Hospital Act makes the Board responsible for hospital affairs and it gives them the right to make bylaws. All applications were required to go through the College of Surgeons.

o Hutfield’s first application: the college says he’s okay but the Board rejects himo Hutfield’s second application: he is rejected again on the basis of an adverse recommendation from the

appointments committee; the Board hadn’t sent the application to the college; hearing was denied- Outcome: PF applies- Reasons: The board should have given reasons and allowed Hutfield to respond. PF was also violated because

the application was not sent to the college

Lazarov (FCTD 1973) Denial of a citizenship application for security reasons PF required; “slur”- Facts: Lazarov had applied for citizenship. The Citizenship Act said he had to meet certain criteria before the

Citizenship Court and if so, then the Act gave the Secretary of State discretion to grant citizenship (this is a broad discretionary power). The Citizenship Court cleared Lazarov so Lazarov could legitimately expect to get citizenship. The Secretary of State decided NOT to grant citizenship based on confidential info from the RCMP. Lazarov has no opportunity to respond to the RCMP information.

- Issue: was Lazarov denied procedural fairness?- Outcome: in favour of Lazarov

o It was clear that the information from the RCMP put Lazarov in a negative light (slur)o Lazarov needs at least “the jist” and he must have been given a chance to respondo Therefore, PF applies but with conditions due to confidentiality concerns (i.e. for national security)

Everett (FCA 1994) Refusal to renew a fishing license for past misconduct PF required, “slur”- Facts: Everett had a license. In 1990 he was charged with overfishing and lying on his forms about how many

fish had been caught. Procedures with the charges dragged on and because of delay, they ultimately didn’t proceed (he was never found “guilty”). In 1992 the Board told him that, because of what happened in 1990, they were going to request to the Minister that he should lose one license and he would have a lower the quota of how many fish he could catch on another license. He received copies of the Board’s recommendations. He responded in writing. The Minister considered it all and followed the Board’s recommendations. Everett wanted a full oral hearing.

- Issue: was Everett denied procedural fairness?- Outcome: PF was required BUT Everett received it

o Fishing licenses at issue – this relates to livelihood; loss of renewal relates to expectationo To the extent that the non-renewal was based on allegations of wrongdoing, ordinarily there would be

a strong claim for a hearing entitlement (credibility) unless credibility/facts not at issueo However, Everett had a number of opportunities to be heard. Credibility/facts weren’t contested.

Desjardins (FCA 1983) Revocation of a pardon PF required; forfeiture of an important status, slur- Facts: The Criminal Records Act said Cabinet could revoke a pardon on certain grounds; this procedure imposed

limited procedural obligations. The parole board followed a process to revoke a pardon. They recommended revoking the pardon; the cabinet decided to revoke. Desjardins applied for JR of the decision.

- Outcome: In favour of Desjardins. An important status was at stake, very individualized. Desjardins should have had PF. Note: if there would have been PF at the parole board level, that would likely have been enough Cabinet wouldn’t have needed to do anything else but in this case, he hadn’t been heard at any of the levels

- Remedy: The cabinet decision was quashed and remitted for hearing- Note: in the McInnes classification, this is a “forfeiture” case

Mavi (SCC 2011) PF applies because there is some discretion in the statuteFacts: Under an immigrant sponsorship program, sponsors sign an undertaking of support for immigrants for a specific amount of time. If the immigrant obtains social assistance during that time, you have to reimburse the gov. Crown was able to collect the debt by filing a certificate at the FC, which would immediately be a judgment of the

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court. Eight sponsors challenged this saying that the debt should be extinguished in certain circumstances and that there should have been notice and a chance to be heard before the certificate is filed at the FC. Issue: Does PF apply to this specific type of debt collection by the Crown which arises under the Immigration Act?Analysis:

- What decision is the subject of the PF claim? The decision to collect/enforce the debt. - What’s the nature of the claimant’s interest? Financial. - Key dispute: Is there a discretion to enforce or not? - Gov’s arguments

o This is just a duty to enforce, no discretion = no CL PFo Court should not import admin law into the K.o This a K (private law) not public law. (tried to rely on Dunsmuir – even if there is a public law flavor

to employment K, parties must rely on K)- Claimants arguments:

o There should be some discretion, and if you interpret the statute correctly, there is a discretion regarding a decision to defer payments or to make some sort of arrangement regarding payments

Held:- On the discretion issue, court concludes that there IS a narrow discretion about how/when to collect

o Statute says “may”o Statutory purpose is more consistently observed if there is a discretion (Note: Court using the

regulations to interpret the statutes! Essentially this is an executive interpretation of the legislative meaning. Binnie says that the regulations and the statute can be “mutually enforcing.”)

o So, because the discretion is there, that attracts PF.o Dunsmuir was interpreted very narrowly - only for employmento Court refuses to use the K to interpret the statute. It’s more the statutory obligations that

determine the K obligations. - Content of the PF in THIS case: a) notify sponsor of the claim, give them a time-limited opp to explain in

writing why they shouldn’t have to pay c) consider the circumstances d) notify the sponsor of the gov’s decision. There is NO duty to give reasons here.

LEGITIMATE EXPECTATIONS DOCTRINE (LED)- Why LED is not substantive (Binnie in Mount Sinai)

- Could result in a level of judicial intrusion into gov policy that would be inappropriate, outside a Charter challenge

- Using a Minister’s prior conduct against him may strike the wrong balance b/w the private and public interest. There may be an “overriding public interest” that should prevail over the private interest

- Might blur the role of the court with the role of the Minister- Gov officials often need to give advice; errors are inevitable; courts don’t want to put a “chilling effect”

on gov freely giving advice to people about govt programs (Crane)- Issue of what level of official would be able to bind the gov (Crane)- Advice may be given sometimes without all the facts known before the advice is given (Crane)- Gov needs to be able to change policies to meet changing circumstances and changing public interest

(Crane)- The courts could potentially usurp the role of the designated d/maker – and the court is not the holder

of the delegated d/making power (Crane)

Because of comments by Sopinka in Re CAP there is some question about whether the LED can apply to “legislative and general” decision-making more broadly (beyond enacting statutes). [Crane thinks it should!]Sopinka noted, in the context of discussing the LED, that PF does not apply to a “body exercising purely legislative functions” and did not limit his reference in that respect to the creation of statutes. Instead, his comments appeared to embrace all “legislative and general” decision-making, given his citation of Inuit Tapirisat and his reference to a passage from Martineau in which Dickson J. noted that “a purely ministerial decision on broad grounds of public policy will typically afford the individual no procedural protection”. Binnie in Mt Sinai expressly referred to the confusion arising from these comments in Re CAP, but left the question open.Sopinka might have meant “legislative decisions” as decisions to enact legislation (to which LED doesn’t apply) BUT it could be interpreted more broadly to mean that LED doesn’t apply to all sorts of general and legislative decision-making

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The possibility that the LED does not apply to “legislative and general” decision-making is problematic because the LED is supposed to be able to provide procedures in circumstances where the CL would not otherwise offer them and, it is primarily in the realm of “legislative and general” decision-making that the common law of PF does not currently provide procedural protections. On the other hand, even if the LED does not apply to “legislative and general” decision-making, it would still have a role to play because (a) it could potentially operate to provide procedures in the other “problematic area” - “the CL threshold” for PF - i.e. in pure application cases and (b) it can still potentially provide “more or better” procedures than the common law would ordinarily provide

Re CAP (SCC, 1991) LED is procedural only and can’t be used to fetter gov from enacting legislationFacts: The federal gov introduced a deficit reduction plan and legislation that would amend the CAP without the province’s consent and without giving 1 year’s notice (contrary to the agreement)- Issue: BC sent a reference question to the BCCA. One of the allegations was that the provisions of the

agreement, as well as the previous conduct of the govt of Canada, gave rise to a legitimate expectation that the gov’t of Canada would not introduce a bill into parliament to change the terms of the CAP without BC’s consent or without the 1 year notice

- Outcome: the SCC did not accept this argument:o BC was trying to use the LED substantively rather than procedurally; they are either after a veto or a

delay for 1 year – the court says a delay is substantive, not proceduralo In trying to stop Cabinet from introducing a bill, SCC said prov were fettering the work of the legislature

LED also cannot attach to Ministers or Cabinet vis a vis the introduction of bills into Parliament because to do so would be to fetter Parliament indirectly

Baker (SCC 1999) LED never generates a claim to a substantive outcome, only hearing entitlements Baker argued that a LE regarding certain kinds of procedures arose from the Convention on the Rights of the Child which had been ratified by Canada but not implemented through legislation. Rejected.

Mount Sinai (SCC 2001) Discussion of LED- The minister said the hospital’s permit would be formally changed once the hospital moved to Montreal, but

once it moved, the Minister, without giving the hospital the opportunity to give reasons, denied the new permit. The hospital asked the courts to grant mandamus: they argue that ministry had a duty to give the license.

- SCC Decision: hospital gets the permit issued (but not b/c of LED)- Majority: The discretion that the Minister of Health had has in fact already been exercised in favour of granting

the permito Note: the majority say NOTHING about the LED the court knew the hospital needed a remedy but

they were very hesitant to give a remedy based on legitimate expectations. - Minority (Binnie J. and McLachlin concurring):

o Agree with the majority, but on a basis of the abuse of discretiono It would be unreasonable to make any other decision but to give the permit based on the circumstanceso The minority discusses legitimate expectations and promissory estoppel:

LED cannot be used substantively. Three important points about the doctrine: Look to the conduct of the public authority in its exercise of power

o i.e. established practices or conduct or representations that lead to legitimate expectation that you’ll get a particular procedure or that you’ll get a particular outcome (substantive result)

o Procedures have to be clear, unambiguous and unqualified representations of conduct to give rise to legitimate expectation of procedures or outcome

The expectations must not conflict with the public authority’s statutory provisiono The only time that isn’t true is if you can use a constitutional or quasi-

constitutional document to override the statute An applicant who relies on LED may (but doesn’t have to) show, that he/she was aware

of such conduct or that it was relied on with detrimental resultso In other words, you can find out about conduct that would give you a legitimate

expectation after the fact and you can rely on it - Side note: the hospital was successful for a substantive law reason; but not procedural fairness reasons

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CUPE v. Ontario (Min of Labour) (SCC 2003) Must be a clear, unambiguous, unqualified practice or promise - Facts: Under the HLDAA, the Minister could appoint a third member to a compulsory arbitration board.

Traditionally, the third member was appointed from a list of arbitrators who were mutually acceptable to both mgmt and unions. The Minister appointed four retired judges to chair several HLDAA arbitration boards; they were not on the “agreed list”.

- Outcome: the union could NOT establish a clear, unambiguous, or unqualified past practice, nor could it prove that the statements (promise) from the Minister were unambiguous.

Mavi (2011) LED invoked successfully because of wording in the undertakings signed by the sponsors

Constitutional and Quasi-Constitutional Procedural Protections

Resort to a Rights Document…- …when you need to override legislation, or when you believe it will get you better procedures

o I.e. s. 7 of the Charter may provide more rights than the CLHowever, only go to Right Documents when you have to!- Apply the common law first, if it is available to breathe procedural rights into the statute (minority criticism in

Blencoe, Wilson in Singh)Which Rights Document?- If you need to override a provincial legislative scheme Charter

o The Canadian Bill of Rights (CBR) only applies in the federal realm, whereas the Charter applies to both- If you need to override a federal legislative scheme you have two options:

o CBR the CBR arguably has a broader scope for four reasons, and thus it might apply procedural protections with a more extensive reach than the Charter

i. The CBR uses the terms “individual” and “person”, while the Charter uses the term “everyone”

“Everyone” in the Charter does NOT include corporations “Persons”, according to the Federal Interpretation Act, includes corporations under

the CBR unless the context suggests otherwise ii. The CBR includes the “enjoyment of property” in s. 1(a)

“Property” was deliberately excluded from s. 7 of the Charteriii. S. 2(e) attaches procedural guarantees to the “determination of rights and obligations” iv. There is no equivalent to s. 1 of the Charter in the CBR

Of course the balancing can happen in determining what the CBR rights mean The Quebec CA held that they could engage in a s.1-style balancing process when

determining procedural guarantees according to s. 2(e) (Air Canada)b. Charter the Charter is stronger than the CBR, so use it if you can

Canadian Bill of Rightss. 1 It is hereby recognized and declared that in Canada there have existed and shall continue to exist without

discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely(a) the right of the individual [note: human beings] to life liberty, security of the person and enjoyment

of property [not in the Charter], and the right not to be deprived thereof except by due process of law.

s. 2 Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgement of infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to(d) authorize a court, tribunal, commission, board or other authority to compel a person to give

evidence if he is denied counsel, protection against self crimination or other constitutional safeguards;

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(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.

s.2(e) only applies in the context of a proceeding before a court/tribunal. It does not impose upon Parliament any duty to provide a hearing before the enactment of legislation. (Authorson)

MacBain CBR applied to overrule statutory authorization defence in federal statute- Facts: Under HR system, the HRC will appear in front of the Tribunal on behalf of the complainant AND they get to

decide who gets to sit on the tribunal (from a roster developed by gov of the day). It was argued that the tribunal is not sufficiently independent from the parties – perception that this tribunal might be biased in favour of the Commission; the tribunal would want to favour Commission b/c they select them to be on the Board.

- Note: there is a RAOB here – BUT the scheme was statutorily codified under federal law - Issue: can this practice be challenged even though it’s rooted in a statute?- Outcome: Yes. The Bill of Rights (s. 2e – right to a fair hearing) can apply here to trump the statute

Authorson (2003, SCC) The CBR is of no assistance in DM contexts that are completely legislative in nature- Facts: Authorson was part of a large class of disabled war veterans who received pensions and other benefits

from the federal Crown. The funds were administered by the Dept of Veterans’s Affairs. The DVA did not give them the funds until 1990, and then Parliament passed legislation declaring that the Crown was not liable for any claims in relation to the lost money prior to 1990. Veterans sued as a class, claiming that the statutory bar on liability was inoperative under the CBR b/c it contravened the right not to be deprived of the enjoyment of property except by due process of law (s.1(a)) and the right to a fair hearing in accordance with the PFJ’s for the determination of one’s rights and obligations (s.2(e)).

- Issue: What process was guaranteed by the CBR when the veteran’s property rights were extinguished? - Outcome: the SCC rejected all arguments and upheld the statutory bar. The CBR did NOT prevent Parliament

from creating legislation. o Veterans argue that their property rights were deprived without due process of law (violation of s.1(a))

because there were no procedures accorded before the statute was enacted Court holds that there were no procedural rights before the parliamentary enactment of the law Due process protections cannot interfere with the right of the legislative branch to determine

its own procedureo Veterans argue that their property rights were deprived without due process of law because no

procedures were afforded when the statute was applied to them (a more individualized moment) Court holds that the decision was NOT individual – there was no discretion, it was a complete

ban on bringing a claim. Everyone was denied the lost interest, and so the decision was more general than

individualized. o Veterans argue that s.1(a) protects a substantive right against expropriation without compensation

In 1960, the gov had the right to expropriate property if it made its intention clear. The BoR protects rights as they were in 1960, and so the gov can still expropriate without compensation as long as they do it clearly. In this case, the expropriative intent was clear and ambiguous.

o Veterans argue that s.2(e) of the BOR is violated because the statutory ban is a “determination of rights and obligations” and he did not get a fair hearing

Court holds that s.2(e) only applies in the context of a proceeding before a court/tribunal. It does not impose upon Parliament any duty to provide a hearing before the enactment of legislation.

o Note that CL PF did exist in 1960, so if there is some discretion about taking someone’s property – then you can use BoR to get PF.

Charter S.7

Singh (1985 SCC) Framework for a s. 7 analysis set out and applied; oral hearing where credibility at stake- The Immigration Act at the time Singh was decided established a three-stage process by which claims for

refugee status were determined. KEY POINT: a claim for refugee status could be determined against an applicant without there being an oral hearing by a DM at any stage of the process and without the

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applicant having an opportunity both to “know the case against him” and to respond to that “case” - Facts: The Appellants were convention refugee claimants who were landed in Canada. The minister, acting on

behalf of the Refugee Status Advisory Committee (RSAC), determined they were not convention refugees so they applied to the Immigration Appeal Board (IAB) for a redetermination. IAB held that there were no reasonable grounds to believe their claims could be established at a redetermination hearing and they were found not to be refugees. They did NOT get an oral hearing. Appeals from the refugees to the FCA failed, so they appealed to the SCC.

- Issue: The appellants challenged the validity of the claims determination process arguing that it violated their rights under s.7 of the Charter.

o Note: SCC asked for submissions re whether the process was consistent with s.2(e) of the Bill of Rights- Outcome:

o 3 judges (per Wilson J.) held Charter s.7 was infringed Main reasons: big problem with no oral hearing; big problem with not knowing the case against

you Wilson J. noted the courts should generally not resort to constitutional bases for resolving cases

unless it is strictly necessary (which it was in this case) Wilson J. set out the framework analysis of a s. 7 challenge:

Does the admin decision at issue deprive (or threaten to deprive) an individual of his/her interests in “life”, “liberty”, or “security of the person” (as those concepts have been understood in the SCC jurisprudence)?

o Yes, the denial of the right to freedom from the threat of physical punishment or suffering is a denial of security of the person within the meaning of s. 7

o Wilson J. decided that “everyone” means everyone physically in Canada o Security of the person includes “freedom from state imposed threats of physical

punishment or suffering as well as the imposition of such punishment or suffering”(by another entity/country) and she decided such a threat existed

o Note: The Canadian gov itself wouldn’t be doing the direct persecuting If so, is the deprivation in accordance with the PFJs?

o (a) In a procedural sense (are the procedures by which the deprivation can occur in accordance with the procedures required by PFJ?) and

In this case, Wilson J. decided that PFJ = procedural fairness According to the SCC in Duke, “the tribunal which adjudicates upon [an

individual’s] rights must act fairly, in good faith, without bias and in a judicial temper, and must give to him the opportunity to adequately state his case”

The convention refugees did not have a fair opportunity to refute the claim against them because they didn’t know what happened at the RSAC stage this was Wilson J.’s greatest concern about the procedural scheme

Also, they did not have an oral hearing and where a serious issue of credibility is involved, PFJs require it

Therefore, s. 7 was breached. There should have been an oral hearing

o (b) in a substantive sense (is the deprivation of security of the person itself – the possibility that it could occur – consistent with PFJ?)

If s.7 is breached, is the denial of PFJ nevertheless a reasonable limit saved under s. 1?

o Wilson J. disregards the utilitarian considerations that were put forward from the minister - he had argued that the procedures were accepted by the UN and were common to those in other commonwealth countries, and that the IAB was already subject to a strain in volume of cases and having oral hearings would constitute an unreasonable burden on the Board’s resources

Note: this case does NOT mean that you always get an oral hearing under s. 7; they consider the context of the case – CREDIBILITY was at stake in this case and thus it was

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required!o 3 judges (per Beetz J.) held Bill of Rights s.2(e) was infringed

Basically same reasons as under the Charter but under a different rights document There is a right to a fair hearing under the CBR under s. 2(e) – you may get an oral hearing

depending on the context Consider the nature of the rights at issue and the severity of the consequences to the individual

o 1 judge retired and did not take part in the decision- Remedy: case remitted to IAB for full hearing of claims on the merits- Note: they had to resort to a rights document because the scheme didn’t allow them to use ordinary CL

principles of PF (the statute was exhaustive of procedures and precluded them from adding things on)- Note: this was a breakthrough case for two reasons:

o The 3 judges who decided to breathe rights into the CBR (perhaps because this was right after the Charter came into effect and they didn’t want to get into s. 7 yet)

o The judgment by Wilson (+2) decided there had to be hearings for the refugee detention process

Charkaoui (SCC 2007) How to deal with security concerns when s. 7 is engaged- Facts: Canadian security agencies alleged that Charkaoui was involved with a terrorist organization – Minister

issued security certificate against him which led to his detention pending deportation. - Under the IRPA, the detention and reasonableness of security certificates are subject to review by the FC.

During the review process, ex parte (away from the person being discussed) and in camera hearings (closed-door hearings in which neither the person named on the certificate nor his lawyer is present) are held at the request of the Crown if the disclosure of some or all of the evidence would undermine national security. The judge may rely on evidence withheld from Charkaoui that would be inadmissible in a court. If the judge determines that the certificate is reasonable, there is no appeal or opportunity for further JR.

- Issue: do the procedures under IRPA for determining the reasonableness of the certificates infringe s.7? - Outcome: yes

o S.7 is engaged Liberty is engaged – the person named in the certificate is detained Security of person may be engaged – the detainee may be removed from Canada to a place

where his life/freedom would be threatened. In some cases, he can be deported to torture. o It is not in accordance with the PFJs

Court states that the procedures required to conform to the PFJ’s must reflect the exigencies of the security context – BUT they cannot be permitted to erode the essence of s.7

The protection may not be as complete as in a case where national security constraints do not operate, but there still must be meaningful and substantial protection of s.7.

While the national security concerns should be taken into account, the overriding issue in this case is the nature and seriousness of the interest at stake (the lengthy detention)

The PFJ’s require that before the state detains, it must accord fair judicial process. This means: The right to a hearing before an independent and impartial magistrate The right to know the case put against one, and the right to answer that case

In this case, there was a hearing, and it was before an independent and impartial judge. BUT the hearing was not on the facts and on the law

If the named person does not know the full case and is not present at the hearing, they cannot put relevant evidence before the judge.

The named person also does not know the case to meet and cannot answer it The violation of s.7 is not saved under s.1

The scheme does not choose the least intrusive measures. A less intrusive method could be used – i.e. scheme of special security-cleared advocates (not counsel for applicant) but they make submissions and cross witnesses and make arguments.

Impact: Parliament passes legislation adopting this model.

G.(J.) (SCC 1999) S. 7 rights for a parent (security of the person); state-funded counsel, “mootness” - Facts: Minister was granted custody of the app’s three children for 6 months – wanted to extend it another 6

months. The app was really poor and receiving social assistance – applied for legal aid to get a lawyer in

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opposing the Minister’s application for an extension – was denied b/c custody applications were not covered under the legal aid guidelines. App sought a declaration that the rules and policies governing the distribution of legal aid violate s.7 of the Charter – she argues that s.7 mandates state-funded counsel.

- Issue: do the rules and policies governing the distribution of legal aid violate s.7 of the Charter? - Outcome: yes – she had a right to state funded counsel

o Is s. 7 engaged? Yes. Security of the person protects both the physical and the psychological integrity of the individual

The state action must have a serious and profound effect on psychological integrity The effect of state action must be assessed objectively: what would be the impact of the

state action on the psychological integrity of a person of reasonable sensibility? Need not arise to the level of nervous shock or psychiatric illness but must be greater

than ordinary stress or anxiety The removal of a child from parental custody constitutes a serious interference with the

psychological integrity of the parent. o The deprivation of security of the person is NOT in accordance with the PFJs

Although the state may take custody in order to protect a child’s health and safety, it must be done through a fair procedure (a hearing)

Whether a “fair hearing” includes a right to state-funded counsel depends on: Seriousness of the interests at stake The complexity of the proceedings The capacities of the individual to represent him/herself (consider level of education,

familiarity with the legal system, level of literacy, emotional aspect of the case…) Caveat : the court did not say that in every child custody case there would be a right to counsel –

must consider the factors above In this case, the seriousness of the interests, the complexity of the proceedings, and the

capacities of the app point to the need for state-funded counsel in order to ensure a fair hearingo This violation of s.7 is NOT saved by s.1 of the Charter

- Remedy: she is given state-funded counsel. This is an expensive remedy, so the case is limited to requests for state-funded counsel in child apprehension cases.

- NOTE: reference to correctness: Effective parental participation in this case was essential to maintain fairness for the child the court was not going to get all the info it needed from the mother if she was not represented

- NOTE: reference to mootnesso Moot case: one in which a decision of the court will not have the effect of resolving some controversy

which affects or may affect the rights of the partieso The court chose to decide this case, even though it was moot o There are three factors to consider when the court should exercise discretion (and proceed with a moot

case) (Borowski): There was an appropriate adversarial context, the question was important to others as a precedent, the court would not be overstepping its institutional role is it a real fact pattern, rather than an abstract scenario? [if it’s real, the court has a role to play]

Blencoe (SCC 2000) What amounts to undue delay in CL procedural fairness- Facts: Blencoe was a cabinet minister accused of sexual harassment. The investigation that followed involved

extensive delays including a five month period of complete and unexplained inactivity on the part of the Commission. Two years after the complaint was filed, the commission decides to hold an oral hearing. The media attention continued; Blencoe moved away for a while; it was significant stress on Blencoe and his family – he considered himself “unemployable” now, he did not stand for re-election, he suffered from severe depression. Blencoe seeks JR asking the court to stay the complaints due to unreasonable delay; he argues his s. 7 rights were violated.

- Held: S.7 not triggered, undue delay at CL not triggered.- Majority: Bastarache + 4 decided based on s. 7

o Does the Charter apply? Yes The mere fact that a body is independent of gov is not determinative of the Charter’s

application, nor is the fact that a statutory provision is not impugned The Commission is created by statute and its actions are taken pursuant to statutory authority

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o Were s.7 interests (liberty or security of the person) triggered? No Liberty was not at stake:

Liberty is engaged where state compulsions or prohibitions affect important and fundamental life choices. The state decision did not impact fundamental life choices or a core idea of personal autonomy. Personal autonomy is not synonymous with unconstrained freedom

Security of the person was not at stake either: There must be serious, state-imposed psychological stress to trigger this interest

(Morgentaler)o (A) It must arise from state action [causal connection] the psychological harm

must be state imposed In this case, there wasn’t enough state-caused problems Much of Blencoe’s stress came from third parties (i.e. media) Note: stress, anxiety and stigma may arise from any human rights

allegationo (B) It must be a very serious kind of interference with psychological integrity

the psychological prejudice must be serious The interference in this case was not sufficient in “kind and degree” The state has to be interfering with a person’s ability to make decisions

about their fundamental being. This is a narrow sphere o Note: Bastarache also went through the reasons from the BCSC which found that

s. 7 was triggered due to stigma, dignity and reputation consequences: Each of the values discussed, on their own, don’t trigger s. 7 even though

they help to demonstrate what security of the person means; it has to be something more

Security of the person does not protect dignity per se, reputation per se, or stigma per se

Re: Delay at CLPF. In this case…o There was no actual prejudiceo If you look at all the factors, the delay was not inordinateo The case was not significantly complicatedo Blencoe was responsible for some of the delay (they decided 8 months)o They also couldn’t consider the delay starting when it was passed to the

tribunal, because they are independent - therefore, the delay was only 16 months (the 2 years minus the time Blencoe was responsible for)

-  Minority: Lebelo No reference to Charter – critical of majority for considering the Charter issues o Undue delay in this case created an abuse of process and entitled Blencoe to a remedy

However, the remedy should be an order for an expedited hearing and NOT a stayo Reasoning:

An “unreasonable” delay is abusive. “Unreasonableness” is assessed in light of the following factors:

length – time taken compared to the inherent time requirementso This encompasses legal complexities and factual complexities

causes beyond inherent time required viewed in light of complexity of the caseo This includes consideration of such elements as whether the affected individual

contributed to or waived parts of the delay and whether the admin body used their resources as efficiently as possible

effects/impact – must be prejudice either in an evidentiary sense or in terms of other kinds of harms to the lives of those affected

o Minority’s View Re: Remedy Stay of proceedings is not the sole nor the preferred means of redress - a stay stops

proceedings, negates enforcement of legislation and radically affects rights of complainants

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Stay should be limited to rare cases where (1) the delay compromises the fairness of the process itself; or (2) the delay amounts to a gross or shocking abuse of process

In this case, Minority holds a stay would be excessive and unfair because: No compromise to fairness in terms of ability to respond – no evidentiary prejudice Delay not wilfully shocking or gross a stay of proceedings in a situation that does not

compromise the fairness of the hearing and does not amount to shocking or gross abuse The interests of the complainants are very important/must be taken into account

“lesser” remedies can be used where a stay is not warranted such as expedited hearing orders and costs orders (in this case, both of these were appropriate according to the Minority)

- Note: Key Difference Between Minority and Majority Opinion:o The minority held that delay need not bring the human rights system into disrepute in order to be an

abuse of process o The minority held that the delay in this case was “unreasonable” and did amount to an “abuse of

process” o The minority said the court needed to be alive to the need to safeguard a degree of flexibility in the

interpretation and evolution of s. 7 but the court should remind litigants that not every case can be reduced to a Charter case

o The minority held that there are more remedies available for undue delay than just a stay (Prof thinks this will become the law)

Determining Where Along the PF Spectrum You Are: Baker- Facts: Baker wanted participatory rights; specifically, an oral interview. She had the right to make an

application and written submissions with respect to the application.- Issue: were the participatory rights accorded consistent with the duty of PF?” [were there sufficient

participatory rights? should there have been an oral hearing (interview) prior to the decision?]- Application of the factors:

o The nature of the decision and the process followed The H&C decision, which involved the Minister exercising considerable discretion based on the

application of many “open-textured” principles and factors, was very different from a judicial decision fewer procedures were required. This is more of a policy decision than the judicial decision this does not resemble what courts typically do

But... courts do use discretion and consider multiple factors, so this factor is not decisiveo The nature of the statutory scheme and the terms of the statute

L’H-D looks at the “dispositive nature of the decision”: is it a final decision or not? If there is no appeal, that is a factor that points to there needing to be more PF

o In this case, there is no appeal right so this points towards a need for more PF However, in this case, the provision in question is an exception

o Most people get the norm; this person is asking for more than the norm therefore, this isn’t like an adversarial decision to which PF would usually apply

o Also, there’s no statutory right being issued; Baker doesn’t have a right to XYZ being established it’s only a discretionary exception that she is asking for

This part of her consideration pointed towards a need for less PFo The importance of the decision to the affected individual(s)

The consequences of an unfavourable decision to Baker, her partner and her children, pointed towards higher level of procedural fairness

o The legitimate expectations of the person challenging the decision Argument from Baker: there was a representation from the ratification of the Convention on the

Rights of the Child Decision: L’H-D decided legitimate expectations added nothing

The ratification of a Convention does not give rise of a LE Also, the content of the Convention doesn’t give the right to any more procedures than

Baker would have been given at common law

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o The choices of procedure made by the agency itself The SCC expressly acknowledged that courts should sometimes be deferential to the agencies’

procedural choice (“give important weight” to it) The Minister’s choice in this case pointed to a lower level of procedures

They don’t usually give oral interviews L’H-D doesn’t tell us how much weight she gives to this

- Outcome: sufficient participatory rights were accorded. No oral hearing was necessary in this case; the process followed met the requirements of the duty of fairness in this context.

o The existence of a duty of fairness does not determine what requirements will be applicable in a given set of circumstances; all circumstances must be considered (Knight)

o Underlying notions: the purpose of the participatory rights contained within the duty of PF is to ensure that admin decisions are made using a fair and open procedure, appropriate to the decision being made, and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker

o NOTE: L’H-D made it clear that the Baker factors re: where you are along the spectrum once the threshold has been met are NOT EXHAUSTIVE

Specific Content of PF

Re Hardy (BCSC 1985) Mass notice will suffice as long it comes to the attention of affected peoples- “It would be unreasonable to suggest that every resident in the school district must be personally apprised of

the intention to close the school. What is required…is that the proposed closure be known throughout the district generally so that it can reasonably be expected to come to the attention of interested persons, and that they be accorded sufficient time and opportunity to fairly present their side of the case before a final decision is taken.”

Re Central Ontario Coalition (1984, Ont Div Ct) If notice not accurate, it will be “inherently defective”- Facts: Ont was proposing a new power line and they had a preferred route, as well as alternate routes available. - Held: The decision was quashed because people in the alternate areas would NOT have reasonably understood

that they could be affected by the decision described in the ads. The notice in this case was “inherently defective”

Ex Parte Taylor (1970 ONCA) Adequacy of notice will vary, consider expected knowledge of person involved - Facts: The Commission sent Taylor notice telling him he had to attend a hearing to prove why he got the

interim decision, and they told him he could have a lawyer and bring witnesses. The Commission decided to suspend his training licence, which he didn’t expect to happen given the lesser penalty in the interim decision. Taylor argued the notice wasn’t adequate because it didn’t tell him what he was facing.

- Held: Taylor still won the case but the Ont CA disagreed with the Divisional Court on the issue of notice o They decided that a person like Taylor should know this was a possible penalty for drugging a horseo In the circumstances of this case, the notice given to Mr. Taylor was adequate

Chester (1984, Ont HC) Adequacy of notice will vary in terms of what the hearing is about- Facts: Chester is being held in a prison in BC. They want to move him somewhere for dangerous prisoners.

Chester is notified that this transfer is being considered “because of his violent and threatening behaviour and because of an assault on a staff member on July 6.” He is invited to give submissions and Chester prepares his case about what happened on July 6. Unbeknownst to him, the prison officials think it’s his cumulative record that is leading them to decide he should be transferred. They decide in favour of transferring him to the security unit and he seeks JR.

- Held: Chester won because of the ambiguity in the wordingo The wording linked the threatening behaviour to July 6th and he wasn’t aware the other part of his

record would be part of the proceedings so he didn’t respond adequatelyo Liberty is at stake (would point to higher quality of notice)

Krever Commission - Reflects how context-specific notice issues are

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- Facts: Blood contamination inquiry. Krever said he is NOT concerned with finding civil or criminal liability. On the last day of the hearing the Commission issues notices naming 95 individuals as people who may be found to have conducted misconduct. The parties seek judicial notice to quash the notices.

- FCTD and FCA: some of the notices were quashed based on a lack of evidence, but a lot of them stood- SCC: notices are upheld

o Note: There are some problems with the appellants trying to make their case Mainly, it’s premature: we don’t know what the wording of the report will be or if there will

actually be findings of misconduct remember, the notices are still confidential! o The appellants argued that the public would necessarily perceive the findings as “legal liability”; the

public will think they are guilty therefore the commission should not be able to “label” their findings with the allegation of “misconduct”

Rejected. The wording in the mandate states that the Commission can draw conclusions about misconduct and who appears to be responsible

o The appellants tried to argue that they didn’t get a fair procedure regarding the findings of misconduct Cory J. said the appellants shouldn’t be surprised: the lawyers representing them have been

consulted throughout the entire process and it was entirely fairo The appellants also argued that there was a timing issue because the notice came out on the last day of

the process; they argued it was too late for them to be able to respond effectively Once the notices go out, people are invited to bring more evidence or make submissions to try

to persuade the Commissions that findings should be made As long as adequate time is given to the recipients of the notices to allow them to call the

evidence and make their submissions, the late delivery of notices will not constitute unfair procedures

Cory J. says the appellants need to recognize what type of process this is: it’s inquisitorial; these proceedings are NOT about the individuals; they’re about society

Therefore, while the reputational interests are considered, the public as a whole has rights as well that must be balanced with those

No criminal or civil liability at stake here this is ALWAYS important to consider DiscoveryAdvantages & Disadvantages to Pre-Hearing Discovery in the Admin Process- Advantages of pre-hearing discovery:

o Eliminates trial by surprise/ambush: which is not fair and not a good way to get at the truth o Enables the parties to prepare more effectively for the hearing and narrows the issues (efficiency)o Discovery may promote settlements before the hearingo Not having discovery impedes the ability of a person to make full answer and defence

- Disadvantages of pre-hearing discovery:o May unduly delay and complicate admin proceedings that are supposed to be speedy and expeditiouso The ADM may not have jurisdiction to make discovery orders; depends on the scope of its statutory

powers, express and implied. It appears that courts will not easily imply the existence of such jurisdiction (CALPA)

CALPA (SCC 1993) There must be express or implied authority in a statute for an agency to make a discovery order- Facts: Airline told by the Canadian Labour Relation Board to provide docs to the Board; this was at an

investigative and pre-hearing stage and the question was an employment issue. - Outcome/Reasons:

o Gonthier J. held that the board had no inherent or incidental powers, only those conferred on its by statute

Admin agencies are “creatures of statute” and as such, they have no inherent jurisdiction, they only have what the statute gives them, expressly or impliedly

If something is not expressly in the statute and if PF requires that it be there at CL, then you have to say it is there implicitly

o The provisions relied on in this case did not authorize compulsory discovery orders The CLRB relied on the Labour Code which said the Board had power to summon documents or

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things the board deems necessary the SCC held this only applied at the hearing stage, not for the investigation

The Board tried to rely on another section from the Code, which said the board can do necessary things to attain the objects of the act the SCC held this does not authorize the order because it wasn’t incidental to the Act to have a party provide a document at an investigatory stage

Northwestern General Hospital - Unique human rights law situation; no privilege, disclosure jurisdiction upheld- Facts: The HRC was looking into systemic racism at the hospital. The Board of Inquiry ordered pre-hearing

discovery and the Commission is ordered to provide the hospital with all of the statements made by the complainants to the investigator, as well as the identity of the complainants, even if they won’t be relied upon. The HRC sought JR.

- Preliminary issue: does the board have jurisdiction to order this? Yes (different than CALPA) o S. 8 of the SPCA: if good character…the parties can get “reasonable information of any allegations and

respect thereto” (on the authority of CALPA, this section wouldn’t be sufficient on its own...)o S. 12 of the SPCA: gives a power to compel witnesses to come to the hearing o Based on these sections, and principles from Stinchcombe [because this is a very serious allegation in a

public place], they found they had jurisdiction to order discovery- Held: the HRC made two claims about privilege (litigation and case-by-case) and both of them failed- NOTE: this is in the human rights context and the analogy with the criminal process is more apparent because

there’s been an investigation done by the state you can analogize the commission to a prosecutor, this was done with public cost to find out if someone discriminated…therefore, they somewhat apply Stinchcombe reasoning

o Stinchcombe: the Crown has an obligation to disclose inculpatory and exculpatory evidence. The Crown does not own the “fruits of the investigation” – it is done at the public’s expense to ensure a just process

Ciba Geigy - Different outcome than NW Gen Hosp re: disclosure; consider the CONTEXT (regulatory, economic…)- Facts: Investigation into a particular drug. Corp seeks disclosure of everything the Board has in its possession

that relates to this issue. The board refuses, especially wrt to the staff report because (1) they need their staff to give them free, open and candid advice and (2) they say they will give them all the info they will rely on at the hearing

- Held: Corp loses – documents not disclosedo Balancing the interests, they do not need the staff report because:

This is an economic, regulatory process: not criminal; Stinchcombe doesn’t apply Note Irvine – the state needs leeway in these economic cases They don’t want to delay the process unduly, which discovery might in this case

Corp will get the documents the Board will rely on; that’s good enough!o NOTE: The content of PF is eminently variable and is to be decided in the specific context of each case.

[Basically, use Baker factors]

May v. Ferndale - Stinchcombe does not apply to admin processes, it’s principles might- Prisoner in a medium security prison was assessed by a computer program and was going to be sent to high

security prison (liberty was at stake) - The court found that PF led to the individual getting what he needed – i.e. that he should get the “inputs” into

the computer program (even though they did not rely on Stinchcombe) This was about fairness.

Hearing Stage

Khan (ONCA 1997) When CREDIBILITY is at stake and it’s an IMPORTANT DECISION, oral hearing is necessary- Facts: Missing exam booklet.- Issue: Did the duty of fairness in this case require an oral hearing? - Held: Yes

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o Universities must act fairly when they review grades – there is a duty of fairness (it is over the threshold)

o The Court relied on Singh: if the decision is serious to the individual and there is a serious issue of credibility there should be an oral hearing

In this case, the decision is extremely important: a failed year can delay if not end of the career of the student, it may render valueless any previous academic successes, and it may foreclose further university education professional interests are at stake

- Dissent (Finlayson J.):o Khan was given the opp to provide a written statement about why she deserved relief and she dido Distinguishes Singh Singh was about Charter interests, and there are no Charter interests hereo The issue was not that serious – the consequence was not expulsion, she would not have been kicked

out of the legal profession. o This was not a matter that turned on credibility – there were no allegations made against Khan, no

accusations of dishonesty, and the proceedings were not adversarial in nature. The app had not been charged with cheating on the exam or with any other disreputable conduct.

o Note: the professor said the fourth booklet would not have helped Khan’s grade anyways But this is a substantive reason – cannot be considered in PF issue

Howard v. Stony Mountain Institution (1985, FCA) Applies the test for when you have a right to counsel- Facts: Howard was in prison. He stood to lose 267 of earned remission in a prison disciplinary matter. He was

charged with 5 “serious” or “flagrant” in-prison offences. He sought to have counsel present but his request was denied; he argues s. 7 applies and PFJs require he gets a lawyer.

- Issues: Does s. 7 of the Charter guarantee the right to counsel in these circumstances?- Test:

o Gravity of the issue (seriousness) 267 days is significantly serious and liberty is at stake strong right to counsel

o Complexity of the matter Lack of particulars about the charges There was a possibility that three of the charges stemmed from the same act; that’s something a

lawyer would be able to address The fact that one of the charges was vague or difficult to defend All of these things point to the right to counsel

o Capacity There is nothing that would indicate that H suffered from physical or mental incapacity which

would disable him from conducting his own defence as well as might be expected of any ordinary person without legal training; but he obviously felt the need for counsel

- Outcome: he had a right to counsel & the prohibition should have issued

Kane (SCC 1980) PF violated if no disclosure and a serious interest is at stake- Facts: Kane was a tenured professor who was dismissed for cause. Kane appealed to the Board of Governors. At

the close of the hearing, the Chairman requested Kane and his counsel leave so the Board could deliberate – however, the President was present throughout the deliberations. He did not participate in the discussions nor did he vote on the resolution – but he answered questions.

- Issue: was PF violated b/c there was no disclosure of the President’s answers when Kane was absent?- Outcome: Yes

o It is a serious interest at stake – professional/employment interests – and it is an adversarial processo The Board must listen fairly to both sides and give the parties a fair opportunity to respondo The Board should have disclosed those additional facts to Kane and allowed him to respond

Re Napoli (BCCA 1981) Disclosure required b/c of nature of circumstances; need info to adequately respond - Facts: Napoli was injured at work; the WBC assessed his disability at 5% of total disability. He appeals to the

Board of Review and asks for his medical reports they will not give him the reports; they give him a four-page summary instead and they don’t even give him the names of the doctors who wrote the reports. He appeals to the Board of Commissioners of the WCB and again asks for the medial reports but he is again

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refused; this time, however, he gets a 16-page summary but none of the experts were named in the summary. - Issue: Did the Board breach PF in failing to give the worker a full opportunity to peruse his file?- Outcome: PF applies and he should have been granted full access to the file

o Consider the circumstances to determine if disclosure is required Something important is at stake; summaries were inadequate b/c he could not challenge the

medical reports when he didn’t know who made them and he didn’t really know what was said Bottom line: he needs the info to respond to the case against him

o The WCB had argued: Disclosure might be harmful to the worker himself (Napoli)

This is very paternalistic; they claim that if he reads the report he might never get better, that it is bad for his morale

The doctors when they make the reports won’t be as frank if they know the reports will be given to the claimant chilling effect argument

o Reasons in response to the board’s arguments: Interests on the side of the individual were greater than the concerns advanced Doctors may take more care with respect to their assessments if they know they will be public

o Main point: fairness requires that the original reports be disclosed in order that the claimant can effectively answer the case against him

Charkaoui #2 (SCC 2008) Disclosure vs. national security, content of PF (under s.7) varies - Facts: Charkaoui has a security certificate against him by two Ministers. The FC judge is looking at the info

regarding Charkaoui to determine if he is a threat. There is a report of two interviews. Charkaoui’s lawyer wants the original notes on which the report is based. The judge orders them to give him the notes; but they notes had been destroyed (according to CSIS policy). Charkaoui seeks an order staying the proceedings.

- Outcome: the SCC orders CSIS to stop destroying the notes- Outcome (regarding the right to disclosure of the notes):

o S. 7 is at issue so the PFJs apply the court uses the Baker factors to determine what level of PFJ applies (as in Suresh)

The consequences for Charkaoui are enormous there is a HIGH level of PFo How do you disclose given the context, which includes national security concerns?

Evidence should be disclosed “in a matter and within limits that are consistent with public safety…” Confidentiality requirements related to public safety and state interests will place limits on how the duty to disclose is discharged. The judge must filter the evidence he or she has verified and determine the limits of the access

Level of PF is different because of competing interest of national security

Innisfil (SCC 1981) CE allowed because of statutory wording- Facts: The town of Barrie wants to expand and absorb the municipalities around it. There was a gov policy that

said, by 2011, the town of Barrie would grow to 125,000 people. A gov rep sent a letter stating this policy.- Issue: should the opponents to the expansion (the opposing municipalities) have the opportunity to CE the gov

representative that comes to discuss the gov policy? - Outcome: Yes.- Reason: two reasons

o The statutory wording The statute provision suggested that there is a right to CE Note: s. 38 of the ATA says at oral hearings, parties may call witnesses…and conduct CE of

witness as reasonably required as a full and fair disclosure of all matters of the issue o The common law understanding about CE

CE is vital to the adversarial system; however, just because the judicial system is adversarial doesn’t mean that all ATs are adversarial

Estey recognizes the difference between CE in the adversarial process and in the admin realm only when ADM is using an adversarial process that is based on fact finding do these types of rights need to be given (i.e. CE)

When the agency is more concerned with community interest at large and policy…its

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processes are going to be allowed to be different when it’s more legislative (and general) your claims for CE may be weaker

Note: it is arguable that this case is policy, rather than judicial (because perhaps the decision of how big Barrie should be is ‘policy’ in nature), but what the statute says overrides this consideration

MacLab Enterprises (ABCA 1971) CE is to counter information given to the DM; consider other means- Facts: Argument over land zoning. Expert report was adduced as evidence but the expert was out of town and

cannot be CE. Opponents argued the report should not be admissible without the author being there. The Act said the board could make its own procedures and it was not bound by the common rules of evidence, therefore, the board decided to admit the report and allowed the other side to submit anything they wanted to counter it (i.e. other expert reports).

- Outcome: no right to CE in this case; the Board won - Reason:

o A person appearing before quasi-judicial bodies is entitled to be heard and to present his case, and when this is not permitted there is a denial of natural justice

o The importance of CE will vary with the nature of the case being heardo CE is usually allowed but the main purpose is to contest the other side as long as you have a chance

to do that, the proceedings are okayo In this case, CE was not the only way to contest the report (witnesses, other expert reports)

Post-Hearing: ReasonsBaker (SCC 1999) Entitlement to reasons and adequacy of reasons depends on the context- There was a duty to give reasons BUT the reasons that were given when requested (Lorenz’s notes) were the

reasons for the decision and they were adequate to meet the duty to give reasons- General position at CL: the duty of fairness does NOT require that reasons be provided for admin decisions- HOWEVER, in certain circumstances, procedural fairness will require reasons

o I.e. where the decision has important significance, when there is a statutory right of appeal, etc- The importance of the decision weighs in favour of requiring reasons in this case- However, duty was met because the appellant was provided with notes from Officer Lorenz

Lake (2008, SCC) Consider whether “purpose” of reasons is met. Ministers not held to the same standard as judges- Facts: This case is about ministerial discretion about extraditing someone. In an earlier case, the SCC said you

had to take into account multiple factors when using ministerial discretion. The minister in this case gave reasons but they were quite brief. The minister’s decisions were challenged for being inadequate because they didn’t discuss all factors from the past SCC case.

- Held: the reasons were sufficiento They didn’t need to be comprehensive. There was some reference to the factors set out by the SCC in

precedent and it was okay for the Minister to focus on the factors that were the most relevanto Purpose for reasons set out in this case by the SCC:

Allow the individual to understand why the decision was made this was met Allow the reviewing court to access the validity of the reason (instrumental value) also met

- Note: Where there is a statutory standard that applies: if X, Y, and Z exist, the minister may [do something]….reasons should show that the Minister considered X, Y, and Z.

VIA Rail (FCA 2001) Reasons given were “overbroad” and thus inadequate- Facts: VIA ordered to take a number of corrective measures regarding the accessibility of their trains,

particularly their special passenger tariff that provides that an attendant who is capable of providing assistance to a disabled person who is unable to travel alone is entitled to travel for free.

- Issue: whether or not the Agency erred in law by failing to articulate adequate reasons for its findings that the tariff constituted an “undue” obstacle to the mobility of disabled persons

- Outcome: the reasons were inadequate - Reasons:

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o In this case, the FCA put forward more purposes for reasons: Ensures you don’t overlook arguments; rather you address them in the reasons Provides guidance to the parties and to others with respect to what the law is

o The FCA held that the agency’s reasons as to why Via’s policy was an undue obstacle were not adequate because the agency did not show its reasoning process - it just stated the conclusion

Remedies & Remedial Discretion

Zahab (1991, Ont Div Ct) Even though an appeal de novo was proceeding concurrently, court granted JR- Facts: A hospital board suspended Z’s hospital privileges. The statute provided for an appeal to an AT by way of

a hearing de novo. Z invoked this admin appeal process but at the same time, sought JR of the initial decision. - Held: the existence of the appeal process did NOT in this case "save the situation"

o The revocation had immediate serious consequences for Z and he would suffer irreparable damage to his reputation because of it.

- Remedy: the court quashed the initial suspension decision and reinstated Z’s hospital privileges, pending the re-hearing that would occur in the admin appeal process.

Harelkin (SCC 1979) Factors to consider re: adequate alternative remedy- Facts: A student was required to withdraw. His appeal to a university committee was dismissed without a

hearing. He then applied for JR, rather than pursuing the available right to appeal to a committee of the University Senate.

- Issue: Was the appellant’s right of appeal to the Senate Committee an adequate alternative remedy? - Outcome: the right of appeal to the senate committee WAS an adequate alternative remedy- Reason:

o The principle that certiorari and mandamus are discretionary remedies by nature is clearo Factors that should have been considered regarding the alternate procedure:

The procedure on appeal The composition of the senate committee and its powers The burden of a previous finding Expeditiousness, costs… The autonomy of the DM entity If it’s a trial de novo, look at whether they have enough expertise to do this

o The appellant was not entitled to assume that the Senate Committee would have denied him a hearing or that they also wouldn’t have followed PF

o Here the appeal is more likely to be de novo b/c nothing indicates that the council committee’s record shall be transferred to the senate committee

o Also, the general intent of the Legislature favours internal resolution of issues and thus the university should have been given a chance to correct its own issues

Cardinal v. Kent Institution (SCC 1985) Futility argument- Facts: Some prisoners had been segregated from the rest of the prison. The Segregation Review Board

recommended the segregation should end, but the Director decided to continue it w/o a hearing.- Held: the Director’s decision breached procedural fairness.

o However, prison officials then argued that no remedy should be granted because the breach did not matter: the prisoners had not been prejudiced by the breach because the Director would have decided to continue the segregation even if he had heard from the prisoners.

o The S.C.C. REJECTED this argument, holding that once a breach of procedural fairness is found, the court should not consider whether the result would have been the same even if PF had been met.

Lakeside Hutterite Colony v. Hofer (SCC 1992) PF required even if the ultimate conclusion would be the same - Facts: No notice/hearing provided regarding the expulsion of the plaintiff from his colony on the grounds that

his behavior was inconsistent with the Hutterite way of life. The Colony argued that the decision would have been the same even w/ a hearing, because nothing the plaintiffs could have said would have changed the colony's judgment.

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- Held: "…natural justice requires procedural fairness no matter how obvious the decision to be made may be. It does not matter whether it is utterly obvious that [the plaintiffs] would be expelled. Natural justice requires that they be given notice of a meeting to consider the matter and opportunity to make representations concerning it. This may not change anything but this is what the law requires."

Mobil Oil (SCC 1994) Exception to the Futility Rule where BY LAW the outcome MUST be the same even w/PF- The Court held that a breach of PF had occurred. However, in the exceptional circumstances of the case, the

Court refused to grant a remedy because, as a matter of law, it was absolutely clear that only one decision could ultimately be made. It was therefore nonsensical to compel a hearing of the matter.

o The decision-maker in question would be bound in law to reach a particular outcome. o A re-hearing would be absolutely and obviously futile.

NEMO JUDEX IN SUA CAUSA (BIAS)

Baker (SCC 1999) Affirmation of the RAOB test from Committee for Justice and Liberty; bias found- There was a RAOB in the circumstances (Lorenz’s notes showed bias)- PF requires that decision be made free from a RAOB by an impartial decision-maker- Test for RAOB was set out in the dissent of the Committee for Justice and Liberty: “the 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”

- A well-informed person would perceive bias when reading Officer Lorenz’s comments in this case

R.D.S. (SCC 1997) Judge NOT found biased after statements made about race & POs- Facts: White PO arrests black teen. Teen charged with resisting arrest. Judge said POs have been known to

mislead the court in the past and have been known to overreact with non-white groups. - Issue: did the Judge’s comments give rise to a RAOB? - Majority (Cory J.)

o The judge was close to being biased – but she did not cross the line. o The threshold for a finding of real or perceived bias is higho The requirement of neutrality does not require judges to discount their life experiences or existing

attitudes – it is inevitable that judge’s backgrounds will inform their decisionso But they must keep an open mind to different views.

- McLachlin and L’Heureux Dube:o The judge’s comments were not biased – they were not even close to the lineo The RAOB test embodies the reality that judges can never be neutral, their backgrounds will always

inform their decisions. o However, this should not only be tolerated – it is desirable and should be encouraged. o A judge’s awareness/experience with the social context of a case ensures a fair trial.

- Dissent:o There WAS a RAOB; the judge had stereotyped all officers – there was no evidence to suggest that this

PO was racist. Life experience is NOT a substitute for evidence.

Moreau-Berube (SCC 2002) Derogatory comments by a judge (+ apology) found to lead to a RAOB- Fact: The respondent, a judge of the New Brunswick Provincial Court, made derogatory comments about the

residents of the Acadian Peninsula while presiding over a sentencing hearing. - Held: There was a RAOB

Bennett and Doman (BCCA 1993) Indirect pecuniary interest when competitor is a d-m- Facts: Doman was subject to a disciplinary hearing before a panel under BC’s Security Act. One of the three

panel members was Devine. Doman is the president of one of Devine’s competitors. He argued that he could not get a fair hearing because Devine had an indirect pecuniary interest in the outcome of the case.

- Issue: was there a reasonable apprehension of bias because of this competition?o Devine had an indirect pecuniary interest in the decision: Devine is Doman’s competitor; if Devine finds

against Doman, Doman’s company will suffer; if Doman’s company suffers, the competitor company will 31

benefit; if Devine’s company benefits, Devine himself will benefit.o Test to be applied: RAOB test: there IS a RAOB, despite remoteness of the indirect pecuniary

interest and the fact that any benefit is contingent on several things happeningo BUT: this is as far as the bias test should be pushed “the concept of RAOB is being taken as far as it is

rational for it to be taken”- Remedy: the decision of the other two members stands – they were not tainted by Devine’s bias

o If the panel would have been further along, perhaps all would have been disqualified. That is the norm in groups of three.

o In a strong bias case, the court may quash the whole decision even if there is only one person who had the bias, or they may just say that the bias related only to the one person and look at how the others decided.

o The remedy is usually for the decision to be retaken. In this case, the remedy reflects the fact that this case is on the border of the RAOB test

Marques v. Dylex (Ont Div Ct 1977) Association between party and d-m- Facts: Employer challenged a decision of the Ontario Labour Relations Board to certify a union because one of

the members of the board had been a lawyer of a firm that acted for a union that became part of the union that was certified (even though the board member had no contact with this specific client).

- Issue: is there a RAOB?- Held: no RAOB despite the connection

o No prior involvement in this particular application for certificationo This application arose after the person had already left the law firm (over a year ago)o Over a year had passed since the board member had anything to do with the uniono Context: The people chosen to be chairs have labour relations expertise – so there will often be people

familiar with the parties. - Contrast Ontario Hydro v. Ontario (Energy Board) where the company successfully disqualified one of the

members of the Energy Board on the basis that he had worked for the company before and this might be detrimental to the company. This was about conflict of interest and not RAOB.

- Further variation in CNG Transmission Corporation v. Canada (National Energy Board) – CNG set up a meeting with reps from the Energy Board by calling the Chair personally (not going the usual protocol of contacting the secretary) This was held to be a RAOB. Appearance of “chumminess”.

Yusef (Man CA 1967) Personal animosity case- Members of a panel of the Immigration and Refugee Board had engaged in a CE of a Convention refugee

claimant and made inappropriate comments and used demeaning language, because of a personal dislike.

BC Nurses Union (BCCA 1977) Prior involvement, new panel needed, issue of credibility- Facts: Arbitrator found that a nurse’s was evidence not credible after allegations that she had shaken a baby.

She appealed to the Labour Relations Board. Case was sent back to the same panel. Union appealed.- Held: Appeal allowed, it should go back to a new d-m because otherwise it would give rise to a RAOB. - Remission to the original tribunal not feasible because the arbitrator had found that the nurse was not credible

– the arbitrator cannot clear this lie from their mind and render an impartial decision.

Township of Vespra (Ont Div Ct 1983)Prior involvement, new panel needed, statements + refusal of evidence- Facts: a hearing remitted back to the original panel seven years later but the panel refused to allow Vespra to

present any new evidence at all. Appealed on grounds of RAOB.- Held: it is a breach; the court ordered that the case be sent to NEW panel.

o 2 things point to bias: Original panel had made very strong statements against Vespra’s interests in their findings

(probably wouldn’t have been enough on its own) Refusal to hear new evidence

o Note: these 2 together mean new panel necessary BUT just one alone likely not enough in most cases. o Normally, it is fine for a decision to be sent back to the original d-m. But if there were particular

“vehement” reasons given at the first hearing...then it likely shouldn’t go back to that d-m.32

Committee For Justice and Liberty (1978, SCC) Prior involvement case, RAOB- Facts: National Energy Board had a hearing to consider competing applications for a pipeline. Chairman had

previously been part of a group that had set up one of the companies competing for the pipeline. - Issue: Does the Chair’s prior involvement in the group raise RAOB? - Held: there WAS a RAOB

o The court considered: The nature and degree of prior involvement: VERY close in this case (small study group) Recency: only two years had passed since Crowe left the study group

o The relationship between the Chair and the company was personal and extensive, specific, and it was a recent relationship.

o The facts DO give rise to a RAOB, which reasonably, well-informed persons could properly have. Although this is not a traditional adversarial process, there are competing applicants Chair had a hand in developing and approving important underpinnings of the very application

which was brought before the panel- Dissent (DeGrandpre):

o Bias is a spectrum and the question of bias in a member of a court of justice cannot be examined in the same light as that in a member of an admin tribunal entrusted by statute w/discretion

o In this case, the Board is not a court – it is not a quasi-judicial body. It is a polycentric decision – involves public interests at large. Thus, there is no bias.

Wewaykum (2003, SCC) Prior involvement case: application of the two-part test; RAOB NOT found - Facts: Band argued that an SCC decision should be set aside on grounds of bias b/c Binnie was Associate

Deputy Minister of Justice in 1982-1986. There were a number of internal memoranda which indicated that in late 1985 and early 1986, Binnie had received some info concerning the Bands’ claims and that he had attended a meeting where the claim was discussed.

- Issue: did Binnie’s involvement during the early stages of the claim give rise to a RAOB? - Held: NO reasonable apprehension of bias

o Bias is a spectrum – this is a case about judicial impartiality and so we are at the very high end of the procedural fairness spectrum. The highest standards of impartiality are required.

o Test to be applied: RAOB test for prior involvement Nature and degree of prior involvement

His involvement in the dispute was confined to a limited supervisory role – he was never counsel of record and played no active role after the claim was filed.

He was responsible for thousands of files at the relevant time Recency

His supervisory role dates back over 15 years – this is a lengthy period, and he says he has no recollection of his involvement.

o A reasonable person would not conclude that Binnie’s ability to remain impartial was unconsciously affected by a limited admin and supervisory role dating back over 15 years.

o NOTE: even if the involvement of a single judge had given rise to a RAOB in this case, no reasonable person informed of the d-m process of this Court and viewing it realistically could conclude that the eight other judges who heard the appeals were biased or tainted.

Brosseau (1989, SCC) There can be overlapping functions (no RAOB) if statutory authorization- Facts: The chair instructs staff to investigate company; staff investigate and prepare report; chair received

report, and, after reviewing it, decided that a hearing should be held; chair plans to sit on the hearing. Allegation of bias arose due to “overlapping functions” of the ultimate d-m.

- Issue: should chair be disqualified due to RAOB because he had been involved with the file all along?- Held: no

o Consider the defence of statutory authorization: the Securities Act, by necessary implication, was construed as having implicitly authorized the overlapping functions between the investigative and the adjudicative stage of the process (friendly approach to the statute here!)

Note: the statute did NOT explicitly say the statute allowed the chair to do this; therefore, L’H-D 33

looked at the whole context to find implicit authorizationo L’H-D: although there is a general principle that the same person should not act as both investigator

and adjudicator because this raises a RAOB, if the overlapping functions are authorized by statute, and if there are no constitutional grounds on which the validity of the statute can be challenged, the courts cannot intervene

Commission is not meant to act as a court In a specialized body such as the Commission, it is more than likely that the same d-ms will have

repeated dealings with a given party on a number of occasions and for a variety of reasons Note that this is also an economic regulation case – courts tend to back off in this area.

Quebec Inc. (1996, SCC) Overlapping functions case: “institutional impartiality” test The court took an “unfriendly approach” considered what COULD happen under the statute, NOT what DID happen Why? To ensure public protection & visible barriers - Facts: The Régie decided to revoke two permits because the licensee was found to have committed infractions.

This decision triggers s. 23 of the Quebec Charter because it is quasi-judicial, therefore the company has a right to a fair, equal and public hearing before an independent and impartial tribunal (quasi-constitutional guarantee). The licensee argued the Régie did not meet the standard of being an “independent and impartial” tribunal.

- Outcome: The Régie was NOT sufficiently impartial at an institutional levelo The SCC used the INSTITUTIONAL IMPARTIALITY TEST: would an informed person, viewing the

matter realistically and practically, and having thought the matter through, apprehend a real likelihood of bias in a substantial number of cases [because of the institutional aspect that is being complained out]?

Apply this flexibly to take into account the particular admin contexto Problems:

It is possible that the same lawyer might do three things that would overlap: (1) file and investigate a complaint; (2) present the cases to the Régie decision maker, and (3) they might help the adjudicator make the decision

It is also possible that the same person might have overlapping functions: they could (1) investigate; (2) decide to hold hearings; (3) appoint and sit on the panel

The SCC said this potential did give rise to a RAOB in these types of cases The SCC said there needs to be visible barriers so the public can be sure there is impartiality

- Remedy:o The court did NOT have anything declared ultra vires because the statute did not require that one

lawyer would do all these functions o Rather, there had to be internal operational controls with respect to how the staff operated

- NOTE: Brosseau compared to Quebec Inco The difference may be rooted in the application of the Quebec Charter in the later easiest explanationo Crane: Court should have looked at what was actually happening rather than what might happen

Bell Canada v. CTEA (2003, SCC) Gov can make regs, appear before AT interpreting those regs w/o RAOB- Facts: Human Rights Commission would be representing complainant against Bell Canada. Bell tries to argue that

the Tribunal is disqualified b/c their independence and impartiality is compromised for two reasons: o 1st Argument – Lack of Impartiality: Commission had right to make guidelines that were binding on the

Tribunal; this leads to a lack of institutional impartiality and a problem of institutional independenceo 2nd Argument – Lack of Independence: Chairman of tribunal had power to extend the term of tribunal if they

are engaged in a matter at the time their term expires; tribunal member might want to bow to wishes of Tribunal Chair

- Held: there are NO violations in this case o SCC focuses on CONTEXT of the decision (spectrum idea)

Human Rights Tribunal is on the adjudicative end of the spectrum (high-end)o SCC finds that the guidelines made by Commission are NOT a problem (Issue 1) overlap is acceptable

This is common occurrence – gov agencies make regulations and then appear before tribunals interpreting those regulations

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No reason that the d-m would be biased just b/c they are applying laws or regulations made by one of the parties (courts do this all the time when the gov is a party in a case)

o SCC also finds that the “term extension power” is NOT a problem (Issue 2) Bell Canada was trying to argue that this meant there wasn’t sufficient security of tenure (Valente)

Members might decide the case in favour of the Chair to get their term extended SCC finds that the term extension power is only an extension to finish the case in question, so there

is no reason that the Chair would decide the case in favour of the Commission since their term is not extended beyond the case in question

Paine (ONCA 1980) Attitudinal bias case: in this case context allowed for tolerance of opinions from d-ms - Facts: Paine is denied tenure. Peer-review process. One of the reviews was negative and this person had

maintained this attitude for quite some time; this same person ends up on the tenure committee after having expressed that opinion.

- Held: no RAOBo This is a clear process; it involves peers; everyone knows from day 1 that they are being

watched/considered for tenure. It’s inevitable that people with pre-conceived ideas will end up on tenure committees

o Therefore, because of the nature of the process, there was a great deal of tolerance for general opinionso If there was a particularly acrimonious relationship between the d-m and the professor, then perhaps

that would not be appropriate.

Gale Case (1993, Ont. Div. Ct) Attitudinal bias: involved with a similar case as a complainant- Facts: Professor was appointed to adjudicate a sex discrimination case under the Ont HR Code. Complaints

arose because she was a known advocate of gender equality. Issues also arose because she had been involved in a sex discrimination case in 1987; in 1989 a settlement was reached. However, the complaint was not disposed of at that point, even though it was inactive. Professor did not excuse herself from the current adjudication, but asked the HRC to take her name off the previous sex discrimination case.

- Issue: was there a RAOB?- Held: yes

o Being a complainant in the old case was enough to disqualify hero The current matter was related to the old case and there was NO precedent, so she could set precedent

in one case that would impact the other case she was a complainant ino Therefore, they did NOT disqualify her with respect to her general stance as an advocate; it was only on

a narrow ground o Human rights bodies are at the high end of the spectrum in terms of what is needed for PF

Large (1992, Div. Ct) Attitudinal bias case: strong views do NOT automatically create a RAOB- Facts: Prof Kerr was sitting on a board deciding an age discrimination case about whether mandatory

retirement at age 60 for POs was a BFOR. Kerr rules that it was NOT a BFOR. After that decision, but BEFORE he actually decides the remedy, Kerr makes some comments in the media acting as the President of the Canadian Association of University Teachers; he makes public comments that are generally unfavourable about mandatory retirement for university professors.

- Held: there was NO RAOB o Kerr was not commenting on mandatory retirement per se, he was commenting on whether it was

appropriate in a particular case. Everything he said was consistent with the fact that mandatory retirement COULD be considered in line with BFOR

o “Human rights inquiry boards are drawn from those who have some experience and understanding of human rights issues. To exclude everyone who ever expressed a view on human rights issues would exclude those best qualified to adjudicate fairly and knowledgeably in a sensitive area of public policy.”

o Expertise is one of the reasons that boards are created and the SCC gives deference to ATs for that reason.

o Generally, just the fact that you have expressed strong opinions is not enough to disqualify you...

Energy Probe (1984 FCA)35

Pecuniary interest case: set out the test for direct pecuniary interests – must be “sufficiently certain to arise”- Facts: The Board is deciding whether to renew Ontario Hydro facility. Energy Probe (an interest group)

claimed that Olsen (on the Board) is biased – he owned a cable company who sold cables to Ontario Hydro. - Issue: Is there a RAOB on the basis of a direct pecuniary interest? - Held: No direct pecuniary interest.

o For a direct pecuniary interest to constitute bias, there has to be a fairly serious level of certainty that the d-m will benefit/suffer economically before there will be found to be a direct link and automatic disqualification.

o Ontario Hydro always took tenders, so not certain that he would even receive the contract or any financial gain. There was no conditional K awaiting the decision to renew. An ongoing K may be different.

o Crane says: this is a pretty high standard, but that makes sense since the exclusion is automatic. o Note: they ONLY argued direct pecuniary gain – not an indirect pecuniary interest resulting in RAOB. So

the judge did not consider that. (bad move by counsel)

Imperial Oil (2003, SCC) Pecuniary interest case: do a contextual analysis- Facts: Minister ordered Imperial to do an environmental clean-up. Imperial argued a lack of

impartiality because the Minister had previously been involved in supervising failed decontamination attempts at this site.

- Held: No bias problem. o There is a lot of attention paid to the contextuality of the decision in this case

Look at statutory framework All the powers of the Ministers The objective of the Act The scheme of the Act – polluter pay principle etc.

o Minister’s obligations of impartiality are NOT the same as a judge – Minister is a manager of an environmental protection system in this case, protecting public interest etc.

o Minister is exercising a discretionary, political power. He’s implementing legislative policyo No personal financial interest – this is about the public interest and the common good.o SCC finds no need to rely on necessity or statutory authorization etc

This case fell at the very low end of the PF spectrum

Pearlman (SCC 1991) Can argue an INDIRECT pecuniary interest and then apply the RAOB test- Facts: Under their enabling Act, the Law Society could get costs of an investigation into misconduct from a

lawyer found guilty. Pearlman argued that the Law Society had an INDIRECT pecuniary interest in finding him guilty, because if he lost, the Law Society would be awarded costs; this money would add to the overall revenue of the Law Society; the Law Society could use this revenue to lower membership fees; a reduction in membership fees would benefit the individual d-ms and this created a RAOB.

- Held: applying the RAOB test shows that there is NO RAOBo Must look at the context: a self-regulating profession which has set up formal structures for maintaining

the discipline and standards of conduct appropriate to the legal professiono There are no profits – the costs that the Law Society would get if they win are just reimbursements for

expenses incurred in the investigationo The indirect pecuniary interests are too attenuated and remote to give rise to a RAOB

They would go to the entire Law Society – not to individual members of the committee It is too speculative to say that the money would be used to reduce fees

o Even if the costs were applied in such a manner as to reduce bar fees, it would still be unreasonable to conclude that this would like to a likelihood of bias - the amounts are so low

- Note: Pearlman raised a s.7 Charter argument here because there is statutory authorization for the alleged biaso Bias is a CL principle, it can be overridden by statutory authorization. Thus he had to resort to Charter.

Burnbrae Farms (1976, FCCA) Statutory scheme can preclude RAOB; pecuniary interest; institutional bias

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- Facts: A disgruntled egg producer withheld a levy imposed by the CEMA. The agency withdrew its licence. The producer sought JR on several grounds, including bias, because some of the members who participated in the hearing were producers in other provinces and their interests therefore conflicted with the producer’s. Regulations involved in this case required that at least 7 of the 12 members had to be producers in other provinces.

- Held: with this type of statutory scheme, no RAOB can be based on the fact that some members have an economic interest that conflicts with those of a particular licensee

Moskalyk-Walter (1975, Ont Div Ct) Pecuniary interest prevents peers sitting on AT- Facts: AT imposed a suspension on a pharmacist in a small town. Other pharmacists were on the board.- Held: RAOB found because of indirect pecuniary interest

Matsqui (1995, SCC) Indirect pecuniary interest too remote- Company doesn’t want to pay tax in the Indian system. Argued that the Indian AT would be biased because the

more that they could tax businesses like CP, they would be able to reduce taxes to personal landowners, and members of the board would have their own taxes lowered.

- Held: No RAOB- Reasons:

o There is clearly an important interest in having band members sit on appeal tribunalso Important to support Aboriginal self-govo The pecuniary interest is too remote here – no certainty of any of this!o Plus, some people might actually want the taxes to be lower to attract investment on reserve.o The benefit of the taxes is going to the community as a whole – this is a communal interest

Any type of municipal system would be the same – there has never been a problem with this.

o Any allegation of bias must be dealt with on a case-by-case basis

OSBRA (1990, SCC) Relaxed standards test for Municipal Councillors - Facts: Winnipeg municipal councillor was involved in a municipal approval process for a residential

development that required a change of zoning. He had spoken in favour of the project at in camera meetings. He became a member of the community committee that would decide the issue.

- Issue: do the rules of natural justice apply to local gov bodies & is there a RAOB?- Held: the rules do apply but there is no bias based on the new relaxed-standard test

o Statements by individual members of Council while they may very well give rise to an appearance of bias will NOT satisfy the test unless the court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged

This is the “open mind standard”: the d-m has to remain amenable to persuasion; the d-m must not have a closed mind; representations made must not be futile; the d-m must not express the final opinion from which he/she cannot be budged

IMPORTANT: this test ONLY applies in special situations Why? Municipal councillors are elected; they will be involved in multiple stages of the

process, they are supposed to get elected on certain issues On the other hand, the hearing is not supposed to be futile!

What would amount to pre-judgments in other contexts might be okay in this context BUT if it’s something like a personal involvement (i.e. a relationship, or if the municipal

councillor had some monetary interest in voting one way or another) you apply the regular test for RAOB

o How do we know if this “closed mind” standard has been breached? It’s very difficult to meet this test, there has to be objective evidence of a closed mind; absolute

and final judgement on the issue In Save Richmond, the court found that there was no evidence of a closed mind although he said

a number of things that could have made it seem like one: i.e. “I will listen attentively but I will not change my mind” and “it will take something significant to change my mind”

The court did NOT see this as pre-judgment, even though with the normal test (not the relaxed

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standard) it would show biaso Also note: in this case, there is nothing in the legislation to indicate that the committee members are to

act in a capacity other than municipal councillors (i.e. as impartial decision makers)

Save Richmond (1990, SCC) Application of the “relaxed standard” test - Facts: M gave an interview to the press in which he allegedly said that, while he would listen attentively at the

public hearing, he would not change his mind. Later said that it would take something significant for him to change his mind. Save Richmond petitioned for JR to prevent M from voting and further participation because of a disqualifying RAOB.

- Issue: what is the standard of fairness owed to the participants in this hearing process? - Held: No RAOB on the basis of the relaxed standards test from OSBRA. Therefore, M was allowed to participate- Minority (La Forest):

o In this case, the d-m process is at the legislative end of the spectrum (low PF)o The municipal councillors should be able to say anything. o Context: This doesn’t make the public hearings a sham b/c the Legislature knows that ppl who are

called on by the statute to make the decisions will often have run for office based on their position on the issue

- Comparison of the views of majority vs. La Forest:o Majority would say that the hearing will have some effectiveness if the dm doesn’t have a closed mindo Minority would respond that it’s up to the legislature to therefore make changes to give purpose to the

hearing – should be allowed to have a closed mind

Newfoundland Telephone (SCC 1992)Relaxed standard: use “bifurcated approach” for policy-oriented ATs- Facts: Newfoundland Telephone wanted rates increased. They appealed to the Board of Commissioners. Wells

was on the Board, he made several strong statements against the company’s executive pay policies before and during a public hearing.

- Issue: Did Wells’ public statements give rise to a RAOB? - Held: yes, but only because of public statements made after the hearing had started

o The Board of Commissioners is a polycentric decision making body Not adjudicative, deals with matters of policy, lots of interests at stake, public interest is key

o The court decided, in cases such as this, they should use a bifurcated approach BEFORE the hearing used the relaxed standard test – closed mind standard (OSBRA, Save

Richmond) DURING/AFTER the hearing use the RAOB test, applied somewhat flexibly (for attitudinal bias)

o The regular RAOB test applies to the comments made after the hearing started those comments raised a RAOB, as he made specific comments about the issue he was deciding.

Pelletier (2008, FCTD) RAOB found in the sponsorship scandal inquiry; regular test used because of the context - Facts: In the middle of the public inquiry into the sponsorship scandal, d-m says a number of things about

Pelletier (Chief of Staff), Chretien, and their involvement with the scandal.- Issue: was there was RAOB?- Held: yes

o They applied the Baker factors to determine if there needs to be PF High level of PF because of the reputations of the two individuals were at stake

o What level of PF is required? PF requires decisions be made free from a RAOB by an impartial decision-maker (Baker) The standard of impartiality expected of a d-m is variable depending on the role and function of

the d-m involved (Newfoundland Telephone) They held this d-m falls within the middle and high end of the spectrum because this isn’t

policy, there is fact finding involved…and thus the RAOB standard applies Although, this isn’t a court so it can be applied flexibly

o Found: the cumulative effect of the media statements were a RAOB. There was evidence of pre-judgment

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Independence

Matsqui (SCC 1995) Lack of institutional independence found wrt AT- Facts: Band wants to tax corp. Internal appeal process that the corp wants to bypass.- Issue: were the appeal boards independent? (links up to whether they are a sufficient alternative remedy)- Held: on the independence issue, there was no clear result! Ultimately a 5-4 saying that the FCA decision stands

and this question can be addressed via JR, the internal appeal is not an adequate remedy.- Sopinka wrote for 4 judges and said there was no basis to challenge independence at this time

o The entities were just being established; shouldn’t speculate at this pointo Operational reality We need to wait to see how it actually works.o “Before concluding that the by-laws in question do not establish band taxation tribunals with sufficient

institutional independence, they should be interpreted in the context of the fullest knowledge of how they are applied in practice”

o It is unclear whether the tribunal members who are to hear the tax appeal have even been appointed; tenure and remuneration may be established by the bands upon appointment

o Sopinka’s views ended up being the relevant law after this case regarding operational reality- Lamer and Cory believed the case could be decided now

o Would be an adequate alternative remedy BUT they lack sufficient independenceo The by-laws contained no guarantee of remunerationo While ATs are subject to the Valente principles, the test for institutional independence must be applied

in light of the functions being performed by the particular tribunal at issue The requisite level of institutional independence will depend on the nature of the tribunal, the

interests at stake, and other indices of independence such as oaths of office In some cases, higher levels will be required. This case is about taxes – lower PF

o Considering the facts: In terms of security of tenure, the members are to be appointed each year – this raises concerns The Chiefs and Band Councils select the members of their tribunals, in addition to controlling

their remuneration and tenure The oath cannot act as a substitute for financial security or security of tenure

o Even a flexible application of the Valente principles leads to the inevitable conclusion that a reasonable and right-minded person, viewing the whole procedure in the assessment by-laws, would have a reasonable apprehension that members of the appeal tribunals are not sufficiently independent. Three factors lead to his decision:

There is a complete absence of financial security for members of the tribunals Security of tenure is either completely absent or ambiguous and therefore inadequate The tribunals are being asked to adjudicate a dispute pitting the interest of the bands against

outside interest; the tribunal members must determine the interests of the very people to whom they owe their appointments – so this makes the above two issues particularly acute

o Note: only one of these factors may not have led to this conclusion- NOTE:

o Three judges abstained from any comment on independence they decided on a different groundo Therefore, 6 judges agreed about the independence issue and disagreed about when to make the

decision - Note: this type of test only applies at high-end tribunals – the Valente test was developed for judicial

independence (Valente)

Quebec Inc (1996, SCC) Security of tenure and institutional independence both found- Facts: The statute specified that the Board members had fixed terms of up to five years but in reality, they were

appointed for 2, 3 or 5 years. Once appointed, at least judging by the evidence, the directors can be dismissed only for specific reasons.

- Issue: was there security of tenure (related to sufficient independence)? Yeso NOTE: consider OPERATIONAL REALITY! o Gonthier found that the directors’ conditions of employment meet the minimum requirement of

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independenceo Fixed term appointments, which are common, are acceptable; however, the removal of adjudicators

must not simply be at the pleasure of the executive o In this case, the employment Ks provide expressly that the directors can only be dismissed for causeo Therefore, the directors have sufficient security of tenure within the meaning of Valente

- Issue: was there institutional independence? Yeso It was suggested that the large number of points of contact between the Regie and the Minister of

Public Security was problematic. But in light of the evidence as a whole, Gonthier did not consider these to lead to a reasonable apprehension with respect to institutional independence

o It is not unusual for an AT to be subject to the general supervision of the executiveo The directors swear an oath requiring them to perform the duties of their office honestly and fairlyo The minister’s links with the various parties involved are accordingly not sufficient to raise concerns

Ocean Port Hotel (2001, SCC) Statutory authorization provided a complete defence- Facts: Licensee claimed that the Liquor Appeals Board was not sufficiently independent from the executive

branch because the members of the Board were appointed at pleasure (no security of tenure). Note: the SCC in Quebec Inc said “at pleasure” was not good enough for institutional independence.

- Held: statutory authorization acted as a complete defence – it said no security of tenure o The Court held that tribunals are NOT courts; they are part of the executive brancho Therefore, there is no general constitutional guarantee of independence (no Charter here)

But if s. 7 was at issue you could argue the case requires independence and trumps the statute Note: different than Quebec Inc. because the Quebec Charter does NOT apply in this case

Sethi (1988, FCTD) (Not on exam!)- Facts: Sethi claimed to be a convention refugee and the Minister agreed; he applied for a redetermination and

claimed a RAOB because there was a bill before Parliament that was going to abolish the Immigration Appeal Board without any rights of compensation for the remainder of their terms; they were going to create a new system with a new board. There was nothing that indicated that the members of the old board would not be eligible to sit on the new board; they MIGHT be. It was argued that the Board members might decide their cases differently in the next few months because this process is looming; it was argued they may want to favour the gov to ensure they will be put on the new board.

- Held: the FCA held there was no problemo If you’re going to make this argument you have to argue that the way to please the gov is to decide in

favour of the original immigration officer’s decision We can’t say the gov has an interest in always finding in line with the immigration officer

therefore this argument does not stand o Also, the court could not accept this argument because they always accept that people can have limited

terms and can be reappointed

The Legal Effect of Bias

Retired Judges (2003, SCC) Statutory authorization can be trumped by rights documents- Facts: Under the HLDAA, the Minister could appoint a third member to a compulsory arbitration board.

Traditionally, the third member was appointed from a list of arbitrators who were mutually acceptable to both management and unions. In 1998, the Minister appointed four retired judges to chair several HLDAA arbitration boards; they were not on the “agreed list”. Although this was an issue between the hospital and the workers, funding for healthcare comes from the gov so the Minister could be seen to want to appoint arbitrators who would favour the hospital.

- Issue: was there a RAOB, requiring that the Minister delegate his appointment duties to someone else?- Held: yes, but statutory authorization was a TOTAL DEFENCE

o The Minister has an indirect pecuniary interest in the outcome of disputes Retired judges are more likely to decide in favour of hospitals in wage/labour disputes (?) Gov can maintain lower wages Wages are the primary determinant of healthcare costs, and so healthcare costs stay low Gov revenues go up

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Indirect pecuniary interest to the Ministero Despite this pecuniary interest – the CL bias rule can be ousted by express statutory language or

necessary implication Absent a constitutional challenge, a statutory regime expressed in clear and unequivocal language

on this specific point prevails over common law principles of natural justice Here, the legislature specifically conferred the power of appointment on the Minister. He can

appoint whoever he wants and can choose whatever method to appoint – the statute is clear and unequivocal

This is reinforced by the legislative context Even in 1965, when the HLDAA was enacted, provincial funding of health care was such that it was anticipated by opposition members of the legislature that Ministers of Labour would be interested in outcomes of arbitration. The legislature nevertheless proceeded to confer the power on the Minister

Note: this is different than federal cases because the union cannot rely on the CBR to trump the statute, which they would need because s. 7 of the Charter does not apply in this case

MacBain (1985, FCA) Prior involvement; Statutory authorization can be trumped by rights documents- Facts: A sexual harassment suit was launched against MacBain in the federal human rights realm. The usual

system applied. Key problem: when it came time for the CHRC to send this to a tribunal, the chief commissioner gets to look at the list of potential tribunal members that has been created by cabinet and pick which ones will sit on the tribunal – essentially, one of the parties get to pick the adjudicator. (a person may be more inclined to favour the Commission’s position as a result, so that they get paid, get chosen again)

- Issue: Does this give rise to a RAOB?- Held: Yes, and although this was authorized by statute, the Canadian Bill of Rights applied to trump it

o The concern is that the tribunal might believe, if they find in favour of the CHRC, they might be appointed again next time (in future cases) and that it will lead to more money

o The commissioner, when looking at the list, can pick who would be the most favourable (note: whether or not the commission actually does that doesn’t matter; public perception does)

o In this case, MacBain’s statutory right not to be discriminated against was at stake The PFJ’s were trigged under s. 2(e) of the Canadian Bill of Rights – the obligation in question is

the obligation not to discriminate- Remedy: they hurried legislation through to change the process- Note: the BC statute regarding human rights does NOT authorize this type of system BUT if it did, the statutory

authorization defence would have applied (but NOT the CBR because that only applies to Federal tribunals)

PART III: SUBSTANTIVE REVIEW

INTRODUCTION TO SUBSTANTIVE REVIEW

There are two basic sources of jurisdiction to engage in substantive review:- Appellate Review: exists ONLY if the statute grants a right to appeal to a court

o Scope of appeal depends on the wording of the provisiono Remedies are normally (not always) included in the provision; normally includes the power for the

court to substitute their own decision o Where an appeal provision allows for an appeal on the basis of “error of law” the starting assumption

would traditionally be that the court is entitled to apply a “correctness” standard (no deference) BUT, nowadays, even where an appeal for “error of law” exists, an appeal court may decide that deference should apply (i.e. use a reasonableness standard) Thus a right of appeal is just one factor.

- Judicial Review: o Provincial : the general supervisory jurisdiction of the superior courts in the provinces to control the

inferior tribunals through the exercise of CL JR powers JR Procedure Act in BC sets out the PROCEDURE, but is not the source of power (you apply for

JR under the JRPA)41

The JR POWER is essentially a CL power, inherited from the courts of England, but it is now recognized to have a constitutional basis in s. 96 of the Constitution Act, 1867 (Crevier)

o Federal : Federal Courts Act provides for BOTH the power and the procedure The FCA applies to federal boards, commissions, tribunals (s.2) Gives jurisdiction to either FC or FCA, as set out in s. 28 of the Federal Court Act for the most part the jurisdiction of the Federal Courts in relation to federal administrative law

is exclusive Federal Courts Act also sets out the GROUNDS (not the SOR) for JR application: (s.18.4(1))

(a) acted without or beyond jurisdiction or refused to exercise jurisdiction(b) failed to observe natural justice or procedural fairness(c) erred in law, whether or not the error appears on the face of the record (d) based its decision on erroneous finding of fact made in perverse/capricious manner or w/o regard for the material before it (this is the SoR for challenging a finding of fact)(e) fraud or perjury(f) acted in any other way that is contrary to law

Federal Courts Act also sets out the remedies available under s.18.1(3) Includes all the traditional remedies such as quashing, setting aside, declaring invalid,

ordering tribunal to do anything it should have done, remitting for further hearing

Privative Clauses- Statutory provisions by which a legislature purports to limit the scope of intensity of JR of a statutory D-M’S.- Because of s. 96, a Legislature cannot exclude JR altogether – the most a privative clause can do is limit the

scope of JR and confine it to jurisdictional errors only (Crevier)o The clause CANNOT oust the authority of superior courts to carry out JR on constitutional issues or

jurisdictional errors o Read PCs down to allow for these types of JR (based on the rule of law)

- Two types:o Full/strong: broad language to preclude any form of review by a court, while also establishing that the

decisions of the relevant actor are “final and conclusive” (CUPE)o Weak: “finality” clauses or “exclusive jurisdiction” clauses, typically state simply “sole” or “exclusive”

jurisdiction in certain matters, w/o expressly precluding any review

THE DEVELOPMENT OF THE LAW

Stage 1: Pre-CUPE (only correctness) Use of the “preliminary questions doctrine” to determine jurisdictional questions that could be reviewed- Crevier said that PCs could not oust JR of jurisdictional questions, due to s. 96

o However, they could oust the court’s juridical review powers re: other questionso Therefore, the courts had to determine: what are the jurisdictional questions that can be reviewed?

- To answer this question, the Courts would use the preliminary question doctrineo A jurisdictional question was a question that was preliminary or collateral to the main issue that the

Admin body had exclusive jurisdiction to addresso Example: if the issue is “is this legal picketing,” a jurisdictional question (that could reviewed) would be

“is there a lawful strike?” “is this picketing?” “did you interpret employee right?” etc. You don’t have jurisdiction if you didn’t interpret this right...so courts can intervene. All of these collateral or preliminary questions “go to” jurisdiction, thus the SoR was correctness.

o If it was a non-jurisdictional question, it was non-reviewableo This doctrine was criticized as formalistic and superficial they were seen as devices used by the

courts to meddle in spheres where the legislature had deliberately and explicitly excluded them.o If Courts wanted to, they could frame anything as a question of jurisdiction and review it on a standard

of correctnesso The scope of what was truly immune from JR was very small

Stage 2: CUPE (correctness and PU)

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CUPE puts courts on the path to judicial deference – end of pure “rule of law” approach- Major turning point in admin law in Canada – the decision in CUPE called for restraint by the courts when

reviewing ADMs, even in matters of statutory interpretation- Rejection of the “preliminary question” doctrine- More deference based on PCs

o Dickson said that PCs are a clear signal from the legislature that they want decision of the AT made within its jurisdiction to be shielded from JR on a correctness standard (deference needed)

o Often statutory wording is unclear – no right and wrong interpretationo Recognition that ADMs are not merely “inferior tribunals”, but specialized bodies that possess a

legislative mandate to apply their expertise and experience to matters o Need to respect “specialized jurisdiction” (expertise) of certain boards, primarily when the

interpretation question lies within the heart of the specialized jurisdiction of that ADM. - Switch to defining true jurisdictional questions in a very narrow way- Creation of a new SOR: PU – therefore there were TWO potential SORs when a strong PC was present

o Correctness Still used for questions that go directly to jurisdiction (i.e. questions of law) Note: “correct” means “correct in the eyes of the court” (CUPE)

o PU Matters within the core jurisdiction (that go to the heart of the case) NOT entirely immune

from all review anymore – now there’s a PU standard [so in a way this expands the reviewing role of the Court – so actually in line with “rule of law” theory]

Was the board’s interpretation so PU that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?

The word “patently” signals a highly deferential standard

CUPE v. New Brunswick Liquor Corp (SCC 1979) Recognition of PU standard, more functionalism Landmark case – marked a move towards according more judicial deference to ADMs Recognition of the “patent unreasonableness” standard that survived until Dunsmuir- Facts: CUPE went on a lawful strike, the employers had management personnel temporarily do the job of the

striking workers – CUPE complained this violated the Public Service Labour Relations Act. Section 102(3) stated that during a strike “(a) the employer shall not replace the striking employees or fill their positions with any other employee...” Labour Relations Board upheld the complaint because it understood the provision to read “the employer shall not replace the striking employees [with any person] or fill their position with any other employee.” Definition of ‘employee’ in the statute did not include managers. The employer sought JR.

- Issue: Can the interpretation of the provision be reviewed? Battle is over whether “with any other employee” applies to both “replace the striking employees” AND “fill their position”. ADM agreed with the union that this was a quid pro quo provision.

- Outcome: o Since the question was not jurisdictional, it can only be reviewed on a standard of PU o Decision is not PU and therefore it stands

- Reasons:o Dickson J. canvassed the reasons for the existence of PCs and emphasized the legislative choice to

create ADMs, the specialized expertise and experience of ADM’s, and the virtues of judicial restraint.o Strong PCo He also admits that the provision is ambiguous – no one interpretation could be right. There are several

plausible interpretations the tribunal is in a better place to make the choice (b/c of expertise, etc) o Got rid of the “preliminary question doctrine” method for determining questions of jurisdiction

courts should not quickly brand something as jurisdictional.

Stage 3: Following CUPE Continued trend towards more judicial deference and multiplying SORs

Basic Development of the Law:- In Bibeault, the court started “backtracking” from CUPE (more rule of law, less deference)

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- Then in National Corn Growers the Court said it would not interfere with specialized tribunals decisions re: their areas of expertise if they were not PU (less rule of law, more functionalism, more like CUPE)

- In her 1993 dissent in Mossop, L’H-D noted other reasons for deference (besides just the existence of a PC) - In Pezim and Southam the court held that judicial deference can apply even in situations in which the court

exercised an appeal jurisdiction and grounds for appeal include “error of law” (more functionalism)o These cases had broad appeal provisions but still the court extends the notion of deference into the

appeal context based on expertise (economic sector) moving further towards “functionalism”o The court created the “reasonableness simpliciter” SOR – which is between PU and correctness

Bibeault (1988, SCC) More conservative than CUPE, more rule of law, no deference to stat interp Pointed the court back to a more traditional “rule of law” approach (more conservative than CUPE)Set out the “pragmatic and functional approach” to determine what SOR to use (correctness v. PU)- Facts: Section 45 of the Quebec Labour Code essentially stated that when all or part of the business is sold, the

buying business has to keep the unionized employees with their rights. Issue: whether there was successorship.- Issue: what SOR should be used for this type of statutory interpretation question?- Held: This is a jurisdictional question, thus the SOR is “correctness” and the Labour Board got it wrong- Reasons (Beetz):

o The preliminary question doctrine is dead : it was too formalistic and it allowed courts to turn JR under a PC to what is basically an appeal AND did not adequately consider legislative intent when PC in place.

o The real question is: what did the legislature intend vis-à-vis the particular tribunal? Answer: use the pragmatic and functional approach (now called the SoR analysis post-Dunsmuir)

The wording of the enactment that confers jurisdiction on the tribunal The purpose of the statute that creates the tribunal and the reason for the tribunal’s

existence The area of expertise of the tribunal members The nature of the problem before the tribunal

Note: the actual pragmatic and functional approach (that we adopted for the SOR analysis post-Dunsmuir) is from Pushpanathan, but this is the predecessor

o Distinguish between 2 categories of “questions of law” [where there’s a PC] that will draw the two different SORs: questions within the core and outside the core jurisdiction of the tribunal.

PC + Core: SOR = P/U PC + Outside core (interpretations of legislative provisions that “limit” or “confer” jurisdiction):

SOR= correctnesso BUT how to distinguish? Use pragmatic and functional approach...(??) o Note: here we still only have two SoR: patent unreasonableness and correctness

National Corn Growers Association (SCC, 1990) Deference accorded to stat interp question- Facts: The Canadian Import Tribunal determined that the subsidization of American grain corn “has caused, is

causing and is likely to cause material injury” to Canadian grain corn producers, justifying the imposition of a countervailing duty on the U.S. product.  A majority of the Tribunal interpreted “material injury” to refer not only to harm resulting from actual imports but also from imports that would ensue if there were no countervailing duty.  The appellants sought JR under s. 28 of the Federal Court Act.

- Held: the SCC did not interfere with the Tribunal’s decision – SOR was PU and this was not PU- Reason:

o Echoed CUPE and noted that the adoption of a “reasonableness” test marked an important shift away from Dicey’s conviction that tribunals should be subject to the same SOR as courts.

o Court not prepared to interfere with a specialized tribunal’s interpretation of its constitutive legislation where the interpretative exercise was one that was within the tribunal’s area of expertise and where the impugned interpretation was not PU

Canada v. Mossop (1993, SCC) More rationales why court should show deference to ADMs List of other rationales (besides the existence of a PC) for showing deference to ADMs

- In dissent, L’H-D noted that deference to ADMs is usually linked to PCso BUT she also noted that PC’s are not determinative and other rationales for deference must be

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considered: Specialized nature of certain bodies, the nature of the question or interest at issue, whether the question is fact or law (deference usually given for questions of fact)

Pezim (1994, SCC) RS identified as falling b/w PU and correctness; somewhat probing examination, clearly wrong- Facts: Pezim and others were issuers of securities regarding a mining property. Securities Commission decision

under the Securities Act s. 67 requires public disclosure by an issuer of securities of any “material change.” This is a question of law – what does material change mean – interpretation of the statutory provision) So, BCCA applies correctness standard and finds that the Commission was incorrect.

- Issue: what is the proper approach to determining SOR?o Use the P&F approach from Bibeault (even though in Bibeault it was JR and there was a PC, as opposed to

the situation here where there is a statutory right of appeal) Showing more deference...o Deference as a spectrum idea o “Considerable deference” should have been accorded

RS: ask whether or not the reasons can stand up to a “somewhat probing examination” – it will breach the standard if it is “clearly wrong” (lesser than PU)

o Therefore, Correctness: appeal power + questions on which the tribunal has no greater expertise than

court OR the issue concerns a statutory provision that limits the tribunal’s jurisdiction PU: PC + matter within specialized expertise, no statutory right of appeal RS: in the middle (example in this case: there is an appeal provision but the question is in the

direct area of EXPERTISE of the panel)- Issue: what is the proper SOR in this case?

o The court in this case decided to be deferential (RS) even though there is a RIGHT OF APPEAL this demonstrates that the nature of the court’s jurisdiction (appeal v. JR) is becoming less important

o Use of the P&F approach to get there: Nature (words and purpose) of the statute this is regulatory; it is ECONOMIC regulation;

Securities Act is regulates a large body; public confidence relies on it; protects the public Expertise this is a highly specialized agency; plays an important role in policy development;

very broad powers that are highly infused w/discretion to determine what is needed in the public interest; meant to protect the public

Nature of the question at issue Note, the above two factors are important but we always have to look at the provision on a provision-by-provision basis! We are not giving the Commission blanket deference just b/c the above points would point to that. Does this particular question call on the particular expertise noted above? Here, the court says yes, this particular provision is about releasing particular info/timing (even though it’s a question of law – will have precedential value for future cases re: what material change means)

o Quote from Iacobucci: even where there is no PC and where there is a statutory right of appeal, the concept of specialization of duties requires that deference be shown to decisions of specialized tribunals on matters which fall squarely within the tribunal’s expertise

Southam (SCC, 1997) Named the third SOR from Pezim “reasonableness simpliciter”, distinguishes PU Focus on expertise again (like Pezim, in the economic sector) Explain how to distinguish “pure law” from “mixed law and fact” - Facts: Southam buys up a lot of newspapers. The issue for the Tribunal is whether this is a “merger that is likely

to prevent or lessen competition substantially”. There are both judges and lay members on the Tribunal. Only judges decide the questions of law. All members decide together if it’s a question of mixed law and fact.

- Held: this was a question of “mixed law and fact”; use the new SOR from Pezim (RS); the Tribunal’s decision was not unreasonable

- Reasons:o Even though there is an appeal provision, P&F should be used to decide if the court should exercise

deference (Pezim)i. Wording of the statute:

Appeal provision (broadly worded) – low deference

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Note: there is no PC in this case, which would push deference up PCs and appeal clauses are not determinative

ii. Purpose of the statute Regulatory, complex, broad mandate to the tribunal – deference up Economic sector (expertise needed) – deference up

iii. Expertise: Iacobucci says that this is the most IMPORTANT factor Note: the question at issue must be linked to the expertise in order to make the

claim for deference iv. Nature of the question: is it a question of law, fact, or mixed law and fact?

Mixed law and fact – deference up (expertise needed) Note: In this case, it was a question of mixed law and fact BUT there were some

judges on the original panel (deference down) However, the fact that there were more non-judicial members who could outweigh his/her decision – deference up

o This case is important for distinguishing the nature of the question – cite this case on exam: Question of law: what is the correct legal test? (points to less deference)

Did they use the right legal test? (i.e. what is the test for negligence) Did they completely fail to take into account something that the legal test said that they

had to take into account? Question of fact: what actually took place?

Who? What? Where? When? Why? Question of mixed fact and law: do the facts meet the legal test? (this would point to

deference) Note: to distinguish from pure question of law – consider if the answer is going to provide some

sort of legal precedent - when fact laden, may not be able to take out a proposition that could be applied to subsequent cases

Questions of jurisdiction are always questions of lawo Reasonableness simpliciter means:

A decision not supported by reasons that can stand up to a “somewhat probing examination” Diff to PU has to do with the immediacy or obviousness It means “clearly wrong” (??)

Stage 4: Increasing Complexity in SOR determination The Pragmatic and Functional Approach is restated in Pushpanathan and exemplified in Ryan and Dr. Q - After Southam, admin law was unpredictable. - All the approaches were unified in Pushpanathan (1998)

o Judicial focus on when a deferential SOR applied and, if deference was called for, which deferential SOR would apply: PU or RS

o Courts came to consider a number of factors that were said to indicate the “legislative intent” as to whether or not the court should adopt a deferential approach in JR

o The SCC consolidated and summarized the factors to consider in the “Pragmatic and Functional” approach to SOR = Pushpanathan factors

- The central inquiry: did the legislator intend that the courts defer to the agency with respect to the disputed issue?

- This SoR analysis was called: The Pragmatic and Functional Approach it involves considering four factors o In Pushpanathan, Bastarache says you MUST ALWAYS determine the appropriate SORo MUST always go through this multi-factor test to determine that the SOR o Note: the P&F approach is discussed and restated in this case, but it is based upon factors already

considered by courts – dating back to Bibeault- In Pushpanathan, Bastarache states that now questions of jurisdiction are to be determined backwards if

the SOR is correctness (based on the P&F approach) then necessarily it will be a question of jurisdiction (ipso facto – determined by looking backwards)

o This case emptied “jurisdiction” of meaning. “Jurisdiction” is now of no consequence in the analysis. o After going through the four factor P&F approach, if you pick a correctness standard, you can say it

is a jurisdictional question

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- Having to always determine SOR and consider all factors added complexity and time to cases – this increasing complexity gave rise to calls for simplification

o For example Justice LeBel’s “cri de Coeur” in cases such as Toronto v. CUPE Local 79 (see Stage 5)

Pushpanathan (SCC 1998) Introduction of the mandatory P&F approach to determine SOR- Facts: P had made a refugee claim in Canada, he was convicted of conspiracy to traffic in a narcotic, was thus

excluded from refugee protection under article 1F(c) of the UN Convention Relating to the Status of Refugees – this article was incorporated into the Immigration Act by a provision that said “acts contrary to the purposes and principles of the UN”. The decision to exclude P was made by the Refugee Determination Division (RDD). There was NO appeal provision from RDD to the Court in the Immigration Act. There was a weak PC in the Immigration Act - S. 67(1) gave the RDD “sole and exclusive jurisdiction” to determine all questions of law and fact, including questions of jurisdiction. JR under the Federal Courts Act could only be made to the FCTD (with leave – has a bit of a ‘deference’ effect)

- Issue: what is the SOR for the decision?- Held: Standard is “correctness” (and the RDD was incorrect – matter remitted) - Reason: Court must always determine the appropriate SOR using the P&F approach (Prof says that it’s pretty

clear the AT isn’t going to be the expert on the principles of the UN..so why can’t we go straight to determining the issue on a SOR of correctness...instead court says you always have to go through the P&F approach. Prof says that post-Dunsmuir you’d probably go right to correctness) The P&F approach is all about legislative intention on the particular question Bastarache J. organized the factors relevant to the SOR

o PC: Appeal from the FC to the FCA is possible if the TJ certifies a question of general importance less deference. Weak PC neutral

o Expertise: The board does not have relative expertise in this matter it is a matter about human rights. Less deference. The court has often held that deference should not be shown by courts to human rights tribunals. This board has even less expertise on human rights matters than human rights tribunals. Illustrates the court’s unwillingness to defer to ATs on human rights issues – they feel they have the expertise in these matters.

o Purpose of the statute, as a whole and the provision in particular: The purpose of the UN Convention is not the management of flows of people, but rather the conferral of minimum human rights' protection. The context in which the adjudicative function takes place is NOT a "polycentric" one of give-and-take between different groups, but rather the vindication of a set of relatively static human rights, and ensuring that those who fall within the prescribed categories are protected. This weighs in favour of less deference.

o Nature of the problem: It is a question of law – weighs in favour of less deference. It is also a question of “general importance” – since it is general and important, it is a question of law.

Conclusion: The appropriate SOR is correctness. A question which “goes to jurisdiction” is simply descriptive of a provision for which the proper standard of review is correctness, based upon the outcome of the P&F.

Ryan (SCC 2003) Application of P&F approach- Facts: Ryan is a lawyer disbarred by the disciplinary committee. There is an appeal provision directly to the

NBCA – only appealed on the punishment issue, arguing that disbarment was too harsh. CA sent it back to disciplinary committee with new medical evidence (probably addiction) to take this into consideration. They disbar again. Appeal to CA again – decide for indefinite suspension instead of disbarment.

- Issue: what is the appropriate SOR and should the decision to disbar be set aside?- Held: The SOR is RS. BUT the NBCA misapplied the RS standard (they re-weighed evidence which is what you

do with the correctness standard). The decision of the board to disbar was reasonable and restored by the SCC.o Factors for SOR in this case:

PC/Appeal Clause: Relevant provision is 60(1) – the sanction section has “may” in it – points to D. Broad right of appeal – “CA has any authority to make order as they feel just” – seems clear legislative intent points to less D

Expertise: judges as past members of law societies will know about ethical practice issues but the AT has superior expertise to courts on choice of sanction because: (i) Majority of AT

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members are current practicing members – more recent and immediate knowledge of practice compared to judges (ii) Composition of the board includes lay members who bring to bear a different perspective on admin d/making: courts cannot replicate this (iii) field expertise: AT has more familiarity/better relative expertise than courts in deciding upon appropriate sanction b/c it repeatedly is required to apply the ethical standards set out in the Act to specific cases of misconduct

Purpose of the Statute/Provision (Purpose of the Law Society Act and the disciplinary process) Preamble: “protecting the public interest” D But the question is the rights of an individual points away from D Law Society regulates an industry D But this is specific discipline non D

The nature of the question – found to be mixed fact/law. Very fact based – what merits what level of sanction. But still involves the application of the facts to the law

o Therefore, RS some factors pointing to deference (so not correctness) and there is a right of appeal (so not PU).

o Court also comments on what is RS: Focus on the reasons as a whole– are the reasons tenable/reasonable – do they support the

decision? It is not about what the court thinks the right answer is – it is about it is reasonable for the

lower levels to have reached this decision (by looking at their reasoning process) Court must exercise “self-discipline” – often must accept a decision as reasonable even if the

court would have reasoned or decided differently o Must ALWAYS use P & F approach to determine SOR - no shortcuts! (overruled by Dunsmuir)o There are only 3 SORs – correctness, RS, PU (overruled by Dunsmuir)o Each is a “fixed point” on the “spectrum of deference” ( RS does not vary along the spectrum, sometimes

being more deferential and sometimes less)

Stage 5: Pre-Dunsmuir Critiques of SOR Jurisprudence & BC’s Response

In 2003, LeBel J. commented on the problems with the current approach to SOR in his “Cris de Coeur” in CUPE 2003- The framework had become too complex and lengthy – too difficult for lower courts to follow- Confusion between PU and RS standards

In 2004, BC directly legislated the SOR for certain tribunals in an attempt to make things more simple through the enactment of ss. 58 and 59 of the ATA

As with all provisions of the ATA, ss.58 and 59 will establish the SOR for a particular matter ONLY if they have been expressly made applicable to the tribunal at issue through provisions of the enabling statute

o Note: in Lavender Co-operative Housing Association v. Ford (2008, BCCA), the BCCA held that the SCC got the question re: the application of the ATA (ss. 58 and 59) wrong in Rio Tinto they ONLY apply if they’ve been brought in by the enabling clause

Note: the sections were drafted against the pre-Dunsmuir CL backdrop – as a result, they preserve certain pre-Dunsmuir concepts. In particular, PU is the SOR for some tribunals in certain circumstances.

o Because of the ATA provisions, BC admin law can be expected to diverge from the national norm as established by the SCC for CL JR for post-Dunsmuir decisions

This was found to be constitutional in Manz: BCCA concluded that the PU standard lived on post-Dunsmuir and that the legislature can legislate HOW the courts carry out JR.

o These sections are constitutional - the court’s power to review has not been lost under s.58 & 59 – the courts are just told how to review certain tribunals

Toronto (City) v. CUPE, Local 79 (2003, SCC) Lebel’s “Cri de Coeur” about the state of JR- Facts: A recreation instructor for the City was charged with sexually assaulting a boy under his supervision,

convicted at trial. City then fired the instructor, the instructor grieved the dismissal, and at arbitration, the City submitted the complainant’s testimony from the trial. Arbitrator ruled that the criminal conviction was admissible as evidence, but not conclusive as to whether there had been a sexual assault. Decided that the

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instructor was dismissed w/out just cause and he got his job back.- Issue: what SOR regarding the decision of the arbitrator to re-litigate the crim conviction? - Held:

o LeBel’s concurring judgment = cri de coeur = criticized the SOR analysis and called for the courts to revisit the issue. Court could have gone directly to correctness; should not have had to go through the whole P&F approach (adopted in Dunsmuir)

o He agrees with the majority that the appropriate SOR for the question of whether a criminal conviction may be re-litigated in a grievance proceeding is correctness – it is a question of law, the arbitrator must interpret the Evidence Act and rule on the applicability of a bunch of CL doctrines dealing with re-litigation. The Courts have more expertise doing this. Post-Dunsmuir, we’d probably consider this a general question of legal importance

As a matter of law, the arbitrator was required to give full effect to the conviction – could not re-litigate it

o The second issue – the arbitrator’s decision about whether the instructor had been dismissed w/out just cause was to be reviewed on a PU standard – the question falls squarely w/in the arbitrator’s area of specialized expertise.

In this case, the decision was PU, because arbitrator failed to give full effect to the conviction

Manz (BCCA 2009) The PU standard survives where ATA applies, constitutionalMotor vehicle accident; Manz was riding his motorcycle on the way home from work, was hit by a truck while still on his employer’s property. Manz wanted to commence an action for damages, but the Workers Compensation Appeal Tribunal decided that Manz’s injury arose in the course of employment – Manz could only rely on the benefits under the Worker’s Compensation Act. He could not commence an action for damages. There was a PC.Issue: SOR for this decision?

The ATA applied in this case, and it provided that such a question must be reviewed on a PU standard. Manz argued that s.58 and s.59 of the ATA were unconstitutional - in legislating the SOR for superior

courts, the legislature has impermissibly sought to control the supervisory function of a superior court – thus violating s.96 of the Constitution.

HELD: the sections are NOT unconstitutionalo The only limitation on a legislature’s ability to legislate in respect to an admin tribunal is that

expressed in Crevier – a legislature may not exclude JR on issue touching jurisdiction, because to do so is to impinge upon the jurisdiction of courts established under s.96 of the Constitution Act 1867.

o However, s.58 and 59 of the ATA do not preclude JR of decisions made by ATs, nor does it limit or exclude the courts from exercising their superintending and reforming powers in situations in which JR reveals jurisdictional error. It, therefore, does not violate s.96 of the CA 1867.

o The constitutional guarantee of JR under s.96 does NOT require that the standard applied by a court must be determined by the courts – the constitutionally protected role of the superior courts is supervision of the AT’s conformity with jurisdiction assigned to it by enabling legislation.

This case is after Dunsmuir, and Manz argued that the effect of Dunsmuir was to amend the meaning of PU in the ATA, such that a definition closer to that of the RS should be adopted.

o HELD: NO – Dunsmuir does not change the meaning of PUo Dunsmuir abolished the PU standard, and therefore the definition of the standard must be that

immediately prior to its abolition – the definition that existed at CL before Dunsmuir.

Stage 6: Dunsmuir & Simplifying SOR- Prior to Dunsmuir, SCC jurisprudence required that courts engaging in substantive JR must, in every case, as a

preliminary matter, determine which SOR to apply by application of the P&F approach, which involved the application of a highly contextualized and multi-factor test that became widely criticized as overly complex and time-consuming. In particular, it was criticized as requiring courts to spend far too much time simply determining what the SOR should be as opposed to applying the SOR to determine whether the decision should stand or not.

- In Dunsmuir, for the majority, Bastarache wrote:o The time has arrived to re-examine the Canadian approach to JR of admin decisions and develop a

principled framework that is more coherent and workable.

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o What is needed is a test that offers guidance, is not formalistic or artificial, and permits review (remedy) where justice requires it, but not otherwise. A simpler test is needed.

Current system is too costly, slow, unpredictable – contrary to the purpose of the justice system. Currently too focussed on determining the SOR, not the substantive merits of the case

- Binnie J.’s concurring minority also commented on the difficulties o Too much focus on the “preliminary” issue of the tests and trying to figure out what the SOR should be as

opposed to focusing on the question of whether the decision should stand or noto JR should be “pruned of some of its unruly, subtle, unproductive or esoteric features”

Therefore, the SCC made a number of changes re: the SOR analysis in this case:a) Court first discusses institutional roles and constitutionalism:

- Rule of law is protected through JR because courts have the final say in jurisdictional questions (Crevier). At the same time, however, legislative supremacy is also maintained because “jurisdictional” is narrowly circumscribed and because courts always look for legislative intent in defining legislation.

- Crevier is affirmed: the legislative branch of gov cannot oust the judiciary’s power to review decisions of tribunals on questions of jurisdiction – even if there is a PC.

b) Court removes the PU standard: now there are only two standards - reasonableness and correctness- Why reduce number?

o The distinction between PU standard and the RS was too difficult and problematic - “a review of cases reveals that any actual difference between the in terms of their operation appears to be illusory”

o PU standard seemed to require parties to accept an unreasonable/irrational decision which is inconsistent with the rule of law - that decisions should not be arbitrary

o As a general response to concerns of complexity- By going back to two standards, the court does NOT intend to go back to the pre-Southam binary approach.

o It is NOT a formalist approach where a decision is either on one end of the extreme or the other. o Removing the PU standard (the most deferential standard), it is NOT “paving the way for a more

intrusive review by the courts”

Dunsmuir Minority Judgments: 1) Concurring Opinion (Binnie)- Prefers a broader reappraisal, more simplicity, clearer rules an approach that would have even more

shortcuts- Warns that the notion of “general question of law of central importance to legal system and outside the DM’s

specialized area of expertise” will lead to problems – too complex- Warns that the R standard will have to be “a big tent” – there will need to be varying levels of deference

accommodated within this standard, depending on the nature of the ADM being reviewed, the breadth of the statutory mandate of the ADM, etc [“who is deciding what”]

o Things that used to fall under PU will now fall under R – but he says this will necessarily be a different level of deference from others – flexibility is required

- Warns that the majority decision does NOT give PCs enough weight – PCs should be more than just a “factor” – they should significantly affect the degree of deference accorded

- A disagreement between the court and the administrator does not necessarily mean that the administrator is wrong.

- OVERALL: Binnie’s approach would accord more deference to ADMs where there is a PC or no appeal provision ... he would like to see a presumption in favour of deference (reasonableness) for all questions except for errors of law:

o on questions of jurisdiction (correctness)o on questions of “general law” (Constitution, common law, civil law) (correctness)o on questions of PF (correctness)

- Correctness applies to all of the above- Thus reasonableness SOR would apply to all questions of law re: the home statute and closely related statutes2. Concurring Minority Opinion - Deschamps (w/ Charron & Rothstein)- Want the SOR determination to focus solely on nature of the question and to be more straightforward as

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follows:o Deference would apply to:

questions of fact questions of mixed fact and law (applying a legal principle to the facts of the case, i.e. whether a

particular penalty is justified on the facts) exercises of discretion (unless the d/maker has exceeded its mandate) question of law (if there is a PC and the question is within the body’s expertise)

o Correctness would apply to: question of law where body has no expertise (questions that are outside the enabling Act) questions of law of general application (Constitution, common law, civil law) All question of law where there is an appeal (would “undo” Pezim, Southam, etc.)

Dunsmuir (SCC 2008) Modern approach to substantive JR- Facts: Dunsmuir was employed by the DoJ in NB, was reprimanded on three separate occasions during the

course of his employment. He was terminated but the gov made no allegation of dismissal for cause; commenced a grievance under the Public Service Labour Relations Act. The grievance was denied, went to adjudication. The adjudicator held that a grieving employee is entitled to adjudication and that the applicant in this case was entitled to PF in the employer’s decision to terminate the employment – the termination was declared void, DoJ ordered to reinstate Dunsmuir. Basically he was terminated as a common law employee (because you can dismiss at CL with notice or pay in lieu) There was a provision in the legislation was that Dunsmuir’s employment was subject to regular CL rules. Issue what whether the arbitrator could determine that despite what the gov said, it was a termination for cause, in which case the arbitrator could provide a penalty other than termination (i.e. reinstate Dunsmuir) Oddly he found it wasn’t a termination for cause, but then found that because he was an office holder, he should have gotten PF.

- Issue: what is the SOR of the arbitrator’s decision that he could look behind what the gov said and reinstate?- Held:

o Court revisits the SOR analysis, gets rid of the PU standard, outlines a new approach to SOR analysiso Applying this new approach:

There is a full PC – this favours reasonableness standard Nature of the regime: expertise favours reasonableness standard (it is a labour board, usually

seen by courts to have high expertise, and the adjudicator was interpreting the home statute) It is a question of law, but it’s about the enabling act and not of central importance to the legal

system and not outside the specialized expertise of the adjudicator – favours a reasonableness standard.

so the appropriate SOR is reasonablenesso The decision was unreasonable.

The adjudicator ignored the contractual terms of employment – under the K, the employer is entitled to discharge an employee for cause, with notice, or pay instead of notice. Where the employer chooses to exercise the right to discharge with notice or pay instead of notice (as is the case here), the employer is not required to assert cause for discharge.

Adjudicator adopted a reasoning process that was inconsistent with the employment K – thus the decision does not fall w/in the range of reasonable outcomes wrt the facts and the law.

Note: Arbitrator was interpreting home statute, even so, decision found to be unreasonable***This is not very deferential – unclear how this differs from the outcome if a “correctness” standard applied***

Stage 7: Post-Dunsmuir Developments

- Dunsmuir applies to JR under the FCA (Khosa)o Section 18.1 Federal Courts Act = GROUNDS of review (not SOR)o Note: Rothstein (concurring opinion Khosa) believed that these were the SORs

- Dunsmuir applies to statutory appeals (Khosa, Nolan, Alliant)o With or without a PC, a measure of deference to ATs is necessary whenever the legislature sends

decisions to ATs rather than the courts (Khosa)o Note: Rothstein (concurring opinion in Khosa) believed no PC = SOR would always be correctness

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o Note: the fact that there is a statutory appeal will be relevant in the Dunsmuir test (Step 2)- Dunsmuir applies, but is mitigated by, the ATA (Manz) – see above (Stage 5)

Smith v. Alliance Pipeline (Feb ‘11)

Kerry v. Nolan (Aug ‘09)

Bell Canada v. CRTC (Sept ‘09)

Type of ADM Arbitration Committee Financial Services Tribunal

CRTC

Issue Whether ADMs had ability to award costs outside the costs incurred during the arbitration committee?

Whether the Tribunal had authority to order costs from the employer’s fund under their Act?

Whether CRTC had jurisdiction to order rebates?

Has the SOR jurisprudence already determined this category of question?

Tribunal is interpreting its home statute SOR is reasonableness

Court did this first step but the jurisprudence was not determinative.

Court skipped this first step

Presence or absence of a PC

Weak PC? No PC or statutory appeal No PC

Statutory Purposes Parliament gave the arbitration committee a wide degree of discretion

Complex purposes, regulatory. Legislation is designed to protect individual interest and adjudicate individual cases

Complex rate-setting. Used the word “polycentric”

Nature of Problem Question of mixed fact and law – the committee must interpret the costs provision and apply it to the facts that it has found (note: Nolan would argue that you can extract from this a pure legal question)

No attempt to characterize at the first step of Dunsmuir but at the second step they said question of law

The nexus of the problem relates to expertise

Expertise High expertise High level of expertise The CRTC is uniquely qualified

SOR selected Reasonableness Reasonableness Reasonableness

Was it met? Yes ? Yes. This decision is a lot less formalistic but still refers to all four categories.

Northrop Khosa

Type of ADM Canadian International Trade Tribunal Immigration Appeal DivisionIssue Whether CITT had ability to hear complaints

under the AIT brought only by Canadian suppliers?

Has the SOR jurisprudence already determined this category of question?

Yes – the jurisprudence answers the SOR question. This is a jurisdictional question and jurisdictional questions attract a correctness standard.

Yes – discretionary decision = reasonableness since there is no right/wrong answer

Presence or absence of a PC

n/a No (or at most a weak PC) – “exclusive jurisdiction clause”

Statutory Purposes n/a Appeal jurisdiction, nothing else noted by court

Nature of Problem n/a Fact driven, policy analysis - “discretionary privilege”

Expertise n/a High expertise, also the board heard Khosa’s

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Northrop Khosa

testimony in this case

SOR selected Correctness Reasonableness

Was it met? Yes Yes – do not re-weigh the factors, just ask whether the decision is in the range of acceptable outcomes

Khosa (SCC 2009) Dunsmuir test applies to JR under FCA- Facts: Khosa was a citizen of India, immigrated to Canada, found guilty of crim neg causing death, received a

conditional sentence of 2 yrs less a day – removal order issued for him to return to India under the Immigration and Refugee Protection Act. He appealed the order but the Immigration Appeal Board denied him special relief on H&C (split decision). Appeal to the FC – which applied a PU standard and dismissed the appeal. Appealed to the FCA – applied RS standard and set aside the decision. At SCC, Minister argues that s.18.1 of the Federal Courts Act establishes a legislated SOR.

o Note: s. 67(1) says “to allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of, …(c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.”

- Issue: Does s.18.1 of the Federal Courts Act codify a SOR?- Held: Split court

o Binnie + 4 upheld the IAB decision – applied the “reasonableness” SOR and decision was reasonableo Dissent (Fish): agreed with the majority re: SOR, but thought the decision was unreasonableo Concurring opinion (Rothstein +1): agree with Binnie, but disagreed re: the relevance of Dunsmuir

to the Federal Courts Act- Reasons (Binnie):

o Binnie noted that the Court would “not roll back the Dunsmuir clock” This is in response to Rothstein’s opinion (below) which states that no deference should be

given unless there is a PC With or without a PC, there should be deference because:

There may be a multitude of answers to statutory interpretation, and the court should not intervene with the understanding of a specialized expert

There are complexities in the admin realm that experts are best able to deal witho Doesn’t want to get rid of a decade of JR development; deference and relative expertise are keyo Parliament may constitutionally legislate a certain SOR (i.e. the BC ATA)o S.18.1 codifies GROUNDS, not SORs – which permit (not require) the court to grant relief.

Although the gov can legislate SORs, the standard must be CLEARLY legislated If the legislature had wanted to change the CL with s.18.1, they would have been very clear. Binnie points to ss.58 and 59 of the ATA as examples of the legislature setting out a SOR –

the wording is much more clear than s. 18.1 S.18.1.4 says “may” – thus allowing the court to breath the CL from Dunsmuir into this

statutory scheme S.18.1.4 has to be sufficiently elastic to deal with all ATs it applies to – it could not have been

Parliament’s intention to set a single rigid standard or de-contextualized reviewo Thus, must apply the Dunsmuir approach to determine the appropriate SOR.

Exhaustive review not required Existing jurisprudence points to the adoption of a reasonableness standard this is a

highly discretionary decision, with no right/wrong answer The precedent regarding s. 67 clearly shows that the section requires deference But Binnie went on to apply the SOR test, even though he seemed to believe

deference was necessary! Factors also point to a reasonableness standard

PC: there is no PC, BUT there is an “exclusive jurisdiction clause” and this must have 53

some preclusive effect Purpose: the IAD determines a wide range of appeals

o less deference, b/c it doesn’t have functions over a broad sector Nature of the question: fact-dependent and policy-driven assessment – Binnie calls

the H&C appeal decision a “discretionary privilege” Expertise: The IAD members have considerable expertise in determining appeals

under the IRPA, and members of the board heard his testimony o About rehabilitation/credibility here so this is an important advantage

o SO: SOR = reasonableness. Is the decision unreasonable? “Reasonableness takes it color from context” (here: discretionary-type decision means that

there is more flexibility/deference accorded to the decision) Level of deference provided under the SOR of reasonableness will vary according to context This type of power, in the case law, had never been suggested to be a correctness SOR – it

was always between RS and PU. Look at context; wording of the statute is important – here it expands what reasonableness

means (this is a discretionary power – whether the IAB was satisfied that there are sufficient H&C grounds)

Reviewing courts cannot substitute their own reasoning or reweigh the evidence. Must determine whether the outcome falls within a range of possible, acceptable outcomes.

Of course in Baker the courts did appear to re-weigh, thus this could be seen as a move away from that.

Language from Dunsmuir (justification, transparency, and intelligibility) affirmed. Give sufficient attention to the original decision and reasons (quality of reasons) as well as

whether the outcome is reasonable In this case, the decision was reasonable. (if not all of the Rebic factors had been taken into

account, that would likely indicate that the decision was unreasonable) THUS IF THE STANDARD IS REASONABLENESS AND THE AT DOESN’T CONSIDER ALL THE

REQUIRED FACTORS – THAT POINTS STRONGLY TO AN UNREASONABLE DECISION- Concurring Opinion: Rothstein J.

o In the absence of a PC the courts should treat ADM as a lower court (i.e. treat it just like an appeal) and apply a standard of correctness. (i.e. the PC makes all the difference)

o Where Parliament intended a deferential SOR, it used clear and unambiguous language – thus, where Parliament did not provide for a deferential standard, its intent was that no deference be shown.

Rothstein believes s. 18(1)(4) of the Federal Court Act sets out SOR, NOT just grounds He claims these prescriptions from Parliament oust the CL re: JR at the FC and the FCA Note: Rothstein made some sort of exception for when PCs exist, but that’s inconsistent with his

argument that the Act should be followed re: SORso This is a question of fact (thus under s.18(d) – it wasn’t made in a perverse or capricious manner so no

problem)o Note: Rothstein said the Court started getting off track with Pezim and got even farther off track with

Pushpanathano SO: appropriate SOR in this case is correctness.

- Fish (dissent) concerned with the weighting of the IAB on the particular type of offense (street racing) and the prospect of rehabilitation (the IAB didn’t explain why they reached a different decision regarding the prospect of rehabilitation than the criminal trial).

o Binnie responds that Khosa testified in front of the IAB, not at the criminal trial. They were entitled to make their own decision regarding rehabilitation. Plus, the decision only has to be reasonable!

Nolan v. Kerry (SCC, 2009) Dunsmuir applied in statutory appeal situation SCC applied Dunsmuir in a statutory appeal situation (same as Khosa) In neither this case or Smith, the SCC doesn’t talk about the fact that these are statutory appeals (!)- Facts: In 1954, Kerry created a defined benefit plan (DBP) for its employees. A trust fund was established for

the DBP. In 2000, the fund was in a surplus position. Also in 2000, Kerry decided to create a defined contribution plan (DCP) for new employees, and for any existing employees who elected to switch from the

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DBP to the DCP. To effect these changes, Kerry changed the terms of the existing DB pension plan by dividing the original trust fund into a DB component and a DC component. Kerry then took a “contribution holiday” from its obligations to pay into the DC component, by transferring surpluses from the DB component to the DC component.

- A group of retired employees who received DB pensions, asked the Superintendent of Financial Institutions (the first step under the Ont Legislation) whether Kerry’s actions were prohibited. In addition, they challenged Kerry’s long-standing practice of paying various pension plan admin expenses from the pension fund.

o The Superintendent determined that the “contribution holiday” was permissible but that Kerry was not allowed to pay the admin expenses from the fund, and would have to reimburse them.

- When the Superintendent makes a proposed ruling, the parties can go to the Financial Services Tribunal to review the decision of the Superintendent (like an internal appeal) Kerry took the matter to the Tribunal which held that Kerry was entitled to pay expenses from the pension fund and that, although the pension plan did not permit “contribution holidays” from the DC component, this could be fixed by retroactive amendments to the plan. The Tribunal also ruled that it did not have any jurisdiction to award costs out of the fund to pay for legal costs of the proceedings.

o Note: the employees can appeal to the Courts under the Act- Ont Divisional Court : Overrules the decision of the tribunal, applying correctness SOR

o Holds the contribution holiday is not okayo The payment of admin costs from the fund are also not okayo Jurisdiction re: costs: the tribunal was correct that they did not have jurisdiction

- ONCA : Restores the Tribunal’s decisiono Both the contribution holiday and payment of admin costs from the fund are okay (reasonableness

standard applies, both were reasonable)o Costs question – correctness standard, and the tribunal was right that they didn’t have jurisdiction

- SCC : (note: up to this point everything was prior to the release of Dunsmuir)o Dismisses the appeal; upholds the ONCA’s decisiono What should the SOR be for the three issues in this case?

Doesn’t even mention the fact that this is a statutory appeal Reasonableness! They use the Dunsmuir approach to get to this decision Step 1: look at whether or not the case law has already established in a satisfactory way, what

the SOR should be They looked at precedent narrowly In the past, the SCC applied a correctness SOR to this same tribunal when it was

interpreting the Pensions Benefit Act This can’t be precedent because in those cases the Tribunal was NOT interpreting a

section of the Act, rather they were interpreting pension agreements and the boundaries of the plan

Therefore, this first step isn’t determinative Note: there was NO attempt to “categorize” this is this a question of law? Fact? They

didn’t look at that. They just said there was no specific precedent. Step 2: SOR analysis. Use four factors

Cursory review of the factors in line with Dunsmuir, trying to simplify SOR analysis. Factor 1: is there a PC? No. Factor 2: purpose of the tribunal

o This tribunal is regulating pension law. This is financial regulation, very complex, points to reasonableness SOR.

o But the tribunal just adjudicates issues that are brought to it – points to correctness end of the spectrum

o The legislation is there to protect individual interests and adjudicate individual cases – this points to less deference

Factor 3: the nature of the question at issueo The questions at issue in this appeal are largely questions of law, in that they

involve the interpretation of pension plans and related texts…[see next factor] Factor 4: the expertise of the tribunal

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o …however, the Tribunal does have expertise in the interpretation of such texts, being both close to the industry and more familiar with the ADM’s scheme of pension law.

Reasonableness is therefore the SOR on the two issues of contribution holidays and admin costso What about the jurisdiction of the tribunal to deal with issues of costs?

Is this a true jurisdictional question and thus the SOR should be correctness? NO The SOR is still reasonableness

Does a very brief SOR analysis Whenever the tribunal is interpreting its own statute, there should be more deference Take a narrow view of what is a TQJ – don’t go back to pre-CUPE

True jurisdictional questions will be GENERAL – do you have jurisdiction over these parties? This subject matter? Once it’s more focused in, it will NOT be a true jurisdictional question

True jurisdictional questions will be exceedingly rare!

Northrop (SCC 2009) Only case where a true question of jurisdiction is found The ONE SCC case where they find a true jurisdictional question (TJQ) and thus the SOR is ALWAYS correctness. This illustrates when you might be successful arguing a TJQ. TJQ = Jurisdiction to hear a dispute.- Facts: Public Works Department (PWD) is tendering for work. An American company bids (Northrop). N wasn’t

successful so it wants to complain. It complains to the Canadian Tribunal CITT that has different mandates under different statutes. Allegation: the PWD has breached the Agreement on International Trade (AIT) – this is a federal-provincial territorial agreement in Canada.

- Issue: Whether a potential supplier for a gov procurement that is not a Canadian supplier has standing before the CITT to complain about an alleged unfair bidding process based on the AIT. Does the US supplier have standing to apply for something that doesn’t really apply to it? Can the CITT hear this party?

- Held: A correctness SOR applies to a decision of the tribunal on whether something falls within its jurisdiction. o This is found to be a question of jurisdiction, and the SOR is correctness.o Why? Because it’s a broad/general issue. A first level kind of question. o As the FCA and the parties noted, the case law has established that a CITT decision on whether

something falls within its jurisdiction will be reviewed on a correctness standard In this case, it is not necessary to go beyond the initial step in the Dunsmuir analysis.

o THEREFORE, if the question is “do you have jurisdiction to hear this case as a general matter? It can be characterized as a TJQ and the SOR has to be correctness

Smith v. Alliance Pipeline (SCC 2011) Dunsmuir applied to appeal, costs issue This case is about a costs issue (like Nolan v. Kerry); NOT a true jurisdictional issue (this is an appeal case but doesn’t really address that)- Facts: Alliance is supposed to do work on a pipeline on Smith’s land – they have an easement. Alliance doesn’t

do the work they were supposed to. Smith, the next spring, finds the mess that Alliance left and, since Alliance wasn’t there, he did the work himself and he bills Alliance for it. Alliance agrees to pay only part of the bill.

o Smith seeks arbitration to deal with the dispute. A first arbitration committee is struck and they hear the matter. But before the decision is

rendered, Alliance decides to go perform some maintenance work on Smith’s land. They ask Smith if they can get the access to the pipeline. Smith says no.

o Alliance goes to the Court of Queen’s Bench. Things proceed, but then Alliance abandons the lawsuit. Smith only gets an order of costs for part of his legal fees from this suit. He has a bill of $16,000 for this litigation that didn’t even go anywhere.

o Note: the first arbitration committee still hasn’t given a decision upon Alliance’s request. But they can’t proceed because one of the members of the committee moves to work for the court.

o A second arbitration committee is struck: The committee gives Smith 85% of the amount he was claiming, so he is entitled to get costs

(including legal costs) reasonably incurred in relation to the matter In doing this, the arbitration gives Smith costs associated with the QB matter (the suit that was

abandoned)56

This triggers the legal case. Alliance believes the only costs the committee should take into account are those associated

with their own proceedings, not costs associated with some extraneous lawsuit. - Issue: is this a true jurisdictional question? - Held: this is NOT a true jurisdictional question

o SCC applies Dunsmuir – the SOR that should apply is reasonablenesso This is a good restatement about Dunsmuir

The extensive and formulaic inquiries of the past are history; they have been replaced Para 25: reviewing judges can usually begin their judgments by determining whether the issue

falls within one of the non-exhaustive categories identified in Dunsmuir. o Hopefully this will work and then you can bolster your categorization via the second step of Dunsmuiro In this case, the standard is reasonableness because the tribunal is interpreting its home statute

Any doubt about that can be resolved by a few considerations:o It’s a home statute interpretation involving cost – issues about costs are fact sensitive

and are usually discretionary this bolsters the idea that the SOR should be reasonableness

o If you consider the wording of the provision, it shows that parliament gave the arbitration committees a wide degree of discretion

o This looks like mixed fact and law – the committee must interpret the costs provision and apply it to the facts that is has found (Alliance would argue that you can extract a legal question)

o The committee has the sole authority about costs to determine whether or not the cost order is limited to the committee costs only or can extend more broadly; therefore, it is not a true jurisdictional question, nor is it one of the other types of questions that would attract “correctness” as the SOR

Mowat (2011) Costs case, SOR = reasonableness, BUT court appears to apply the correctness standardIssue: Did the CHRT make an error wrt to an order for legal costs (statute said they could make an order for “expenses incurred in the resolution of the complaint”) – did that include legal costs?Held: SOR = Unreasonableness and this was unreasonable

Even in the second part of Dunsmuir (the SOR factors) – really the focus of these factors is on the nature of the particular question at issue! (i.e. expertise wrt particular question)

Step 1: existing jurisprudence not really helpful.o This is human rights – case law often points to a correctness standard – courts feel that they have

an expertise in human rights. (Note Charter provisions, i.e. s.15, cross-fertilization – courts used HR principles in their early s.15 interp) So up to this case, the SOR probably would have been correctness.

o But there must be distinctions regarding WHAT the HR tribunal is deciding. Is this about the broad principles of human rights (i.e. BFOR defense) which would probably be addressed on an SOR = correctness (because beyond the expertise of the tribunal) or something else (like here - it’s about costs! The scope of the remedial power. Whether legal costs fall within the provision.)

This is also not a true question of jurisdiction. This is a question of law, but not one of the ones that would be a correctness standard. SOR factors: this is not super complex policy stuff.

Therefore the SOR is reasonableness. (and the decision is unreasonable) Thus even human rights will likely fall into the reasonableness category. TQJ is such a narrow category!! How can this decision really be unreasonable? It looks like they applied a correctness approach. They

looked at whether Parliament intended to include legal costs, basically they applied stat interp/driedger/leg history....this seems more like correctness!

Nor-Man (currently at SCC) Question of law of central importance to the legal system outside special expertiseHere it had to do with the law of promissory estoppel. Labour arbitration, strong PC (courts tend to be deferential). Arbitrator makes a decision on the basis of promissory estoppel. Union knew something contrary to the collective agreement was going on but had never objected. So arbitrator said they could not now argue it because of PE. Union wants the arbitrator’s decision to be reviewed on correctness and that she made an error of law.

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PE question was a question of law of central importance to the legal system as a whole and outside the special expertise of the arbitrator, therefore under Dunsmuir correctness is the right approach. These were specific questions about how intent fits in with PE, what it takes to establish PE. The ingredient of PE is a pure question of law. So a) this is a question of law b) this question of law is the type that is a central importance to the legal system/outside expertise. THUS = SOR = CORRECTNESS.

SOR & DISCRETIONARY DECISIONS

Where there is discretion, no objective standard is being imposed: discretion implies subjectivity and the exercise of judgment on the part of the decision-maker.

- Discretionary decisions are those where the law does not dictate a specific outcome or where the DM is given a choice of options within a statutorily imposed set of boundaries (Baker)

Use the general approach to SOR for discretionary decisions!

Indicators of Statutory Discretion- Where the statute says the Minister MAY [take a certain kind of action/do something] if he is of the

opinion that ….[a certain circumstance or set of facts exists]- Or, where the statute uses words or phrases such as:

o if the Minister is satisfied that it would be in the public interest to do so he may …. [take a particular action]

o the Minister may, in his or her discretion, terminate a license that has been granted under this Acto the municipal council may make such bylaws as it may deem necessary in the public interest to

control noise in the municipality…

Judicial Control of DiscretionIssue: how can courts police/control exercises of discretion to foster the rule of law, without usurping the decision-making function of the ADM? Legislature intended the ADM to exercise the discretion, not the courts…

discretion is necessary because (among other things) the legislature cannot anticipate all future situations in which a statute is to operate cannot take the time needed to be “exhaustive” in setting all the “rules” does not have all the information or the expertise needed to frame all “rules” needs to leave flexibility and “room to manoeuvre” in implementation of programs (to address

changing circumstances) discretion is problematic because (among other things)

it is seen as potentially (or even inherently) arbitrary and a threat to the ROL it is seen as difficult to control judicially – difficult to constrain as per the ROL it presents a challenge to the traditional view of the separation of powers because it seems to

involve “legislative action” by the executive branch and b/c it threatens to pull courts into the realm of policy and politics

Evolution of the law:(1) Historically:

Discretion was considered outside of the legal sphere – discretionary decisions (ADM decisions) were seen as political decisions and thus not subject to the rule of law = BINARY

Quasi-judicial or judicial questions (ie: non-discretionary decisions) were subject to the rule of lawo Quasi-judicial decisions were those that applied rules, led evidence, and were decided by precedent

SO: discretion was considered to be “untrammelled” and “unfettered”(2) Abuse of Discretion Doctrine (Roncarelli)

Eventually, this binary was rejected (Rand J. in Roncarelli)o Even discretionary decisions are subject to the rule of law there are no separate legal and

political spheres. Every decision must be made according to the parameters of the statute.o There is no absolute discretion discretionary decisions can be reviewed.

A new test for the “abuse of discretion” emerged for reviewing discretion, based on the words of Rand J. in Roncarelli there were distinct heads or grounds of review.

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o This theory was jurisdictional; the d/m had to stay within the parameters set by the statute. o Prof says that Roncarelli can be seen as a clear judicial vindication of the rule of law.

There were two general grounds when proper exercise of discretionary power was met:o 1) Genuine exercise concerns: courts must ensure that the discretion has been exercised by those

the legislature intended and not by others. Rule against sub-delegation : the discretion must be exercised only by those to whom the

legislature gave the power and must not be delegated to others unless the statute expressly or impliedly allows this

Rule against dictation/abdication : discretion must be exercised only by the statutorily designated d/m and must not be dictated by someone not authorized to decide (cannot be told to make a decision a certain way by another party)

In Roncarelli, the commission acted under the dictation of Duplessis whereas the legislation stated that the discretion resided only with the commission.

Rule against fettering : the d/m must exercise the discretion in each individual case and must not fetter his/her discretion by blindly following a policy [guidelines = “soft law”] (note: it is ok to have polices – they actually help make d/m more less arbitrary by structuring, confining and shaping exercises of discretion – but must be open to departing from policies in appropriate cases)

o 2) Legality of the exercise of discretion: courts must ensure that the exercise of discretion (the decision reached) was authorized by the statute that created the discretion (whether it exercised lawfully – actually authorized by the statute). To determine that the exercise of discretion is within the scope, court look at:

Proper purpose : the discretionary power was exercised for the proper purse Irrelevant considerations : the decision was not made on the basis of irrelevant factors Relevant considerations : all relevant considerations were taken into account

Note: the determination of proper/improper and relevant/irrelevant considerations turns on statutory interpretation (Maple Lodge)

Prof says issue: courts could interpret the statute to determine what, in their view, were proper purposes or improper purposes and what were relevant or irrelevant considerations SO correctness SOR applied to those issues of statutory interpretation which could potentially allow for relatively intrusive review

Bad faith : the discretion was not exercised in bad faith or in an arbitrary or capricious manner

In Roncarelli: the court found improper purpose, irrelevant considerations and bad faith – the commission focused on punishing Roncarelli as an example to others

OVERVIEW/APPLICATION:o If the d/m had acted for proper purposes, had not considered irrelevant factors, and had taken into

account all the factors that the statute required be taken into account, the courts would not review or interfere with the merits of the decision that had been reached by the d/m. (Maple Lodge Farm)

The court would NOT re-weigh the relevant factors and substitute its own decision merely on the ground that it would have decided differently (Maple Lodge Farm)

o In practice, however, the extent of intervention in discretionary decisions varied greatly depending on the nature of the discretion and the nature of the d/m

Courts tended to exercise great restraint in reviewing broadly worded discretionary powers on ministers/cabinet that bestowed power to act on the basis of public interest.

Some ministerial/cabinet decisions considered virtually unreviewable: Thorne’s Hardware: cabinet order Black v. Chretien: crown prerogative power

Maple Lodge Farms (SCC, 1982) Example of the court being quite INTERVENTIONIST with the old system- This case set out the pre-Baker approach to JR of discretion: "It is … a clearly-established rule that the courts

should NOT interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility.

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Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.” (this was essentially the SOR)

- Determination of proper/improper purposes and relevant/irrelevant considerations turns on statutory interpretation

o What are the purposes of the statute, express or implied? o What are irrelevant considerations, express or implied? o What factors are required to be taken into account, expressly or impliedly?

- [See above for how this case was used in later decisions]

Thorne’s Hardware Ltd. v. The Queen (1983, SCC) Example of the Court’s HANDS-OFF approach with old system- Facts: Cabinet made an order re: the size of the harbour. Some argued that Cabinet only did this to get more

revenues from the businesses located in the habour area.- Held: the Court took a hands-off approach and did not intervene with Cabinet’s discretionary decision

(3) Modern Approach (Baker) L’Heureux Dube rejected the binary/dichotomy of discretionary and non-discretionary decisions (Baker)

o It is a difficult distinction to make – all decisions involve some discretiono Discretionary decisions now reviewed under the P&F approach (same as all other SOR)

If a decision is highly discretionary, this will be factored in the “statutory purposes” and “nature of the problem” factors of the PFA.

o L’H-D stressed that this new approach would not reduce the level of deference accorded to highly discretionary decisions

BUT in the Baker case itself, L’H-D appeared to decide the d/m erred in not giving enough weight to a particular factor that had to be taken into account (therefore, L-HD appeared to re-weigh the relevant factors)

In Suresh the SCC stressed that a court should not re-weigh the relevant factors or interfere on the basis that it would have come to a different decision

o The court MAY intervene if the decision is not supported by the evidence or fails to consider the appropriate factors

o Court said that a decision would be PU where: Made arbitrarily or in bad faith Cannot be supported on the evidence Minister failed to consider the appropriate factors (note: the court will decide what the

relevant/irrelevant factors and determine if the d/m reviewed those factors appropriately – draws on pre-Baker case law)

Relevant criteria informed by the scheme and object of the Act – court must ask: what is the perspective within which the statute is intended to operate? What are the policy and objects of the Act? And must determine this by construing the Act as a whole (Retired Judges Case)

If failure to take into account a relevant factor is key to the legislative scheme, failure to consider it will make the decision PU (Retired Judges Case)

o Ex in RJC – they court interpreted the legislation to indicate that the legislature intended the Minister to have regard to relevant labour relations expertise and general acceptability to the labour relations community – and that the minister was not alive to these considerations = PU

o Court in Suresh explained that Baker did NOT constitute a re-weighing of factors by the court, rather the statute in Baker was found to implicitly require that the interests of the children be viewed as a primary factor and because the d/m had not treated those interests as a primary factor, the decision was unreasonable.

Court also labelled Baker a “special situation” thereby limiting the impact of the case on substantive review of ministerial discretionary powers.

Summary: SOR in discretionary decisions:60

o NOW (post-Dunsmuir) only 2 SOR: Correctness & Reasonableness. Because there is a presumption in favour of deference for JR of discretionary decision – the

standard will always be Reasonableness use this during “step 1” of the Dunsmuir analysiso This plays into Binnie’s “Big Tent” reasonableness SOR – given that courts have made it clear there

is a need for high level of deference in the case of broadly worded ministerial discretions in which judgments about policy, about what is required in the public interest…

Prof says: it is likely that JR of ministerial discretions under a reasonableness SOR will not be substantially different from the PU SOR that was applied in Suresh and Retired Judges

Baker v. Minister of Immigration- SOR found to be Reasonableness Simpliciter. Decision found to be unreasonable primarily because the IO was

not “alert, alive and sensitive to the best interests of the children- Reasons:

o L’Heureux-Dube J. says the IO was “completely dismissive of the interests of the children” and this made the decision unreasonable because the interests of the children was intended to be an important factor in the exercise of the discretion given a review of: (it did not give sufficient weight to this factor! She appeared to reweigh the factors...which the court always said that they shouldn’t do. Normally you just make sure that all the factors were considered. Impact: Post-Baker – is the court going to reweigh factors in discretionary d-m?)

the purposes of the Act (includes reunification of families) the values expressed in the Convention on the Rights of the Child and other international

documents. Note: some criticized her for this, including a minority concurring opinion, because the statute not actually brought into Canadian law yet.

the ministerial guidelines (which indicated the factors that the Minister considered to be relevant in making an H and C decision)

o Application of P&F test (as it was then called): The presence or absence of a PC and, in some cases, the wording of that clause

There is no PC in the Immigration Act The expertise of the decision-maker

Note: this was NOT the minister directly deciding – lawfully delegated to lower levels The purpose of the provision in particular, and of the Act as a whole

The Minister had considerable choice in this case to determine H & C grounds; this factor also militates in favour of greater deference

The purpose of the provision is to exempt applicants – this favours deference; however, this decision relates directly to the rights and interests of an individual, rather than balancing the interests of various constituencies or mediating between them

The nature of the problem in question Given the high discretionary and fact-based nature of this decision, this factor also

favours deference o Therefore, L’H-D determined the reasonableness simpliciter SOR applied and found the decision was

unreasonable and should be set aside because “the failure to give serious weight and consideration to the interests of the children constitutes an unreasonable exercise of the discretion conferred by the section, notwithstanding the important deference that should be given to the decision of the immigration officer”

Note: she appeared to go beyond the traditional approach in that the Court appeared to re-weigh the factors, deciding that the IO had wrongly exercised the discretion because he/she had not given sufficient weight to a required factor that had to be taken into account [something the court said that they would never do in reviewing decisions]

o The decision was “unreasonable” because of the approach taken to the child’s interests; the officer was completely dismissive of the interests of B’s children

To determine if the approach taken by the officer was within the boundaries set out in the statute requires a contextual approach

Objectives of the Act S. 3(c) says the objective is to “facilitate the reunion in Canada of Canadian citizens and

permanent residents with their close relatives from abroad”

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This provision is consistent with a large and liberal interpretation of the values underlying the legislation and its purpose to presume that Parliament also placed a high value on keeping citizens and permanent residents together with their closer relatives

International Lawo The ratification by Canada of the Convention on the Rights of the Child is another

indicator of the importance of the interests of the children o Even though the Convention has not been implemented by Parliament, the

values reflected in int’l human rights law may help inform the contextual approach to statutory interpretation and JR

o Ministerial Guidelines They emphasis that the decision-maker should be alert to possible

humanitarian grounds, should consider the hardship that a negative decision would impose, and should consider as an important factor the connection between family members

Therefore, because the reasons for the decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of B’s children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation, and must, therefore, be overturned

Also, L’HD noted the reasons for decision failed to give sufficient weight or consideration to the hardship that a return to Jamaica might cause B

- Iacobucci J (and Cory J.’s) Concurring Judgment: o They did NOT agree with the approach by the majority, in which reference was made to the underlying

values of an unimplemented international treaty, because such an approach is not in accordance with the Court’s jurisprudence concerning the status of international law within the domestic legal system

Suresh - says Baker wasn’t reweighing factors under the reasonableness approach- Facts: S has Convention Refugee status in Canada – he is of Tamil origin, born in Sri Lanka, and it is alleged he is

a member/supporter of the “Tamil Tigers” (classified as a terrorist organization).- Issue: can S be deported to Sri Lanka, notwithstanding his refugee status and the possibility that his life or

freedom would be threatened if he is returned there?o Note: s.53(1) (b) allows deportation of a Convention Refugee if the person is (1) a member of an

“inadmissible class” [includes terrorists and those associated with terrorist groups, past and present] AND (2) the Minister is of the opinion that the refugee constitutes a “danger to the security of Canada”

o Multi-stage process involves, among other things, two discretionary decisions made by the Minister: (1) the Minister’s discretionary decision re whether Suresh’s presence in Canada constitutes a

danger to national security [Minister must be “of the opinion that the person constitutes a danger to the security of Canada”]

(2) the Minister’s decision on whether Suresh faces a substantial risk of torture upon return to Sri Lanka

- Held: PU SOR for both discretionary decisionso Highly discretionary, fact based, involved the security of Canadians – and was just after 9/11

- [note: see above for the explanation of Baker in the Suresh decision re: re-weighing of factors]

CUPE v. Ontario (Minister of Labour) (2003, SCC) (“Retired Judges” Case)- Facts: Statute said that “...the Minister shall appoint ... a person who is, in the opinion of the Minister, qualified to

act”. Minister appointed four retired judges to chair arbitration boards; unions objected and argued among other things that the judges had no qualifications or expertise in relation to labour relations. Evidence showed Minister had not inquired into the experience or expertise of the judges in labour relations matters and took the view that the judges were qualified simply by virtue of their experience as judges

- Held: SCC held unanimously that the appropriate SOR was PU but divided 6 to 3 on the application of the standard to the Minister’s decision

- Majority of 6 judges held (per Justice Binnie): o By failing to consider the labour relations expertise of the retired judges, and their acceptability to the

labour relations community in which they would be acting, the Minister had failed to take into account

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important relevant factors that the statute implicitly required be taken into account; therefore the decision to appoint the judges was PU; the appointments in effect, frustrated the objects and purposes of the statute (industrial peace is the objective of act – arbitration takes place of industrial warfare – for it to be effective need credibility) in which the discretionary power was found

o Although broadly-worded ministerial decisions will be accorded high deference, and the Minister should not be “micro-managed” by the courts, the discretion here is NOT unlimited

o Discretion is always constrained by the scheme and objects of the Act Court must ask: “what is the perspective within which the statute is intended to operate?” (i.e.

what are the policy and objects of the Act?) The Court must determine this by construing the Act as a whole.

o In exercising discretion, the Minister must take into account relevant criteria and must exclude from consideration irrelevant criteria.

Court can review to ensure this has been done and especially to see if important relevant factors that have been excluded from consideration altogether – if an excluded relevant factor is key to the legislative scheme, failure to consider it will make the decision PU

o Construction of this statute leads to the conclusion that the compulsory arbitration system was intended by the Legislature to serve as a “neutral and credible substitute for the right to strike and lockout” and to achieve this, the arbitrators must be experienced in labour relations and broadly acceptable to the parties mandatory factors that must be taken into account. Thus, the legislation, properly construed, indicates the Legislature intended the Minister to have regard to relevant labour relations expertise and general acceptability to the labour relations community

o The evidence in this case was that the Minister was not “alive” to these considerations – was not concerned with labour relations expertise or with acceptability to the parties – had excluded these considerations in favour of having judicial experience be the sole criteria in making the appointments - therefore the decision was PU

- Dissenting judges held: o There were no obvious factors that had to be taken into account, so it was not PU for the Minister to

appoint on the basis of the Minister’s opinion regarding who is “qualified” to act; it was not “clearly irrational” for the Minister to consider generalized judicial experience as a qualification, rather than specialized labour relations experience

Khosa (SCC 2009) If discretionary decision + SOR = reasonableness + appropriate factors considered = don’t reweigh

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